Perhaps it’s lawyer’s daughter in me, but I think watching courts rule on presentation of data is totally fascinating to me.
Today, the 8th Circuit Court of Appeals had to make just such a call.
The case was Planned Parenthood v Mike Rounds and was a challenge to a 2005 law that required doctors to inform patients seeking abortions that there was “an increased risk of suicide ideation and suicide”. This was part of the informed consent process under the “all known medical risks” section.
Planned Parenthood challenged on the grounds that this was being presented as a causal link, and was therefore was a violation of the doctor’s freedom of speech.
It’s a hot topic, but I tried to get around the controversy to the nuts and bolts of the decision. I was interested how the courts evaluated what research should be included and how.
Apparently the standard is as follows:
…while the State cannot compel an individual simply to speak the State’s ideological message, it can use its regulatory authority to require a physician to provide truthful, non-misleading information relevant to a patient’s decision to have an abortion, even if that information might also encourage the patient to choose childbirth over abortion.” Rounds, 530 F.3d at 734-35; accord Tex. Med. Providers Performing Abortion Servs. v. Lakey, 667 F.3d 570, 576-77 (5th Cir. 2012).
So in order to be illegal, disclosures must be proven to be ““either untruthful, misleading or not relevant to the patient’s decision to have an abortion.”
It was the misleading part that the challenge focused on. The APA has apparently endorsed the idea that any link between abortion and suicide is NOT causal. The theory is that those with pre-existing mental health conditions are both more likely to have unplanned pregnancies and to later commit suicide. It was interesting to read the huge debate over whether the phrase “increased risk” implied causation (the court ruled causation was not implicit in this statement).
Ultimately, it was decided that this statement would be allowed as part of informed consent. The conclusion was an interesting study in what the courts will and will not vouch for:
We acknowledge that these studies, like the studies relied upon by the State and Intervenors, have strengths as well as weaknesses. Like all studies on the topic, they must make use of imperfect data that typically was collected for entirely different purposes, and they must attempt to glean some insight through the application of sophisticated statistical techniques and informed assumptions. While the studies all agree that the relative risk of suicide is higher among women who abort compared to women who give birth or do not become pregnant, they diverge as to the extent to which other underlying factors account for that link. We express no opinion as to whether some of the studies are more reliable than others; instead, we hold only that the state legislature, rather than a federal court, is in the best position to weigh the divergent results and come to a conclusion about the best way to protect its populace. So long as the means chosen by the state does not impose an unconstitutional burden on women seeking abortions or their physicians, we have no basis to interfere.
I did find it mildly worrisome that the presumption is that the state legislators are the ones evaluating the research. On the other hand, it makes sense to put the onus there rather than the courts. It’s good to know what the legal standards are though….it’s not always about the science.