Planned Parenthood Minnesota, North Dakota, South Dakota et al v. Daugaard et al
Filing
374
ORDER denying 204 Motion dissolve what remains of the preliminary injunction ; denying as moot 300 Motion to Expedite. Signed by U.S. District Judge Karen E. Schreier on 8/20/2021. (JLS)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
PLANNED PARENTHOOD MINNESOTA,
NORTH DAKOTA, SOUTH DAKOTA and
CAROL E. BALL, M.D.;
4:11-CV-04071-KES
Plaintiffs,
vs.
KRISTI NOEM, Governor, JASON
RAVNSBORG, Attorney General, KIM
MALSAM-RYSDON, Secretary of Health,
Department of Health, and JEFFREY A.
MURRAY, M.D., President of Board of
Medical and Osteopathic Examiners, in
their Official Capacities;
ORDER DENYING MOTION TO
DISSOLVE WHAT REMAINS OF THE
PRELIMINARY INJUNCTION AND
DENYING AS MOOT MOTION TO
EXPEDITE
Defendants,
ALPHA CENTER and BLACK HILLS
CRISIS PREGNANCY CENTER, d/b/a
Care Net Pregnancy Resource Center,
Intervenor Defendants.
Defendants, Kristi Noem, Governor, Jason Ravnsborg, Attorney General,
Kim Malsam-Rysdon, Secretary of Health, Department of Health, and Jeffrey A.
Murray, M.D., President of Board of Medical and Osteopathic Examiners, in
their Official Capacities (state defendants), and intervenors, Alpha Center and
Black Hills Crisis Pregnancy Center (pregnancy help center [PHC] intervenors),
move to dissolve what remains of the preliminary injunction that the court
granted on June 30, 2011 (Docket 39) and dissolved in part on June 27, 2012
(Docket 84) and June 11, 2013 (Docket 129). Docket 204. The state defendants
and PHC intervenors also move to expedite resolution of their motion to
dissolve. Docket 300. Plaintiffs, Planned Parenthood Minnesota, North Dakota,
and South Dakota and Carol E. Ball, M.D. (Planned Parenthood), oppose both
motions. Dockets 310, 321.
I.
Whether Planned Parenthood Has Standing to Bring this Suit
“Article III of the Constitution limits the ‘judicial power’ of the United
States to the resolution of ‘cases’ and ‘controversies.’ ” Valley Forge Christian
Coll. v. Ams. United for a Separation of Church & State, 454 U.S. 464, 471
(1982). A “case or controversy” requires “a definite and concrete controversy
involving adverse legal interests at every stage in the litigation.” Gray v. City of
Valley Park, 567 F.3d 976, 983 (8th Cir. 2009) (quoting McFarlin v. Newport
Special Sch. Dist., 980 F.2d 1208, 1210 (8th Cir. 1992)). For a case or
controversy to exist under Article III, and thus for a federal court to have
jurisdiction, the plaintiff must have standing to bring suit. Id. Article III
standing may be raised at any time during the litigation by either party or by
the court. Id.
Whether a plaintiff has standing to bring a claim based on another’s legal
rights, rather than their own, is an issue of prudential standing and does not
implicate Article III. June Med. Servs. L.L.C. v. Russo, 140 S. Ct. 2103, 2117
2
(2020). Courts generally allow plaintiffs to “assert third-party rights in cases
where the ‘enforcement of the challenged restriction against the litigant would
result indirectly in the violation of third parties’ rights.’ ” Id. at 2118-19
(quoting Kowalski v. Tesmer, 543 U.S. 125, 130 (2004) (emphasis in the
original)). “[T]he relationship between the litigant and the third party may be
such that the former is fully, or very nearly, as effective a proponent of the right
as the latter.” Singleton v. Wulff, 428 U.S. 106, 115 (1976).
The Supreme Court has “long permitted abortion providers to invoke the
rights of their actual or potential patients in challenges to abortion-related
regulations.” June Med. Servs., 140 S. Ct. at 2118 (citing Whole Woman’s
Health v. Hellerstedt, 136 S. Ct. 2292, 2314 (2016); Gonzales v. Carhart, 550
U.S. 124, 133 (2007); Ayotte v. Planned Parenthood of N. New Eng., 546 U.S.
320, 324 (2006); Stenberg v. Carhart, 530 U.S. 914, 922 (2000); Mazurek v.
Armstrong, 520 U.S. 968, 969-70 (1997) (per curiam); Planned Parenthood of
Se. Penn. v. Casey, 505 U.S. 833, 845 (1992) (majority opinion); Akron v. Akron
Cntr. for Reproductive Health, Inc., 462 U.S. 416, 440 n.30 (1983), overruled on
other grounds by Casey, 505 U.S. at 882; Planned Parenthood of Cent. Mo. v.
Danforth, 428 U.S. 52, 62 (1976); Doe v. Bolton, 410 U.S. 179, 188-89 (1973)).
This is because the abortion provider “is the party upon whom the challenged
statute imposes ‘legal duties and disabilities’ ” and is thus “ ‘the obvious
claimant’ and ‘the least awkward challenger’ ” to laws that affect abortion
access. Id. at 2119 (quoting Craig v. Boren, 429 U.S. 190, 196-97 (1976)).
3
Here, PHC intervenors argue, first, that Planned Parenthood would not
suffer any “injury-in-fact” were the injunction to be dissolved, and that thus, it
lacks third party standing. Docket 205 at 39-40. But Planned Parenthood is
plainly an entity “upon whom the challenged statute imposes ‘legal duties and
disabilities,’ ” because the enjoined provisions of the South Dakota law place
requirements on Planned Parenthood’s physicians’ practice of medicine and on
the operation of clinics. June Med. Servs., 140 S.Ct. at 2119; see SDCL § 3423A-56(3). Further, failure to comply with the enjoined provisions would expose
Planned Parenthood and its physicians to the threat of civil liability. SDCL
§ 34-23A-60. Thus, as the Supreme Court has repeatedly held, Planned
Parenthood has standing to sue based on its own injury to enforce the
Constitutional rights of its patients.
