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Tuesday, September 02, 2008

The Degree To Which Decisions To Undergo Abortions Are Voluntary

Dakota Voice is reviewing the Report of the South Dakota Task Force to Study Abortion, in light of the upcoming November vote on Initiated Measure 11 to end most abortions in South Dakota. Pertinent sections of the report will be reviewed each week for the next several weeks which may shed light on Initiated Measure 11.

First week: The Incorrect Assumptions of the Roe v. Wade Decision

Second Week: What Has Been Learned Since the Roe v. Wade

Third Week: The Current Practice of Abortion in South Dakota

Fourth Week: The Experiences of Women Who Have Had Abortions

Fifth Week: Molecular Biology & Other Science Sheds Light on Abortion

Sixth Week: Science Now Explains the Uniqueness of Every Human Being from Conception

Seventh Week: Children are Surviving Premature Deliveries at Younger Ages

Last Week: Insight to Life from Human Embryology

The following is from Section II.D on the findings of the report: ===================================

The pregnant mother, in virtually every instance, considers having an abortion because she, or others in her life, believes that her circumstances render the timing of motherhood – not motherhood itself – inconvenient or undesirable.12 And while an abortion succeeds in postponing motherhood, it also, as discussed above, destroys the already existing relationship the mother has with her child. That interest enjoys substantial legal protections in other contexts and our public policy is based upon the recognition that this interest of a mother is fundamental in nature and involves an intrinsic natural right. Both South Dakota Law13 and Federal Constitutional Law14 recognize this right of the mother.

In making a decision of whether to undergo or forgo an abortion procedure, the mother must also make a decision about the welfare of her child. The right to do so has been recognized as a constitutionally protected fundamental right. (Meyer v. Nebraska, 262 U.S. 390 (1923); Troxel v. Granville, 530 U.S. 57 (2000); Pierce v. Society of Sisters, 268 U.S. 510 (1925).) Informed consent disclosures about the existence of the child are key because they not only establish the right of the pregnant mother in her relationship with her child, but also her right to protect the child's welfare.

And while the primary purpose of abortion is not medical in nature (the mother does not have an adverse medical condition that requires treatment), it requires a medical procedure. Dr. Stanley Henshaw, Ph.D., a science fellow at the Alan Guttmacher Institute (long associated with Planned Parenthood Federation of America), testified that an abortion provides no medical benefits for the woman who submits to one.

However, because a medical procedure is involved, the policies and laws dealing with informed consent to medical treatment and procedures are directly implicated and applicable. South Dakota employs the common law "Reasonable Patient Standard" of disclosure, under which a physician has a duty to disclose all facts about the nature of the procedure, the risks of
the procedure, and the alternatives to the procedure. (See, Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972) (explaining the Reasonable Patient Standard of disclosure); Weeldon v. Madison, 274 N.W. 2d 367, 374 (S.D. 1985) (South Dakota Common Law adopts the Canterbury standard); see also Savold v. Johnson, 443 N.W. 2d 656 (S.D. 1989) (applying Weeldon, and Canterbury).)

Usually, where a medical procedure is performed, the disclosures about the alternatives relate to alternative medical treatment. However, since in at least 98% of the cases there is no underlying medical condition in need of treatment, the alternatives are non-medical in nature. Essentially, the alternatives for the pregnant mother are to (1) exercise her right to keep her child and raise her child herself or (2) to delay the decision of whether to keep the child by carrying the child to term, gather information about what is best, and decide whether adoption is a better choice for her and her child.

Gail Dirckson, Social Worker with Bethany Christian Services of Sioux Falls, South Dakota, and Sister Mary Carole Curran, Ph.D., ABPP, Executive Director of Catholic Family Services of Sioux Falls, South Dakota, provided extensive testimony of the opportunity for, and merits of, both open and closed adoptions in South Dakota as a healthy and rewarding alternative.

Therefore, in determining whether decisions to undergo abortions are voluntary and informed, we must consider whether adequate information is given and procedures carried out to protect the right of the pregnant mother in her relationship with her child, her right to protect the child's welfare, and her right to protect her own health.

