The South Dakota Effect: A Potential Blow to Abortion Rights

 By Alex Stein

Many of us are familiar with the “California Effect.” California’s hydrocarbon and nitrogen oxide emission standards for cars are more stringent than the federal EPA standards and more costly to comply with. Yet, California’s emission standards have become the national standard since automobile manufacturers have found it too expensive to produce cars with different emission systems – one for California and another for other states – and, obviously, did not want to pass up on California, the biggest car market in the nation.

Such regulatory spillover may also occur in the abortion regulation area as a consequence of the legislative reforms implemented by South Dakota and thirteen other states. These reforms include statutory enactments that require doctors to tell patients that abortion might lead to depression, suicidal thoughts and even to suicide. Failure to give this warning to a patient violates the patient’s right to informed consent and makes the doctor liable in torts.

Studies linking depression to abortion are controversial. By giving those studies governmental recognition, South Dakota and like-minded states have upgraded them into a settled fact for purposes of those states’ medical malpractice laws. This official recognition may affect the application of medical malpractice laws in other states as well.

This regulatory spillover, identifiable as the “South Dakota Effect,” unfolds as follows:

  1. In each and every state, doctors must inform patients about the known risks of the chosen or recommended procedure. This duty is particularly strong in the states that adopted the “patient expectation” standard under which doctors ought to disclose even small risks of a serious harm to the extent those risks are recognized as real, even in a different state. For that reason, abortion providers in sixteen “patient expectation” jurisdictions will feel pressurized to give patients the depression warning despite lack of a statutory requirement similar to South Dakota’s. 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.
  1. This dynamic will increase the number of “depression warning” jurisdictions from 14 to 30. By increasing this number, it will prompt doctors in the remaining 21 states, who abide by the “doctors’ custom” standard, to update their information disclosure protocols for patients seeking abortion. Courts in those states may interpret the widespread introduction of the depression warning as a change in the customary protocols for informed consent. This prospect will induce doctors to align their informed-consent protocols with South Dakota’s. Doctors will likely do this as the cost of incorporating the warning into their informed consent forms is vanishingly small and it prevents malpractice suits that could prove rather costly.

My colleague, Professor Katherine Shaw, and I uncover and analyze this dynamic in our work, The South Dakota Effect: Abortion, Informed Consent, and Federalism. Because studies linking depression to abortion are speculative at best, we argue that this dynamic is detrimental to society. We show that it threatens to impede access to abortion by instilling in abortion patients unnecessary fear and anxiety that may undermine their ability to make informed choices and is broadly damaging to the practice of medicine. We illustrate this phenomenon by the nationwide notification about post-abortion depression issued by the Planned Parenthood Federation of America, one of the nation’s largest providers of reproductive health and abortion services. We therefore call for legislative intervention to prevent South Dakota’s depression warning from taking hold nationwide.

Regulatory spillover is the only thing that the South Dakota and California effects have in common. The activities and incentives that produce those effects differ critically. The California Effect is brought about by actors’ responses to two incentives: economic attractiveness of the local market and the high cost of dual regulatory compliance. These incentives lead to productive activities that might be welfare enhancing (manufacture of cars that minimize damage to the environment). Activities that produce the South Dakota Effect, on the other hand, are neither productive nor welfare enhancing. They include defensive medicine and a self-protecting updating of doctors’ informed-consent protocols.

Our work also uncovers a flaw in the constitutional doctrine of abortion, set up by the Supreme Court’s decisions in Planned Parenthood v. Casey and Gonzales v. Carhart. We show that this doctrine 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.

Comments are welcome!

Leave a Reply

Your email address will not be published. Required fields are marked *