Second, PHC intervenors argue that Planned Parenthood is not an
“effective proponent of the right” at issue as would be pregnant women seeking
abortion or PHC intervenors themselves. Docket 205 at 40-42; Singleton, 428
U.S. at 115. They seem to claim that Planned Parenthood’s and pregnant
women’s interests are at odds because Planned Parenthood challenges a law
ostensibly aimed at protecting pregnant women. Docket 205 at 40. But the
June Medical Services plurality squarely addressed this issue and found that
the appearance of conflict is a “common feature of cases in which [the Court
has] found third-party standing.” 140 S. Ct. at 2119. Legislatures often enact
restrictions on medical care and treatment to protect patients, but medical
providers nonetheless continue to be the parties best positioned to challenge
4
those laws. See id. at 2119-20. Thus, the PHC intervenors’ attempt to
distinguish this case from the numerous instances where courts have found
third party standing for abortion physicians fails.
This case is in line with decades of Supreme Court and Eighth Circuit
precedent that allow abortion providers to sue to defend the rights of their
patients. PHC intervenors point to no legal precedent or distinguishing facts
that indicate otherwise. Thus, Planned Parenthood has standing to bring this
suit and the court has jurisdiction to hear it.
II.
Whether to Dissolve What Remains of the Injunction
A.
Procedural Background
In 2011, the South Dakota Legislature passed the act at issue here,
House Bill 1217 (HB 1217). The act is codified, following legislative
amendments, at SDCL §§ 34-23A-53 through 34-23A-62. The court initially
enjoined from taking effect all sections of the act except for section 5 (now
SDCL § 34-23A-58, establishing registries of pregnancy help centers),
subsection 1 of section 7 (now SDCL § 34-23A-53(1), defining pregnancy help
center), and subsection 5 of section 9 (now SDCL § 34-23A-61(5), stating
patients may not waive the act’s requirements). Docket 39.
Following joint motions by the parties due to changes in the facts and
law, the court later dissolved all provisions of the injunction except as to three
portions of the law. See Dockets 82, 129. The first portion that remains
enjoined, SDCL § 34-23A-56(3), states that prior to scheduling an abortion, a
physician must:
5
[P]rovide [the pregnant woman] with written instructions that set
forth the following:
(a) That prior to the day of any scheduled abortion the pregnant
mother must have a consultation at a pregnancy help center at
which the pregnancy help center shall inform her about what
education, counseling, and other assistance is available to help the
pregnant mother keep and care for her child, and have a private
interview to discuss her circumstances that may subject her
decision to coercion;
(b) That prior to signing a consent to an abortion, the physician shall
first obtain from the pregnant mother, a written statement that she
obtained a consultation with a pregnancy help center, which sets
forth the name and address of the pregnancy help center, the date
and time of the consultation, and the name of the counselor at the
pregnancy help center with whom she consulted[.]
The second enjoined portion, SDCL § 34-23A-59, states: 1
A pregnancy help center consultation required by §§ 34-23A-53 to
34-23A-59.2, inclusive, shall be implemented as follows:
(1) The pregnancy help center shall be permitted to:
(a) Interview the pregnant mother to determine whether the
pregnant mother has been subject to any coercion to have an
abortion, or is being pressured into having an abortion;
(b) Provide counseling in connection with any coercion or pressure;
(c) Inform the pregnant mother in writing or orally, or both, of the
counseling, education, and assistance available to the pregnant
mother to assist her in maintaining her relationship with her unborn
child and in caring for the child through the pregnancy help center
or any other organization, faith-based program, or governmental
program;
(d) Provide a statement orally and in writing to the pregnant mother
that “an abortion will terminate the life of a whole, separate, unique,
living human being,” and provide counseling in lay terms that
SDCL § 34-23A-59 was modified twice after the court’s 2011 order, in 2016
(2016 S.D. Sess. Laws ch. 179 § 3) and 2018 (2018 S.D. Sess. Laws ch. 205
§ 16). This text represents the law in its current form. Changes to the law and
their impact on the 2011 injunction order are discussed below.
1
6
explain this disclosure, and to ascertain that the pregnant mother
understands this disclosure, and for the purpose of this disclosure,
the definition of human being found in subdivision 34-23A-1(4)
applies; and
(e) Provide statements orally and in writing setting forth the
disclosures required by subsections 34-23A-10.1(1)(c) and (d) and
provide counseling in lay terms that explain those disclosures. The
pregnancy help center may, if it deems it appropriate, discuss
matters pertaining to adoption;
(2) The pregnancy help center, its agents, or employees may not:
(a) Discuss with any pregnant mother religion or religious beliefs,
either of the mother or the counselor, unless the pregnant mother
consents in writing;
(b) Discuss the physical or psychological risks to a woman posed by
an abortion. However, if, during the mandatory pregnancy help
center consultation interview, the pregnant mother requests the
opportunity to discuss the risks of an abortion with pregnancy help
center personnel, the pregnancy help center may schedule a
separate and distinct appointment for the pregnant mother to meet
with a physician for the purpose of discussing the physical and
psychological risks of abortion. Any requests shall be evidenced in
writing signed by the pregnant mother;
(3) The pregnancy help center is under no obligation to communicate
with the abortion provider in any way, and is under no obligation to
submit any written or other form of confirmation that the pregnant
mother consulted with the pregnancy help center. The pregnancy
help center may voluntarily provide a written statement of
assessment to the abortion provider, whose name the woman shall
give to the pregnancy help center, if the pregnancy help center
obtains information that indicates that the pregnant mother has
been subjected to coercion or that her decision to consider an
abortion is otherwise not voluntary or not informed. The physician
shall make the physician's own independent determination whether
or not a pregnant mother's consent to have an abortion is voluntary,
uncoerced, and informed before having the pregnant mother sign a
consent to an abortion. The physician shall review and consider any
information provided by the pregnancy help center as one source of
information, which in no way binds the physician, who shall make
an independent determination consistent with the provisions of §§
34-23A-53 to 34-23A-59.2, inclusive, the common law
requirements, and accepted medical standards;
7
(4) Any written statement or summary of assessment prepared by
the pregnancy help center as a result of counseling of a pregnant
mother as a result of the procedures created by §§ 34-23A-53 to 3423A-59.2, inclusive, may be forwarded by the pregnancy help center,
in its discretion, to the abortion physician. If forwarded to the
physician, the written statement or summary of assessment shall be
maintained as a permanent part of the pregnant mother's medical
records. Other than forwarding such documents to the abortion
physician, no information obtained by the pregnancy help center
from the pregnant mother may be released, without the written
signed consent of the pregnant mother or unless the release is in
accordance with federal, state, or local law;
(5) Commencing on September 1, 2016, the counseling authorized
pursuant to this section shall be conducted in accordance with the
Uniform Policy and Procedures Guidelines developed and
promulgated by the South Dakota Association of Registered
Pregnancy Help Centers and adopted in 2015.