12The 2003 South Dakota Vital Statistics Report of the South Dakota Department of Health reports that among the 819 abortions performed in South Dakota in 2003, in only 16 cases (2%) was it reported that a reason for the abortion was because the mother "would suffer substantial and irrevocable impairment of a major bodily function if the pregnancy continued." Since no description of what condition was asserted, it is impossible to know whether such a threat actually existed in any of these 16 cases. (Report P. 70.) In 525 cases the box checked on the state-provided reporting form stated "The mother did not desire to have the child." The underlying reasons are not recorded. In 366 cases the box checked stated "The mother could not afford the child." Combined, these two reasons appear a total of 891 times. The 891 entries are greater than the total number of abortions because the women are permitted to list more than one reason for submitting to an abortion. However, the information on these forms is, in some ways, incomplete. For instance, there is no box that offers the woman the opportunity to explain that the reason she submitted to an abortion was because the baby’s father or someone else placed demands upon her. Likewise, there is no box that indicates she has reached her decision because she feels she does not have enough time to explore other options.

13South Dakota law has strong policies to protect against uninformed or involuntary waivers or surrenders of a pregnant mother's relationship with her child. For instance, under South Dakota’s adoption statutory scheme, the petition which represents the waiver by a mother of her rights cannot be filed, at the earliest, until five days after the birth of her child. S.D.C.L. 25-5A-4. The petition must set forth the reasons why the mother wants to give up her rights, and an express written consent to the termination of her rights. S.D.C.L. 25-5A-6 (5) & (7). To help insure that her decision is informed, the law requires that the mother receive counseling from an adoption agency, South Dakota Department of Social Services, or a private counselor before she consents to terminate the rights. S.D.C.L. 25-5A-22. The counselor must determine that the waiver of rights is voluntary without undue influence of others; that all other alternatives were examined; must explain likely emotional losses involved; must disclose the legal right to counsel; must discuss the permanent consequences of the decision; and must make an assessment of the ability of the parent to understand the consequences. S.D.C.L. 25-5A-23. This counseling must take place at least fifteen days before the mother petitions the court. A report must be submitted to the court certifying that all of these matters were discussed with the mother and the mother must sign a statement verifying that she understood the counseling. S.D.C.L. 25-5A-24. The court must then hold a hearing before it can terminate the mother’s rights. S.D.C.L. 25-5A-9. Although the statute does not expressly set out the requirement, the Supreme Court of South Dakota has consistently recognized that the court must determine that the consent is knowing, informed and voluntary. See, e.g., Matter of D.D.D., 294 N.W.2d 423, 426 (1980). In the Matter of J.M.J. 368 N.W. 2d 602 (S.D. 1985), the S.D. Supreme Court ruled that a judgment terminating a mother’s rights should be vacated, even if the court held that her decision was informed and voluntary, if the record does not support the court’s finding. The mother’s rights are further protected by law which allows the mother under certain circumstances to withdraw her consent. In Matter of Everett, 286 N.W.2d 810 (1979). Thus, in the adoption context a mother must be fully counseled about other alternatives, can not terminate her rights until after the birth of her child, and her rights cannot be terminated except by a court order entered by a judge following a hearing in which the court concludes, upon an adequate record, that the mother's waiver of her rights was informed, knowing and voluntary.

14The relationship between a mother and her child is a fundamental liberty interest protected by the United States Constitution. Santoski v. Kramer, 455 U.S. 745 (1982). It is perhaps the oldest of the fundamental liberty interests. See, Trowel v. Granville, 530 U.S. 57 (2000); Meyer v. Nebraska, 262 U.S. 390, (1923), and Pierce v. Society of Sisters, 268 U.S. 510 (1925). This liberty interest has its source "in intrinsic human rights, as they have been understood in ‘this Nation's history and tradition.’" Smith v. Organization of Foster Families, 431 U.S. 816 (1977) (quoting Moore v. City of East Cleveland, 431 U.S.494 (1977)). The interest protected is the interest in the existing relationship. Compare Stanley v. Illinois, 405 U.S. 645 (1972); Caban v. Mohammed, 441 U.S. 380 (1979) with Quilloin v. Alcott, 434 U.S. 246 (1978); Lehr v. Robertson, 463 U.S. 248 (1983). In contrast to the cases involving fathers, the mother’s interest in her relationship with her child has always been protected as fundamental. This is because "the mother carries and bears the child, and in this sense her parental relationship is clear." Lehr, supra, 463 U.S. at 260 & n.16 (quoting Caban, supra, 441 U.S. at 397 (dissent by Stewart, J.)).

The 2005 South Dakota Task Force to Study Abortion was created when the South Dakota legislature passed HB 1233 with a bipartisan majority in both houses. The purpose of the task force was "to study abortion and to provide for its composition, scope, and administration." The report was completed in December 2005 after several months of meetings.


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