In Planned Parenthood of Southeastern Pennsylvania v. Casey, (1) the Supreme Court affirmed the government's power to compel certain speech acts from physicians in the course of ensuring informed patient consent to abortion. The Court recognized that this ability must be exercised in a manner that does not create an "undue burden" upon abortion rights; at a minimum, Casey requires compelled information to be truthful, nonmisleading, and relevant to the making of a "mature and informed" patient decision. (2) Recently, in Planned Parenthood Minnesota, North Dakota, South Dakota v. Rounds, (3) the Eighth Circuit, sitting en banc, upheld a problematic provision of South Dakota's informed consent statute by construing it in a counterintuitive, albeit technically permissible, way. The Rounds court applied Casey's undue burden test to resolve both the due process and compelled speech components of the case, and declined to address whether salient First Amendment principles had independent bearing on its compelled speech analysis. Instead, the Eighth Circuit should have per-formed a more robust First Amendment inquiry, calibrated toward ensuring clinically and professionally appropriate speech within the doctor-patient relationship. Such an inquiry may have limited the range of acceptable statutory saving constructions available to the court.
In 2005, South Dakota enacted House Bill 1166 with the goal of "revis[ing] the physician disclosure requirements to be made to a woman contemplating submitting to an abortion." (4) The codified statute requires abortion providers to give patients a written statement describing "all known medical risks of the procedure and statistically significant risk factors to which the pregnant woman would be subjected," (5) including "[i]ncreased risk of suicide ideation and suicide." (6)
Planned Parenthood promptly filed a preliminary injunction motion challenging the constitutionality of the "suicide advisory" and several other provisions. (7) A federal district court in South Dakota granted the preliminary injunction, (8) finding that plaintiffs were likely to succeed on their First Amendment claim, (9) and a panel of the Eighth Circuit affirmed. (10) Sitting en banc, the Eighth Circuit reversed and remanded the panel's decision and vacated the preliminary injunction. (11) Drawing its test from Casey, the en banc majority found that Planned Parenthood had not proved that the compelled disclosures were untruthful, misleading, or irrelevant. (12) On remand, the district court granted summary judgment for Planned Parenthood on the unconstitutionality of the suicide advisory, (13) finding no evidence to establish that suicide was a "known medical risk" of abortion.(14) A second panel of the Eighth Circuit affirmed this determination. (15)
The en banc Eighth Circuit vacated the panel's decision to invalidate the suicide advisory (16) and granted partial rehearing en banc to address that issue. (17) Writing for the majority, Judge Gruender (18) reversed the district court's finding that the advisory both unduly burdened abortion rights and violated the First Amendment rights of physicians. (19) The court began by affirming its belief that Casey's threepart standard governed both questions: "[T]o succeed on either its undue burden or compelled speech claims, Planned Parenthood must show that the disclosure at issue 'is either untruthful, misleading or not relevant to the patient's decision to have an abortion.'" (20)
The court then proceeded to parse the statutory language at issue -- specifically, it found that the statute did not actually require doctors to disclose a causal relationship between abortion and suicide, (21) a central premise of the opinions below. Instead, zeroing in on the term "increased risk," the court argued that "[t]he peer-reviewed medical literature in the record ... consistently uses the term 'increased risk' to refer to a relatively higher probability of an adverse outcome in one group compared to other groups -- that is, to 'relative risk. …