Nothing in §§ 34-23A-53 to 34-23A-59.2, inclusive, may be
construed to impose any liability upon a pregnancy help center.
However, the failure of a pregnancy help center to comply with the
conditions of § 34-23A-58.1, 34-23A-59.1 or this section for being
authorized to provide the pregnancy help center counseling, if
uncorrected, may result in the Department of Health removing the
pregnancy help center from the state's registry of pregnancy help
centers.
The third enjoined provision is that portion of SDCL § 34-23A-61(4) that is in
italics, and states:
(4) The pregnant mother has a right to rely upon the abortion doctor as
her source of information, and has no duty to seek any other source of
information, other than from a pregnancy help center as referenced in
§§ 34-23A-5b and 34-23A-57, prior to signing a consent to an abortion[.]
In the 2011 order granting preliminary injunction, the court performed
an analysis under the factors laid out in Dataphase Sys., Inc. v. C L Sys., Inc.,
640 F.2d 109 (8th Cir. 1981) and determined that injunction of the pregnancy
help center requirement was appropriate under existing law and the facts
8
before the court. See Docket 39 at 4-61. This order was not appealed. PHC
intervenors and state defendants now move to dissolve the injunction as to
SDCL § 34-23A-59 and SDCL § 34-23A-56(3), citing alleged “overwhelming”
changes of circumstances since the court issued the 2011 injunction. Docket
205 at 14.
B.
Analysis
A preliminary injunction’s purpose is to preserve the status quo until the
merits of an action are resolved. Dataphase Sys., Inc., 640 F.2d at 113. In
determining whether to grant a preliminary injunction, the court considers “(1)
the threat of irreparable harm to the movant; (2) the state of balance between
this harm and the injury that granting the injunction will inflict on other
parties litigant; (3) the probability that the movant will succeed on the merits;
and (4) the public interest.” Id. at 114. “A party seeking modification or
dissolution of an injunction bears the burden of establishing that a significant
change in facts or law warrants . . . dissolution of the injunction.” Sharp v.
Weston, 233 F.3d 1166, 1170 (9th Cir. 2000); cf. Rufo v. Inmates of Suffolk
Cnty. Jail, 502 U.S. 367, 383 (1992) (party moving for “modification of a
consent decree bears the burden of establishing that a significant change in
circumstances warrants revision”).
The court may determine whether to dissolve the injunction based on
what is “equitable in light of subsequent changes in the facts or the law, or for
any other good reason.” Movie Sys., Inc. v. MAD Minneapolis Audio Distribs.,
9
717 F.2d 427, 430 (8th Cir. 1983). Whether to dissolve a preliminary injunction
is within the district court’s discretion. See Waste Mgmt., Inc. v. Deffenbaugh,
534 F.2d 126, 129 (8th Cir. 1976). Because this motion asks the court to
dissolve the preliminary injunction due to changed law and facts—and is not
an appeal of the original injunction or a motion for reconsideration—the court
reviews whether dissolving the remaining injunction is “equitable in light of
subsequent changes in the facts or the law, or for any other good reason.”
Movie Sys., Inc., 717 F.2d at 430. 2 PHC intervenors and state defendants bear
the burden of showing that changed facts or law merit dissolution of the
remaining injunction.
1.
Success on the Merits: Due Process and Equal Protection
The court first addresses the PHC intervenors’ assertion that “Due
Process requires” the state to mandate counseling before a woman receives an
abortion. Docket 205 at 16; Docket 351 at 9-16. This argument was not raised
during the original preliminary injunction briefing because PHC intervenors did
not move to intervene until after the injunction was granted.
The Due Process Clause of the Fourteenth Amendment protects against
“the deprivation by state action of a constitutionally protected interest in ‘life,
PHC intervenors and state defendants urge the court to “revisit” existing
precedent, specifically Roe v. Wade, 410 U.S. 113 (1973) and related United
States Supreme Court and Eighth Circuit cases that recognize a pregnant
woman’s right to access abortion. Docket 271 at 3. The court declines to do so
and treats all relevant Eighth Circuit and Supreme Court case law as binding.
The court considers only changes to the relevant precedent since 2011 and
does not consider the correctness of higher courts’ decisions.
