NEJM vs the South Dakota abortion script

gavelIn the recent US election, several pieces of legislation that aimed to limit reproductive rights were voted down.  Colorado said no to the Definition of a person initiative that would have given fertilized eggs the same rights as humans, and California rejected a proposition that would have required parents to be notified when a patient under 18 has an abortion. Importantly, in South Dakota Measure 11 – which sought to ban abortion in all cases bar incest, rape and danger to the the health or life of the mother – was narrowly defeated.

Despite all this good news, one hefty piece of reproductive rights legislation slipped through the net this year.  In July, following the Planned Parenthood Minnesota vs Rounds court case, statute 34-23A-10.1 was passed.  This measure states that the physician performing an abortion must inform the pregnant mother that “the abortion will terminate the life of a whole, separate, unique, living human being”, that she “has an existing relationship with that unborn human being “, and that she is, supposedly, at “increased risk of suicide ideation and suicide”.

The New England Journal of Medicine has taken up the case of the ‘South Dakota abortion script’, which seems to have been largely ignored by the media.

The Perspective article ‘South Dakota’s Abortion Script — Threatening the Physician–Patient Relationship‘, published in November, outlines the small print of the legislation and issues at stake.  The authors write:

The law requires that doctors give pregnant women a description of medical and “statistically significant” risks of abortion, among which it includes depression and other psychological distress, suicide, danger to subsequent pregnancies, and death. Physicians must tell women the approximate gestational age of the fetus and describe its state of development … The physician must answer all the woman’s questions in writing and enter them into her medical record … Physicians who do not satisfy the statute are subject to license suspension or revocation and may be charged with a class 2 misdemeanor.

In addition, the authors state that the increased risks of psychological distress, depression, and suicide included in the script are not supported by the bulk of the scientific literature, and that the legislation should be viewed in the context of South Dakota’s repeated attempts to outlaw abortion outright, not least in 2005 and 2008.

The article also points out that in forcing doctors to parrot the state’s message as if it were their own opinion, the law violates physicians’ First Amendment rights.  The December 4 Editorial ‘Physicians and the First Amendment‘ picks up on this issue of the right of the physician to freedom of speech.  The “ideological speech” included in the script is clearly in breach of the First Amendment, which enshrines “both the right to speak freely and the right to refrain from speaking at all.”  If the state is able to dictate that doctors give emotive and partisan information about abortions, there is a precedent for the state determine the medical advice given on other contentious issues such as contraception.  The authors of the editorial call for prompt overturning of the law and boldly state:

The South Dakota ‘script law’ is an affront to the First Amendment rights of physicians and an embarrassment to the people of South Dakota.

The New England Journal of Medicine certainly has a lot of clout in the medical community and beyond, but whether they will succeed in overturning law is another matter. What is needed is for the journal and the physician community to mobilize behind this issue and either as a body or via a proxy patient take on South Dakota law the way that the landmark Roe vs Wade case took on the state of Texas. Let’s hope that this issue gets some wider publicity and that someone is willing to take on the state to protect the reproductive and constitutional rights of the people of North Dakota.

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  1. Harriet Hall on Science-Based Medicine has written an interesting post about this issue.

    Harriet says:
    “This is an unconscionable intrusion by the state into the doctor-patient relationship. It would be bad enough if the information in the script were scientifically accurate, but it isn’t. Some of the risks listed by the required script are not supported by the medical literature…This law is just wrong, wrong, wrong on every level.”

    She also references an article in Slate that makes an interesting read.

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