boomerang wrote:The article says:
"One of the four new laws requires doctors to inform pregnant women, in writing and in person, no later than twohours before an abortion that the procedure ends the lives of humans and terminates the constitutional relationship women have with their fetuses."
What is the "constitutional relationship"?
What is the impact of terminating the relationship?
Quote:The Legislature finds that, based upon the evidence derived from thirty years of legalized abortions in this country, the interests of pregnant mothers protected under the South Dakota Bill of Rights have been adversely affected as abortions terminate the constitutionally protected fundamental interest of the pregnant mother in her relationship with her child and abortions are performed without a truly informed or voluntary consent or knowing waiver of the woman's rights and interests. The Legislature finds that the state has a duty to protect the pregnant mother's fundamental interest in her relationship with her unborn child.
Boomerang:
It looks like the State of South Dakota not only wants informed consent with respect to the medical procedure . . . but also informed consent with respect to legal rights.
The U.S. Constitution protects "fundamental rights." Whenever a state infringes upon a fundamental right, the state must have a compelling interest in doing so and the means used must be necessary and narrowly tailored to serve that compelling interest.
All parents have a fundamental right to the care, custody, and control of their minor children. See, e.g., Stanley v. Illinois, 405 US 645 (1972):
The Supreme Court wrote:The Court has frequently emphasized the importance of the family. The rights to conceive and to raise one's children have been deemed "essential," Meyer v. Nebraska, 262 U.S. 390, 399 (1923), "basic civil rights of man," Skinner v. Oklahoma, 316 U.S. 535, 541 (1942), and "[r]ights far more precious . . . than property rights," May v. Anderson, 345 U.S. 528, 533 (1953). "It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder." Prince v. Massachusetts, 321 U.S. 158, 166 (1944). The integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment, Meyer v. Nebraska, supra, at 399, the Equal Protection Clause of the Fourteenth Amendment, Skinner v. Oklahoma, supra, at 541, and the Ninth Amendment, Griswold v. Connecticut, 381 U.S. 479, 496 (1965) (Goldberg, J., concurring).
Nor has the law refused to recognize those family relationships unlegitimized by a marriage ceremony. The Court has declared unconstitutional a state statute denying natural, but illegitimate, children a wrongful-death action for the death of their mother, emphasizing that [405 U.S. 645, 652] such children cannot be denied the right of other children because familial bonds in such cases were often as warm, enduring, and important as those arising within a more formally organized family unit. Levy v. Louisiana, 391 U.S. 68, 71 -72 (1968). "To say that the test of equal protection should be the `legal' rather than the biological relationship is to avoid the issue. For the Equal Protection Clause necessarily limits the authority of a State to draw such `legal' lines as it chooses." Glona v. American Guarantee Co., 391 U.S. 73, 75 -76 (1968).
http://laws.findlaw.com/us/405/645.html
The Fourteenth Amendment is the floor. The Fourteenth Amendment protects persons from unreasonable government intrusions upon their fundamental rights. States, through their own constitutions, may offer more protection. Accordingly, when the South Dakota law refers to "constitutional relationship," it is referring to the constitutionally protected relationship between parents and their children. The impact of "terminating that relationship" is simply that no constitutionally protected relationship will exist. The fetus will be aborted and no parent / child relationship will exist that can be protected by the constitution -- and protected from what? Ironic part: Unreasonable STATE INTRUSION.
If the mother chooses NOT to have an abortion and instead chooses to bring the pregnancy to term and give birth to the child -- the State of South Dakota simply wants the mother to know that she has a fundamental right to the care, custody, and control of that child which is constitutionally protected against unreasonable state intrusions (unless the state has a compelling interest in intruding).
The law is really STUPID. Why? Because an abortion is a medical procedure--not a legal procedure that terminates parental rights. Informed consent requires the physician to explain the MEDICAL procedure, alternatives to the procedure, and the risks of the procedure.
NOW, however, the South Dakota legislature wants doctors to inform pregnant women concerning their LEGAL rights under the constitution and that by having an abortion instead of giving live birth, she is "waiving" her fundamental right to have a relationship with that child which is constitutionally protected from unreasonable state intrusion (unless the state has a compelling reason to intrude).
Accordingly, the informed "legal" consent law doesn't go far enough! If the pregnant woman chooses to go forward with the pregnancy and gives birth to a live child (to take advantage of her protected "constitutional relationship" with the child), then she ought to be informed that the father ALSO has a constitutionally protected fundamental right to the care, custody, and control of the child. If informed consent laws for abortion must now embrace the LEGAL implications as well as the medical implications, the pregnant woman ought to be informed, if she gives birth, she could possibly be buying herself a custody battle with the father.
IMO, the law is ridiculous. I guess the abortion clinics in South Dakota may have to place
lawyers* on their staff from now on to make sure the woman is truly informed (as to her legal rights with respect to the child she is carrying) in order to obtain her voluntary consent or knowing waiver of her constitutionally protected rights and interests.
[*After all, lawyers can't practice medicine without a medical license . . . and medical doctors can't practice law without a law license.]
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