2
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liberty, or property’ . . . without due process of law.” Zinermon v. Burch, 494
U.S. 113, 125 (1990). The protections of the Fourteenth Amendment are
triggered by state action. See, e.g., Santosky v. Kramer, 455 U.S. 745, 747-48
(1982) (“Before a State may sever completely and irrevocably the rights of
parents in their natural child, due process requires that the State support its
allegations by at least clear and convincing evidence.”); Lugar v. Edmondson Oil
Co., Inc., 457 U.S. 922, 924 (1982) (“Because the [Fourteenth] Amendment is
directed at the States, it can be violated only by conduct that may be fairly
characterized as ‘state action.’ ”); S.S. v. McMullen, 225 F.3d 960, 962 (8th Cir.
2000) (en banc) (“[T]he constitutional right to be free from bodily harm is a
right secured only against state actors, not against private ones: The purpose
of the fourteenth amendment ‘was to protect the people from the State, not to
ensure that the State protected them from each other.’ ” (quoting DeShaney v.
Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 196 (1989))). There is no
state action present when a pregnant woman terminates her pregnancy at a
Planned Parenthood clinic. Thus, the Due Process Clause does not apply and
the State is not required to provide any due process protections to a woman
before she undergoes an abortion at a Planned Parenthood clinic.
PHC intervenors argue that the State “expressly authorizes” abortions via
its statutory scheme and that the statutory scheme constitutes “state action.”
Docket 351 at 14-15. Mere “authorization” via statute does not amount to state
action. The existence of a statute authorizing abortion cannot be “fairly
characterized as ‘state action.’ ” Lugar, 457 U.S. at 924. The due process rights
11
of a woman are not implicated when she consults with a doctor at Planned
Parenthood and the State is not required to implement procedural safeguards
consistent with due process. 3
PHC intervenors argue that Due Process protections apply here because
they apply in an adoption proceeding, where the State, via a court order, severs
a parent’s rights to associate with and care for their child. Santosky, 455 U.S.
at 747-48. A court order is a state action under the Fourteenth Amendment.
Cf. Shelley v. Kraemer, 334 U.S. 1, 14 (“That the action of state courts and of
judicial officers in their official capacities is to be regarded as action of the
State within the meaning of the Fourteenth Amendment, is a proposition which
has long been established by decisions of this Court.”). In an abortion
procedure at a Planned Parenthood clinic, unlike in an adoption proceeding, no
court order authorizes the abortion. Thus, there is no state action.
PHC intervenors also style their argument regarding adoption counseling
as an Equal Protection claim, alleging that women terminating their parental
rights via adoption enjoy greater protection in the form of mandatory
counseling than do women terminating those rights via abortion. See Docket
205 at 46-48. South Dakota law requires that, before a birth parent “petition[s]
the court for the voluntary termination of parental rights,” the parent must
PHC intervenors urge the court to address the “tension” between a woman’s
right to maintain a relationship with her child and her right to obtain an
abortion and note that no court has yet addressed this tension. Docket 351 at
16-17. No court has addressed this “tension” because it is not a tension at all.
A woman’s right to maintain a relationship with her child free from state
interference is not in tension with her right to obtain an abortion free from
state interference.
3
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obtain “counseling regarding the termination.” SDCL § 25-5A-22. As discussed
above, the rights terminated in an adoption proceeding are terminated by the
State through a court order. Unlike in a court-ordered adoption proceeding, the
State does not terminate parental rights in an abortion. While those who are
similarly situated must be treated alike, F.S. Royster Guano Co. V. Virginia, 253
U.S. 412, 415 (1920), a woman whose parental rights are being terminated by
state action is not similarly situated to one who chooses to terminate those
rights via abortion of an unborn child at a private clinic. Thus, the court finds
PHC intervenors unlikely to succeed on the merits of their equal protection
claim.
2.
Success on the Merits: First Amendment
In the 2011 injunction order, the court analyzed the pregnancy help
center requirement under the strict scrutiny standard articulated in Wooley v.
Maynard, 430 U.S. 705, 715-16 (1977), and found that the requirement
“implicate[d] First Amendment protections” and was not “narrowly tailored to
serve a compelling state interest.” Docket 39 at 7-16 (quoting Planned
Parenthood Minn., N.D., S.D. v. Rounds, 530 F.3d 724, 733 (8th Cir. 2008) (en
banc)). The court thus found that Planned Parenthood was likely to succeed on
the merits of its First Amendment challenge to the pregnancy help center
requirement.
a.
Whether strict scrutiny applies
PHC intervenors and state defendants argue that strict scrutiny is not
the appropriate standard here, because the pregnancy help center requirement
13
arises in the context of informed consent to a medical procedure. See Docket
205 at 51-52; Docket 271 at 31-34; Docket 351 at 21. “ ‘[A] requirement that a
doctor give a woman certain information as part of obtaining her consent to an
abortion’ implicates a physician’s First Amendment right not to speak, ‘but
only as part of the practice of medicine, subject to reasonable licensing and
regulation by the State.’ ” Rounds, 530 F.3d at 733 (quoting Casey, 505 U.S. at
884); see also Nat’l Inst. of Fam. & Life Advocs. v. Beccera, 138 S. Ct. 2361,
2373 (2018). Where a physician is “merely [] required to give ‘truthful,
nonmisleading information’ relevant to the patient’s decision to have an
abortion,” there is no violation of the physician’s First Amendment right not to
speak and the court need not determine whether the requirement is narrowly
tailored to serve a compelling interest, as required by the strict scrutiny test in
Wooley. Rounds, 530 F.3d at 733 (quoting Casey, 505 U.S. at 882).
Here, the pregnancy help center requirement does not simply require a
licensed physician to give a patient truthful, nonmisleading information
relevant to the abortion decision. The pregnancy help center requirement
implicates the pregnant woman’s right not to speak, and requires her to
disclose deeply personal information about her pregnancy to the pregnancy
help center, along with her name and identifying information. The mandated
counseling session implicates more than speech incidental to informed consent
to abortion. See Nat’l Inst. of Fam. & Life Advocs., 138 S. Ct. at 2373. No case
in the Eighth Circuit or Supreme Court has held a woman’s compelled
14
speech—rather than a licensed medical provider’s—to any standard lower than
strict scrutiny. The court continues to apply strict scrutiny here.
b.
