Judge delays final ruling in South Dakota abortion case

By Chet Brokaw, The Associated Press | Saturday, March 17, 2007

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PIERRE -- A federal judge has delayed a final ruling in a challenge of a 2005 South Dakota law that would require doctors to tell women seeking abortions that the procedure ends a human life.

U.S. District Judge Karen Schreier of Rapid City said she will not rule on the constitutional issues in the case until a federal appeals court decides issues related to a temporary order that has blocked the state from enforcing the law.

In a recent order, Schreier granted the state's request to put a final ruling on hold until the 8th U.S. Circuit Court of Appeals holds a second hearing on the temporary order.

The lawsuit filed by Planned Parenthood, which operates South Dakota's only abortion clinic in Sioux Falls, contends the law is an undue burden on a woman's right to get an abortion and violates doctors' free-speech rights by forcing them to tell women things the doctors do not believe.

In October, a three-judge panel of the appeal court upheld Schreier's order preventing South Dakota from enforcing the law while the lawsuit challenging it continues.

However, the appeals court in January agreed to rehear the issues involved in that temporary order. All 11 judges intend to take another look at the case and decide whether the state will be blocked from enforcing the law, which tests the limits of what a state can require doctors to tell women before they get abortions.

The rehearing is set for April 11.

Schreier said she decided to delay a final ruling because the appeals court's decision likely will provide guidance on the constitutional law governing the key issues in the case. The judge said that guidance will help her resolve the issues in the next phase of the case.

Planned Parenthood, which is challenging the law, had argued that Schreier should go ahead and make final rulings in the lawsuit because different issues are involved in the two phases.

Both sides in the lawsuit have asked Schreier to decide key points in the dispute on whether the measure is constitutional. Supporters of the law want a trial on the issue of whether a fetus is a human being.

The South Dakota Legislature in recent years has sought to limit or ban abortion.

The 2006 Legislature passed a law that sought to ban nearly all abortions, a measure that was aimed at prompting the U.S. Supreme Court to overturn its 1973 Roe v. Wade ruling that legalized abortion in the nation.

The ban was referred to a public vote, and South Dakota voters rejected it 56 percent to 44 percent.

The 2005 measure is not a direct challenge to the constitutionality of abortion but would test the limits of what a state can require that women be told before getting abortions.

The informed consent law would make doctors tell women that abortions end human lives and may later cause serious psychological problems for women who have abortions. A woman also would have to be told she has a legal relationship with her unborn child and that relationship would be ended by an abortion.

When Schreier issued the order preventing the state from enforcing the law while the lawsuit proceeds, she said Planned Parenthood has a fair chance of succeeding on its claim that the law violates the free-speech rights of doctors.

The law would require that before an abortion can be done, a doctor would have to provide a woman with a written document that includes the statement that "the abortion will terminate the life of a whole, separate, unique, living human being."

The state argues that the required information is medically accurate and supported by science. State lawyers contend the law would not curb reasonable access to abortion in South Dakota.