Adam Liptak writes a column called "Sidebar" for the New York Times, about legal matters in the news. Unfortunately, the column is stuck behind the Times's "TimeSelect" wall, where many people can't see it.

On the off-chance that you can get to it, though, today's column, entitled "Putting the Government's Words in the Doctor's Mouth," is especially interesting for readers of this blog. The topic under consideration is a cluster of court opinions -- and counter-opinions -- about a disputed South Dakota law, the 2005 "Women's Health and Human Life Protection Act."

Women's health and human life: Who could be against protecting such things?, you might wonder. And then you might reconsider your confusion, having thought separately about the two halves of the act's name. Does "women's health" serve as a common code phrase for anything else? No? How about "human life"?

Oh.

What the South Dakota law will require is that doctors there "tell women seeking abortions that they 'will terminate the life of a whole, separate, unique, living human being.'" (Note: That's a quotation from Liptak's column, not from the text of the Act itself.)

From the "Sidebar" piece:

But there is, according to the federal courts that have so far blocked the South Dakota law, a constitutional flaw in how the state seeks to go about informing women of its views. The problem with the law, the courts said, is that it would hijack the doctor-patient relationship.

"The South Dakota statute," Judge Karen E. Schreier of Federal District Court in Rapid City, S.D., wrote in issuing a preliminary injunction in 2005, "requires abortion doctors to enunciate the state’s viewpoint on an unsettled medical, philosophical, theological and scientific issue — that is, whether a fetus is a human being."

...

South Dakota can, of course, say what it likes about abortion. "If the state wants to have a billboard, good for the state," Timothy E. Branson, a Minneapolis lawyer who represents Planned Parenthood in its challenge to the law, said in an interview. Indeed, as lawyers for South Dakota said in a brief last year, the state publishes pamphlets and maintains a Web site setting out its position (www.state.sd.us/applications/ph17abortioninfo).

Lawyers for the state say it is also entitled to make doctors into its publicity agents, though that is not how they put it.

"The point," Lawrence E. Long, the state attorney general, wrote in a brief to the appeals court this spring, "is to require abortion providers to do a better job at what they should already be doing. That is, they should provide their patients with an accurate description of what they are aborting."

The Supreme Court has said that doctors performing abortions may be forced to convey truthful information, and not only about medical issues. In 1992, the court upheld a Pennsylvania abortion law that required doctors to tell their patients that they might be eligible for child support if they decided to carry their pregnancies to term.

But other cases say the government cannot force anyone to disseminate ideological messages.

At the argument in April, John P. Guhin, a lawyer for the state, said doctors could paraphrase the required disclosures, which must be made in writing and signed by the patient on every page. He suggested that doctors could also express their disagreement, though the law requires them to certify that their patients have understood the disclosures. Should there be questions, doctors must answer them in writing. Failure to follow the procedures is a crime.

If you don't see a problem with South Dakota's initiative (or Pennsylvania's for that matter), imagine a completely different situation for a moment: Let's say the state in question isn't South Dakota, but California, or Vermont -- one of those places, y'know, where hippies continue to flourish even in the halls of the Statehouse. Imagine that the legislature there establishes a new law requiring that recruiters for the military (including the National Guard) lay out for potential recruits all the ghastly things that might happen to them in combat. Furthermore, if young men and women insist knowing the reasons to enlist anyway, the recruiters must answer these questions in writing. Recruiters who fail to do so can face criminal punishment.

Or heck, why not force newspaper publishers to notify all readers, "Some of the things you read herein will turn out not to be true." Or force clergymen to point out that none of the assertions which their congregations may hear in church may, in the end, have any bearing on reality. Or...

Okay, okay. Sarcasm off.

Labels: Abortion, Adam Liptak, courts, New York Times, South Dakota