Whether the pregnancy help center requirements
continue to implicate free speech
Under the strict scrutiny standard laid out in Wooley, the court first
determines if the pregnancy help center requirement implicates a woman’s free
speech rights. Wooley, 430 U.S. at 715-16. The court reasoned in the 2011
injunction order that the pregnancy help center requirement compelled a
pregnant woman to speak, implicating her speech rights, because it mandates
her to “have a private interview to discuss her circumstances,” which
“necessarily requires questions and answers.” Docket 39 at 9 (emphasis in the
original). Even if the pregnancy help center requirement did not require a
woman to speak during the interview itself, the court found that “the
requirements on their face compel a patient to not only disclose that she is
pregnant and is seeking an abortion, but also to disclose the name of her
abortion physician . . . .” Id. at 10; see SDCL § 34-23A-59(4). Those compelled
disclosures, the court found, implicate the protections of the Free Speech
Clause. Id. at 10 (citing Hurley v. Irish-Am. Gay, Lesbian, & Bisexual Grp. of
Bos., 515 U.S. 557, 573-74 (1995)).
Amendments to the pregnancy help center requirement since the 2011
injunction order do not ameliorate, but instead compound, the ways in which
the pregnancy help center requirement implicates a pregnant woman’s speech.
The 2012 amendments increased the scope of counseling appointments,
15
adding the ability for counselors to screen whether a woman seeking an
abortion has been subjected to “pressure,” in addition to coercion. 2012 S.D.
Sess. Laws ch. 186 § 7. That amendment broadens the scope of the counseling
session and increases the personal issues that a woman may be asked to
discuss.
The 2016 amendments mandate that pregnancy help center counseling
be conducted in accordance with the Uniform Policy Procedures and Guidelines
promulgated by the South Dakota Association of Registered Pregnancy Help
Centers. 2016 S.D. Sess. Laws ch. 179 § 3. Those guidelines, in turn, require
that before making an appointment, a pregnant woman give the center “her
name, telephone number, name of the physician who referred her, and the
address or location of the physician who referred her.” Docket 246-2 at 25.
The “1217 intake form”—which pregnancy help staff are required to fill
out in its entirety—also must include “sufficient space to record the following
information:”
1. The reason for the phone call and the services sought by the
woman;
2. Full name of the client;
3. A client identification number . . . ;
4. Client’s telephone number and address;
5. Whether the 1217 client needs a translator during the
counseling session, and, if so, which language she speaks;
6. A provision by which she either gives or declines permission to
call her at the telephone number provided;
7. Date of birth;
8. Whether she has tested positive for pregnancy;
9. Marital status;
10. Whether she has already had a sonogram, and if so, where;
11. First day of last menstrual period, number of weeks gestation,
if known, or due date, if known;
16
12. Whether she has been referred to a pregnancy help center by a
physician with whom she met to have an abortion? Is she
seeking consultation because an abortion doctor told her
she must do so; [and]
13. If so, the identity of the abortion provider . . . .
Docket 246-2 at 28-29. Even without contemplating the speech a pregnant
woman would be compelled to divulge during a pregnancy help center
interview, the pre-interview requirements alone demonstrate that the
pregnancy help center requirement compels a pregnant woman to speak.
During the interview itself, it is likely the pregnancy help center counselor
would probe further into deeply personal issues, including how the pregnant
woman’s parents reacted to her pregnancy, what “her boyfriend sa[id]” when
informed about the pregnancy, and what advice friends had given her. Docket
322-1 at 8, 15; Docket 322-2 at 8, 15.
PHC intervenors and state defendants identify no changed law or fact
that would result in the pregnancy help center requirement ceasing to
implicate pregnant women’s free speech rights, and changes to the law
exacerbate its effect on a woman’s speech rights. Thus, the pregnancy help
center requirement continues to implicate pregnant women’s free speech rights
and the court moves to the next prong of the Wooley test.
c.
Whether pregnancy help center requirement is
narrowly tailored to achieve a compelling state
interest
In the order granting preliminary injunction, the court acknowledged the
“compelling state interest in protecting a woman from being forced against her
will to have an abortion” and assumed without deciding that that interest was
17
the true goal behind the pregnancy help center requirement. Docket 39 at 12. 4
The court found, however, that the pregnancy help center requirement is not
narrowly tailored towards achieving that interest. Id. at 12-16. The court
identified “several less restrictive alternatives that are equally capable of
informing the pregnant woman” to prevent her from being coerced to have an
abortion. Id. at 13 (citing Reno v. Am. C. L. Union, 521 U.S. 844, 874 (1997)
(holding that a statute was not narrowly tailored because there were “less
restrictive alternatives [that] would be at least as effective in achieving the
legitimate purpose that the statute was enacted to serve”).
