## Facts

- South Dakota amended its abortion informed-consent law in 2005 to require physicians to provide specified disclosures before performing an abortion.
- The challenged disclosure (the “suicide advisory”) required physicians to tell patients that an increased risk of suicidal ideation and suicide is a medical risk of abortion.
- Planned Parenthood and a physician providing abortions sued state officials, alleging the advisory violated (1) the Fourteenth Amendment by imposing an undue burden and (2) the First Amendment by compelling physician speech.
- The district court preliminarily enjoined enforcement; an earlier en banc decision vacated that injunction and required further development of whether the disclosures were truthful, nonmisleading, and relevant.
- On remand, the district court invalidated the suicide advisory at summary judgment as untruthful or misleading because suicide was not shown to be a “known medical risk” of abortion; a panel affirmed.
- The Eighth Circuit reheard the case en banc limited to the suicide advisory’s constitutionality.

## Issues

1. Whether requiring physicians to disclose that abortion is associated with an increased risk of suicidal ideation and suicide imposes an undue burden on the right to choose abortion under the Fourteenth Amendment.
2. Whether the same requirement unconstitutionally compels physician speech under the First Amendment because the disclosure is untruthful, misleading, or irrelevant.

## Decision

- The en banc Eighth Circuit reversed the judgment invalidating the suicide advisory and upheld the advisory as constitutional.
- The court construed the advisory as communicating an increased risk/association, not a definitive causal claim that abortion causes suicide.
- On the record, the court held the advisory was truthful and nonmisleading despite medical disagreement, because studies supported a statistically significant association.
- The court held the advisory was relevant to a patient’s decision and did not create a substantial obstacle to obtaining an abortion.
- The court held that, under the governing informed-consent framework, compelled physician disclosure of truthful, nonmisleading, relevant information did not violate the First Amendment.

## Legal Principles

- A state may require abortion-related informed-consent disclosures that are truthful, nonmisleading, and relevant to the patient’s decision, and such disclosures generally do not impose an undue burden.
- A compelled disclosure in the context of medical informed consent may be analyzed under the same “truthful, nonmisleading, and relevant” standard for both undue-burden and compelled-speech challenges.
- A statutory requirement to disclose an “increased risk” may be upheld where the record provides a reasonable medical evidentiary basis for an association, even absent scientific certainty or unanimous medical consensus.
- A disclosure requirement does not constitute an undue burden absent a purpose or effect of placing a substantial obstacle in the path of a person seeking an abortion.

## Conclusion

The en banc Eighth Circuit held South Dakota could require physicians to advise patients that abortion is associated with an increased risk of suicidal ideation and suicide, concluding the disclosure—construed as reporting an increased risk rather than causation—was truthful, nonmisleading, and relevant under the controlling informed-consent standard, and therefore did not violate either the Fourteenth Amendment undue-burden test or physicians’ First Amendment rights.


Planned Parenthood Minn., N.D., S.D. v. Rounds, 686 F.3d 889 (8th Cir. 2012) (en banc)