In a 2-1 ruling, the Eighth Circuit has protected the free speech rights of doctors and the right to choose of their patients by halting the enforcement of a South Dakota law that would have commandeered the doctor-patient relationship in the service of an ideological agenda. The 2005 law requires doctors performing abortions to tell their patients that the procedure will “terminate the life of a whole, separate, unique, living human being” and that the patient has “an existing relationship with that unborn human being.” Doctors who refuse to make these “disclosures” could face criminal prosecution. After Planned Parenthood brought suit, the district court issued a preliminary injunction against the law, saying that the state cannot require doctors to “espouse the state’s theology.”
Reviewing the district court’s injunction, Eighth Circuit Judges Diana Murphy (appointed by President Clinton) and Michael Molloy (appointed by President G.W. Bush) agreed that the doctors were likely to succeed in proving that the law violated their First Amendment rights against compelled speech. The Court stated that the law “does little to promote independent decision making and may actually exacerbate any adverse psychological consequences of the procedure.” Judge Raymond Gruender (also appointed by President G.W. Bush) dissented, actually stating that the disclosure was truthful, non-misleading and non-ideological on its face. Fortunately, Judge Gruender’s version of the truth didn’t carry the day in this case.