State defendants and PHC intervenors submitted a deluge of evidence to show
how urgent and compelling the state’s interest is in preventing coerced
abortions. See Dockets 206-270; 272; 275-277; 352-365. Most of these filings
are either not related to South Dakota and Planned Parenthood’s operation in
South Dakota and thus are not relevant to practices at abortion providers in
the state, or are about events that occurred before the court’s 2011 injunction
order and thus do not present a change in circumstances. See, e.g., Docket 275
(abortion clinic in St. Paul, Minnesota); Docket 207 (abortion performed in
2005); Docket 209 (abortion performed in 1994); Docket 218 (abortion clinic in
Overland Park, Kansas); Docket 233 (abortion performed in New Jersey in
2001); Dockets 267-2 to 267-50 (excerpts from depositions taken in 2006);
Dockets 211, 212, 213, 214 (Planned Parenthood’s Bryan, Texas; Chapel Hill,
North Carolina; Sherman, Texas; and Tampa, Florida clinics); Docket 216
(abortion that took place over 20 years ago and employment experience at the
Planned Parenthood clinic of St. Louis, Missouri); Docket 215 (training of the
National Abortion Federation that took place in 1996); Docket 302 (Planned
Parenthood clinic in Sioux City, Iowa). One affidavit describes a coerced
abortion in South Dakota in 2012, but Planned Parenthood disputes that its
clinic failed to follow appropriate protocol with that patient. See Dockets 206,
347. Even assuming Planned Parenthood did fail to screen for coercion in that
case, the court’s analysis does not change. The court in 2011 acknowledged
that the state has a compelling interest in preventing coerced abortions and
continues to assume so here.
4
18
For example, SDCL § 34-23A-10.1 continues to require that before an
abortion, disclosure must be made to a woman about resources available to
her. While state defendants assert that the written materials are “no substitute
for, or alternative to, in person, individualized counseling,” the state does not
explain why counseling must be mandatory for all women who choose abortion,
rather than an available option for women who choose to receive counseling.
Docket 271 at 13.
State defendants assert that the pregnancy help center requirement is
narrowly tailored because Planned Parenthood “cannot be trusted” to comply
with mandatory counseling and disclosure laws, and thus the State must
require counseling at a third-party pregnancy help center before a woman may
receive an abortion. Docket 271 at 12. But the State’s own inspecting body, the
South Dakota Department of Health (SDDOH), has never found Planned
Parenthood deficient in its facilities or noncompliant with regulations. 5 Docket
325 ¶¶ 14-15, 17. The State provides no reason that a woman who is
adequately informed of the existence of a pregnancy help center, her access to
printed and website materials about abortion, and a host of other disclosures
required by SDCL § 34-23A-10.1 cannot decide to voluntarily seek counseling
from a pregnancy help center if she chooses. Id. The pregnancy help center
requirement continues to fail to be narrowly tailored towards achieving the
In 2018, the SDDOH initially cited Planned Parenthood following a routine
annual audit. Docket 325 ¶ 17. SDDOH withdrew the citation after discussion
between Planned Parenthood and SDDOH officials regarding relevant law. Id.
5
19
State’s interests. The court finds that Planned Parenthood remains likely to
succeed on the merits of its First Amendment claim.
3.
Success on the Merits: Undue burden
In the order granting preliminary injunction, the court next analyzed
whether the pregnancy health center requirement “operate[s] as a substantial
obstacle to a woman’s choice to undergo an abortion ‘in a large fraction of the
cases in which [it] is relevant,’ ” and is therefore invalid. Docket 39 at 17
(quoting Planned Parenthood, Sioux Falls Clinic v. Miller, 63 F.3d 1452, 1456-58
(8th Cir. 1995) (alteration in original) (quoting Casey, 505 U.S. at 895)). The
undue burden framework, set forth by the plurality in Casey, was reaffirmed
by the Supreme Court in 2016 in Whole Women’s Health. 136 S. Ct. at 2301
“[T]here ‘exists’ an ‘undue burden’ on a woman’s right to decide to have an
abortion, and consequently a provision of law is constitutionally invalid, if the
‘purpose or effect’ of the provision ‘is to place a substantial obstacle’ in the path
of a woman seeking an abortion before the fetus attains viability.” Id. (emphasis
in the original) (citing Casey, 505 U.S. at 878). In 2020, in June Medical
Services, a plurality of the Court again affirmed the undue burden standard.
140 S. Ct. at 2112-13. The court will analyze the pregnancy help center
requirement under the undue burden standard here.
In the 2011 injunction order, the court found that the cases where the
pregnancy help center requirement is relevant are those cases where (1) a
woman has chosen to undergo an abortion, and (2) she would not otherwise
20
consult with a pregnancy help center. Docket 39 at 18-19. State defendants
argue that the court under-counted the cases where the pregnancy help center
requirement is relevant and that it is actually relevant when a woman is (1)
only considering abortion and (2) has not yet received third-party counseling,
whether or not she plans to. Id. The court determined in 2011 that the “plain
language of the Pregnancy Help Center Requirements establish[] that a
pregnant woman must consult with a pregnancy help center only if she
chooses to undergo an abortion.” Id. at 18 n.9. The court also found that a
woman who has chosen to consult with a pregnancy help center on her own
would not be burdened by the requirement. Id. The court cited Casey, which
held that a woman who wished to notify her husband of her intent to have an
abortion was not included in the “relevant” cases when analyzing a statute that
required spousal notification prior to abortion. See Casey, 505 U.S. at 894.
State defendants have failed to show any change in the law that would call into
question the court’s conclusion. Thus, the court continues to view the pool of
“relevant” cases as those where a woman has (1) chosen to undergo an
abortion and (2) would not otherwise seek pregnancy help center counseling.
The court next found that the pregnancy help center requirement poses
“a substantial obstacle to a woman’s choice to undergo an abortion[]” in a large
fraction of the cases where it is relevant. Id. at 19 (quoting Miller, 63 F.3d at
1458). The court found that women were likely to feel “humiliate[d] and
degrade[d]” because of the requirement. Id. The “compulsive nature” of the
requirement suggests that a woman is incapable of making the decision to have
21
an abortion or seek counseling on her own and is “not intelligent enough” to
make such a decision. Id.
The parties point to no reason why the 2011 determinations by the court
are now invalid. The pregnancy help center requirement is still compulsory.
SDCL § 34-23A-56(3) (“[T]he physician shall [p]rovide the pregnant mother with
[contact information] of all pregnancy help centers that are registered . . . .”;
“[T]he pregnant mother must have a consultation at a pregnancy help center . .
