Return of the Scarlet Letter
Nathaniel Hawthorne is alive and well, and currently residing in the State of South Dakota, where his “Scarlet Letter,” “A,” now represents abortion, not adultery. In July 2008, under the laws of South Dakota, physicians there were henceforth required to tell prospective candidates that abortion is the termination of a living human being’s life, to give women a description of the risks of abortion, to provide them with the age and state of development of the fetus, to answer all women’s abortion questions in writing, and to certify in writing that the women mentioned received and understood all the above information. Failure on the physicians’ parts to comply with the statute might result in medical license suspension or revocation, as well as the possibility of being charged with a class 2 misdemeanor. The South Dakota law had been heretofore suspended by a federal injunction, successfully sought by Planned Parenthood, that was lifted on June 27, 2008 (Planned Parenthood Minnesota v. Rounds). That, and the recent U.S. Supreme Court case of Gonzales v. Carhart in 2007, in which it was noted that some women had come to regret their choice of abortion, and might not have chosen abortion, had they been better informed, paved the way for the implementation of the South Dakota abortion law, with its contained informed-consent requirements.
The South Dakota statute, however, will have repercussions far beyond its state borders, as it rallies dormant state legislatures to continue where they left off, enacting laws and seeking legal means to restrict abortions, in the wake of a series of Planned Parenthood setbacks. Physicians, patients, and believers in the sanctity of the physician-patient relationship should, indeed, be worried. The posture taken by South Dakota violates physicians’ First Amendment rights, not only by forcing them to be the couriers of the state’s anti-abortion message, but also by making them part of that message, via a certification process that, in essence, relegates them to the position of guarantors of their patients comprehension of the state’s law. Some legal scholars have gone so far as to conclude that the South Dakota abortion law, and similar legislation drafted by other states, employ “informed consent” as a means to eliminate abortions.
Were that not enough, the controversy surrounding the South Dakota statute has led to some hard questions regarding violation of the constitutional rights of the aborted fetus, punishment of women who do so, and prosecution of physicians “unable” to explain the multivariegated codicils of the statute. Furthermore, some of the scientific information contained in the South Dakota abortion law is inaccurate, at best, and has not been confirmed by the medical literature in regard. To force physicians to dispense such information, without allowing them enough “wiggle room” to provide alternative, more accurate, or perhaps even contradictory scientific material on abortion to their patients is to violate the Hippocratic oath, informed consent, and the physician-patient relationship.
The subject is complex and emotional, and no resolution will be forthcoming soon. Pro-choice, however, is walking a proverbial tightrope, with no safety net below, and its proponents might as well wear large “Scarlet A’s” on their chests, for their redemption is not at hand.
The South Dakota statute, however, will have repercussions far beyond its state borders, as it rallies dormant state legislatures to continue where they left off, enacting laws and seeking legal means to restrict abortions, in the wake of a series of Planned Parenthood setbacks. Physicians, patients, and believers in the sanctity of the physician-patient relationship should, indeed, be worried. The posture taken by South Dakota violates physicians’ First Amendment rights, not only by forcing them to be the couriers of the state’s anti-abortion message, but also by making them part of that message, via a certification process that, in essence, relegates them to the position of guarantors of their patients comprehension of the state’s law. Some legal scholars have gone so far as to conclude that the South Dakota abortion law, and similar legislation drafted by other states, employ “informed consent” as a means to eliminate abortions.
Were that not enough, the controversy surrounding the South Dakota statute has led to some hard questions regarding violation of the constitutional rights of the aborted fetus, punishment of women who do so, and prosecution of physicians “unable” to explain the multivariegated codicils of the statute. Furthermore, some of the scientific information contained in the South Dakota abortion law is inaccurate, at best, and has not been confirmed by the medical literature in regard. To force physicians to dispense such information, without allowing them enough “wiggle room” to provide alternative, more accurate, or perhaps even contradictory scientific material on abortion to their patients is to violate the Hippocratic oath, informed consent, and the physician-patient relationship.
The subject is complex and emotional, and no resolution will be forthcoming soon. Pro-choice, however, is walking a proverbial tightrope, with no safety net below, and its proponents might as well wear large “Scarlet A’s” on their chests, for their redemption is not at hand.
© 2009, Albert M. Balesh, M.D. All rights reserved.
posted by Dr. Al at
3/15/2009 12:32:00 PM
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