Huffpost Politics
THE BLOG

Featuring fresh takes and real-time analysis from HuffPost's signature lineup of contributors

Judge H. Lee Sarokin Headshot

Conservatives Claim That the Government Can Order Doctors to Say: "This Is Gonna Hurt!"

Posted: Updated:

Well, not exactly. You may remember that the conservatives forewarned that if the government could require you to buy health insurance (the dreaded mandate) then it could force you to buy broccoli or require you to purchase anything else the government deemed was good for you. Justice Scalia picked up on the contention during argument before the Supreme Court. Not since the cry of: "Keep Government Out of My Medicare" has there been a greater demonstration of conservative hypocrisy than in South Dakota.

South Dakota adopted legislation which required doctors to inform women seeking abortions that they face an increased risk of suicide if they chose to undergo the procedure. Astonishingly, the 8th Circuit Court of Appeals actually upheld the legislation. Apart from even considering the legal or factual basis for the ruling (or lack of it), consider what the "less government" advocates have wrought. Imagine the idea of government instructing doctors as to what they can or cannot say to their patients! What next -- doctors mandated to tell patients before an injection: "This is gonna hurt!"

Just suppose the doctor believes that there is no demonstrated increased risk of suicide after abortion or that the contention is just untrue (as it probably is)? The Court of Appeals rejected the argument that the statute placed an undue burden on abortion rights (which it does); and violated the free speech rights of both the patient and the doctor (which it clearly does). In a breathtaking moment of burden shifting, the 8th Circuit held that the challengers to the legislation had the burden of proving that the compelled advice was "either untruthful, misleading or not relevant to the patient's decision to have an abortion."

Talk about requiring the public to eat broccoli! It would be impossible to list the number of requirements that could be imposed upon doctors as to what they may or may not say to their patients if this is the law. Among others, doctors could be required to tell gay people to "go get cured" just because some looney legislature accepts such "scientific" nonsense.

The legislation is an obvious attempt to discourage abortions through these coercive means, which might be a worthwhile goal for some, but not if emanating from the government. Coming from "the less government folks" it is laughable, if it were not so sad. If requiring everyone to buy health insurance is evil: but requiring doctors to give unwanted (or untrue) medical advice is good; I vote for evil!