. .” (emphasis added)). The compulsive nature of the counseling requirement is
still likely to make a woman feel “humiliate[d] and degrade[d][,]” and cause her
to feel as if the state views her as incapable of making the decision to have an
abortion on her own.
Women seeking an abortion who are compelled to attend pregnancy
health center counseling would still be “forced into a hostile environment,” and
might be reluctant to attend counseling and choose to remain pregnant
instead. Docket 39 at 19. The Uniform Guidelines, incorporated into law in
2012, state as a “Fundamental Consideration” that “probably most pregnant
mothers considering an abortion, would prefer to keep and raise their child[ren]
. . . .” Docket 246-2 at 42. A pregnancy help center counselor enters an
interview with a pregnant woman under the paternalistic assumption that the
woman has not decided to seek an abortion of her own volition, but rather
because she is unable to make a decision on her own and is subject to societal
pressures. Pregnancy help center counselors may believe that a woman would
22
only exercise her right to abortion if she has been “forced or manipulated into
killing [her] own child[] . . . .” Docket 237 ¶ 4.
Even if, as PHC intervenors and state defendants allege, the counseling
session is ideologically neutral and the counselor him or herself expresses zero
signs of disapproval of the pregnant woman’s choice to obtain an abortion, see
Docket 205 at 31-32, the centers’ facilities show a clear ideological opposition
to abortion. One pregnancy help center, intervenor Alpha Center, boasts on its
website a “Memorial Garden for the Unborn” that offers “a place of hope and
recovery for women and families who are suffering the aftermath of abortion.”
Docket 322-4; Memorial Garden for the Unborn, Alpha Center,
https://alphacenterfriends.com/memorial-garden (last visited July 29, 2021).
Alpha Center’s memorial garden claims that women who have had an abortion
must seek “forgiveness and redemption.” Id. This evinces Alpha Center’s
ideological opposition to abortion: the assumption that abortion, coerced or
not, results in an “aftermath” and period of mourning and necessary
“forgiveness and redemption” shows that Alpha Center considers abortion,
coerced or not, immoral. A pregnant woman would be subjected to that
messaging by merely attending a mandatory interview at Alpha Center’s
facility. “[A] woman will likely be unwilling to actually consult with a pregnancy
help center because she will fear being ridiculed, labeled a murderer, and
subjected to anti-abortion ideology . . . .” Docket 39 at 20. Intervenors and
state defendants have not shown any factual change that would alter that
conclusion.
23
Further, a pregnant woman required to attend counseling with a
pregnancy help center might be concerned about the privacy of the sensitive
information she is required to disclose. She might fear repeated contact from
the pregnancy help center even after her counseling appointment, because the
Uniform Guidelines now require that a copy of her photo ID be kept in her file
by the center. Docket 246-2 at 40-41. And as the court stated in the initial
order granting preliminary injunction, she may believe, “rightly or wrongly, that
her decision to have an abortion could become public information.” Docket 39
at 21. Amendments to the help center requirement have made modest
improvements to a woman’s privacy rights, but the privacy protections at a
pregnancy help center still fall far below those at a medical clinic like Planned
Parenthood. Under the Health Insurance Portability and Accountability Act of
1996 (HIPAA), an improper disclosure of confidential patient information by a
medical provider can result in substantial civil monetary penalties even when
the entity “did not know and, by exercising reasonable diligence, would not
have known” about the disclosure. 45 C.F.R. § 160.404(b)(2)(i).
While the Uniform Guidelines require that “the spirit and requirements of
HIPPA [sic] shall be employed by the pregnancy help center,” the act provides
no civil enforcement mechanism for improper disclosures by pregnancy health
centers, whether intentional, reckless, or negligent. Docket 246-2 at 34; SDCL
§ 34-23A-59; see generally Docket 246-2. Alpha Center has chosen to
voluntarily comply with HIPAA in some regards, but voluntary compliance
offers little to assure a pregnant woman that her data is secure. See Docket
24
352-1. And while the 2012 amendments to the act made it a Class 2
Misdemeanor to “knowingly and intentionally release[] any information
obtained during any consultations resulting from [the pregnancy help center
requirement], under circumstances not in accord with the confidentiality
provisions required by [the act][,]” SDCL § 34-23A-59.2, that penalty is limited
to knowing and intentional disclosures and does not protect pregnant women
from negligent or unintentional disclosures. 2012 S.D. Sess. Laws ch. 186 § 9.
The lack of privacy and security protections at pregnancy help centers
places an undue burden on a woman who wishes to have an abortion. A
woman might decide to remain pregnant rather than risk her decision to have
an abortion being shared with someone who is not supportive of that decision.
A pregnant woman might reasonably be concerned that, without laws in place
to encourage strong data security, a pregnancy help center may be prone to
inadvertent disclosures of her sensitive information and vulnerable to data
breaches.
The 2012 amendments marginally improved the quality of counseling
guaranteed at a pregnancy help center, but not enough to change the undue
burden calculation. The amendments added a requirement that pregnancy help
centers must “ha[ve] available either on staff, or pursuant to a collaborative
agreement, a licensed counselor, or licensed psychologist, or licensed certified
social worker, or licensed nurse, or licensed marriage and family therapist, or
physician, to provide the counseling related to the assessment for coercion
. . . .” 2012 S.D. Sess. Laws ch. 186 § 4. That amendment does little to lessen
25
the burden on a woman seeking an abortion who would not otherwise attend
counseling: she must still submit to a counselling session, against her will, at a
non-medical facility that is ideologically opposed to her choice to have an
abortion. Further, the requirement does not, on its face, ensure that a qualified
counselor assists the pregnant woman. A “licensed nurse” who specializes in
emergency room trauma but has no experience in counseling women seeking
abortions, under the statute, would be permitted to conduct the counseling.
