The South Dakota Effect: Abortion, Informed Consent, and Federalism

Abstract

The constitutional law of abortion stands on the untenable assumption that any state’s abortion regulations impact citizens of that state alone. What this assumption misses is that abortion restrictions can impose powerful spillover effects across state borders. This dynamic is particularly salient in the context of informed consent and medical malpractice.Fourteen states, led by South Dakota, have enacted statutes that direct doctors to warn patients, as part of an informed-consent dialogue, that abortion might cause depression (and, in some states, suicide ideation and actual suicide). Because a woman’s risk of developing depression as a result of abortion is low, this mandate has weak empirical foundations. Courts have nonetheless concluded that the Supreme Court’s Casey decision, which upheld Pennsylvania’s abortion-specific informed consent requirements, shields such laws from constitutional challenge.Although courts and scholars have long assumed that medical malpractice law, including the law of informed consent, is an intrastate affair, mandates like South Dakota’s can have profound interstate effects. States divide into two camps when it comes to doctors’ informed consent obligations in the context of medical malpractice law: some look to a reasonable patient’s expectations, while others rely on doctors’ customs. Critically, both standards incorporate information and practices from other jurisdictions; as a result, a doctor’s failure to warn a patient about post-abortion depression may expose her to liability for medical malpractice — even where her own state does not mandate such a warning statutorily. Eliminating this risk by warning a patient that she might develop depression from having an abortion costs the doctor much less than the penalties she might incur for withholding that information. Accordingly, doctors practicing in both “patient expectation” and “doctors’ custom” states may begin informing patients about the risk of post-abortion depression, even in the absence of statutory mandates to do so. Statutes implemented by South Dakota and like-minded states thus threaten to transform informed-consent practices across the country.After uncovering this dynamic — which we term the “South Dakota effect” — we show that it both threatens to impede access to abortion, and is broadly detrimental to the practice of medicine. We therefore call for legislative intervention to prevent heightened informed-consent requirements from taking hold nationwide. We offer two alternative solutions: first, a federal legislative solution; and second, a state-by-state solution.