The amendments since 2011 placed an additional burden on a woman
required to attend counseling by increasing the amount of time a woman is
likely to be required to spend at a pregnancy help center. As incorporated in
the 2012 amendments, the Uniform Guidelines authorize counseling on a
broader range of topics, expanding the scope from “coercion” to both coercion
and “pressure” from third parties. 2012 S.D. Sess. Laws ch. 186 § 7. While the
legislature amended the definition of “coercion” following the court’s 2011 order
that the term was unconstitutionally vague, it left “pressure” undefined,
meaning “pressure” could cover a large swath of topics that could substantially
lengthen the counseling session. 2012 S.D. Sess. Laws ch. 186 § 1; see Docket
39 at 34-40. The 2018 amendments added a host of disclosures that
counselors must provide pregnant women during the appointment, which are
redundant with the disclosures provided by doctors and are likely to lengthen
the counseling session. See 2018 S.D. Sess. Laws ch. 205. These amendments
increase the burden on a woman who seeks an abortion by requiring her to
attend a lengthier counseling appointment than the court contemplated in
26
2011. Some women might have to take a full or half day off of work or pay for
child care to attend a counseling session, in addition to the time needed to
attend the consultation with Planned Parenthood and the abortion procedure
72 hours later. That increased time, especially for women who live hours from
the nearest Planned Parenthood clinic or pregnancy help center, contributes to
the undue burden posed by the pregnancy help center requirement.
Even a short delay that comes from compliance with the pregnancy help
center requirement might push a woman past the gestational age limit at which
she may receive an abortion. The pregnancy help center requirement does not
include a statutory timeframe by which a pregnancy help center must schedule
a counseling appointment: a pregnancy help center could wait as long as it
wished, stalling for time and hampering a woman’s ability to access a previability abortion. A woman could be prevented from receiving an abortion
altogether because of the time she must wait to attend a counseling session.
State defendants argue that because pregnant women do not have “a
right to be insulated from all others” in deciding to obtain an abortion, the
state may implement the pregnancy help center requirement. Docket 271 at 4
(quoting Casey, 505 U.S. at 877). But Casey permits “regulations which do no
more than create a structural mechanism by which the State . . . may express
profound respect for the life of the unborn . . . if they are not a substantial
obstacle to the woman’s exercise of the right to choose.” Casey, 505 U.S. at
877. This court found that the pregnancy help center requirement is “a
substantial obstacle to a woman’s decision to obtain an abortion,” and more
27
than a mechanism by which the state may express its profound respect for life.
Docket 39 at 21. “A statute which, while furthering [a] valid state interest has
the effect of placing a substantial obstacle in the path of a woman’s choice
cannot be considered a permissible means of serving its legitimate ends.”
Whole Woman’s Health, 136 S. Ct. at 2306 (quoting Casey, 505 U.S. at 877).
Changes in the law have not altered the court’s conclusion in the 2011
injunction order that the pregnancy help center requirement places an undue
burden on a woman seeking abortion in a large fraction of cases where it is
relevant. Planned Parenthood is likely to succeed on the merits of its undue
burden claim.
d.
Threat of irreparable harm
In 2011, the court found that the threat of irreparable harm weighed in
favor of granting the injunction. Docket 39 at 58-59. PHC intervenors’ sole
argument relating to the threat of irreparable harm is that the injunction being
lifted as to the other provisions of the act means that no harm would result
from it being lifted as to this provision. Docket 205 at 34. The court disagrees.
The factors that led to the parties stipulating to dissolve the other provisions of
the 2011 injunction do not apply here.
The state defendants argue that there is no risk of irreparable harm,
because no harm would befall a woman considering an abortion who was
forced into “receiving objective, non-judgmental counseling designed to . . .
inform her decision of whether to preserve her relationship with her unborn
child.” Docket 271 at 13. But as the court noted in 2011, “Constitutional
28
violations, however brief, are unquestionably irreparable.” Docket 39 at 58
(citing Kirkeby v. Furness, 52 F.3d 772, 775 (8th Cir. 1995) (“The loss of First
Amendment freedoms, for even minimal periods of time, unquestionably
constitutes irreparable injury.”)). The threat of irreparable harm weighs in favor
of continuing the preliminary injunction.
e.
Balance of the harms
In the 2011 injunction order, the court found that if the preliminary
injunction was improperly denied, “many women will have been denied their
right to free speech and effectively forced against their will to remain pregnant
until they give birth.” Docket 39 at 59. If the preliminary injunction turned out
to have been improperly granted, “defendants will have been wrongly prevented
from carrying out their official duties.” Id. at 60. The court found, after
balancing the harm, that the balance of the harms weighed in favor of granting
the preliminary injunction. Id. at 60. Because the court has found that Planned
Parenthood remains likely to succeed on the merits of its First Amendment
claim, the balance of the harms has not changed.
f.
Public Interest
The court remains convinced that the pregnancy help center requirement
is likely unconstitutional. There remains a public interest in protecting
women’s constitutional rights to access abortion and to free speech. This factor
continues to weigh in favor of maintaining the preliminary injunction.
29
CONCLUSION
No legal or factual change since the court’s preliminary injunction in
2011 warrants dissolution of the preliminary injunction of the pregnancy help
center requirement. It continues to likely infringe on women’s right to free
speech secured in the First Amendment, and it presents an undue burden on a
woman’s right to access abortion. The remaining Dataphase factors continue to
weigh in favor of injunction.
Thus, it is
ORDERED that the motion to dissolve what remains of the preliminary
injunction is denied. The injunction as laid out in the court’s order at Docket
129 remains in effect. It is further
ORDERED that the motion to expedite (Docket 300) is denied as moot.
DATED August 20, 2021.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
30
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