Planned Parenthood Minnesota, North Dakota, South Dakota et al v. Daugaard et al

Filing 39

ORDER granting 10 Motion for Preliminary Injunction. Signed by Chief Judge Karen E. Schreier on 6/30/2011. (KC)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
PLANNED PARENTHOOD
MINNESOTA, NORTH DAKOTA,
SOUTH DAKOTA, and CAROL E.
BALL, M.D.,
Plaintiffs,
vs.

DENNIS DAUGAARD, Governor,
MARTY JACKLEY, Attorney
General,
DONEEN HOLLINGSWORTH,
Secretary of Health, Department
of Health, and
ROBERT FERRELL, President,
Board of Medical and Osteopathic
Examiners, in their official
capacities,
Defendants.

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CIV. 11-4071-KES

MEMORANDUM OPINION
AND ORDER

Plaintiffs, Planned Parenthood Minnesota, North Dakota, South Dakota
and Dr. Carol Ball, move for a preliminary injunction or temporary restraining
order that would enjoin defendants, Governor Dennis Daugaard, Attorney
General Marty Jackley, Secretary Doneen Hollingsworth, and Board President
Robert Ferrell, in their official capacities, from enforcing South Dakota House
Bill 1217 (hereinafter “the Act”), which takes effect on July 1, 2011.

BACKGROUND
In 2005, the South Dakota Legislature amended SDCL 34-23A-10.1 to
include various requirements to ensure a pregnant woman’s voluntary and
informed consent before she underwent an abortion. Some of those
amendments were challenged by plaintiffs on the grounds that they violated
the First and Fourteenth Amendments of the United States Constitution. See
generally Planned Parenthood Minn., N.D., S.D. v. Rounds, 530 F.3d 724 (8th
Cir. 2008) (en banc). That case is currently before the Eighth Circuit Court of
Appeals.
In 2011, the South Dakota Legislature passed the Act at issue in this
case. Plaintiffs challenge the constitutionality of the Act on the grounds that it
violates the First Amendment’s Free Speech Clause and the Fourteenth
Amendment’s Due Process Clause and Equal Protection Clause.1 A hearing on
plaintiffs’ motion for preliminary injunction was held on June 27, 2011.
There are essentially four parts to the Act: (1) The Pregnancy Help Center
Requirements; (2) The 72-Hour Requirement; (3) the Risk Factors Requirement;
and (4) the Coercion Provisions. Generally, the Pregnancy Help Center
Requirements require a pregnant woman to consult with a registered
“pregnancy help center” before she is able to undergo an abortion. The 72-Hour

1

In their brief in support of the motion for preliminary injunction,
plaintiffs do not argue that certain provisions violate the Equal Protection
Clause.
2

Requirement establishes at least a three-day waiting period between the
pregnant woman’s initial consultation with her physician and the abortion. The
Coercion Provisions impose a duty on the physician to certify that the pregnant
woman has not been “coerced” as defined in the Act. Finally, the Risk Factors
Requirement establishes what information the physician must tell a pregnant
woman with regard to the “complications associated with abortion.”
Defendants acknowledge that no court has upheld a requirement that is
similar to the Risk Factors Requirement. Defendants also acknowledge that no
other state currently has requirements that are comparable to the Pregnancy
Help Center Requirements, the 72-Hour Requirement, or the Coercion
Provisions.
DISCUSSION
I.

Preliminary Injunction Standard
When ruling on a motion for a temporary restraining order or preliminary

injunction the court must consider: (1) the threat of irreparable harm to the
moving party; (2) the balance of this harm with any injury a preliminary
injunction would inflict on other parties; (3) the likelihood of success on the
merits; and (4) the public interest. Dataphase Sys., Inc. v. C L Sys., Inc., 640
F.2d 109, 113 (8th Cir. 1981) (en banc). See also S.B. McLaughlin & Co. v.
Tudor Oaks Condominium Project, 877 F.2d 707, 708 (8th Cir. 1989) (noting
that the trial court applied the same standard for a temporary restraining order

3

and the preliminary injunction). “Where a preliminary injunction is sought to
enjoin the implementation of a duly enacted state statute, [] district courts
[must] make a threshold finding that a party is likely to prevail on the merits.”2
Rounds, 530 F.3d at 732-33.
II.

Likelihood of Success on the Merits
Plaintiffs challenge the constitutionality of the Act as a whole3 and

several specific provisions in the Act. The court will first analyze the threshold
issue of whether plaintiffs are likely to succeed on the merits with regard to
each challenged provision.
A.

The Pregnancy Help Center Requirements

Section 5 of the Act sets forth the requirements for maintaining a registry
of pregnancy help centers and the requirements that a pregnancy help center
must satisfy in order to be on the registry. Section 7 of the Act defines
“pregnancy help center” as follows:
any entity . . . that has as one of its principal missions to provide
education, counseling, and other assistance to help a pregnant
mother maintain her relationship with her unborn child and care
for her unborn child, which entity has a medical director who is

2

The “likely to prevail on the merits” standard is a “more rigorous
standard for demonstrating a likelihood of success on the merits” than the “fair
chance” standard that would otherwise apply. Id. at 733.
3

Because the court finds that plaintiffs are likely to succeed on the
merits of the narrower issue of the constitutionality of specific provisions of the
Act, it will not address at this time the broader issue of the Act’s
constitutionality as a whole.
4

licensed to practice medicine in the state of South Dakota, or that
it has a collaborative agreement with a physician licensed in South
Dakota to practice medicine to whom women can be referred,
which entity does not perform abortions and is not affiliated with
any physician or entity that performs abortions, and does not now
refer pregnant mothers for abortions, and has not referred any
pregnant mother for abortions for the three-year period
immediately preceding July 1, 2011[.]
Subsection 3 of section 3 of the Act reads as follows with regard to the
requirements that pertain to pregnancy help centers:
During the initial consultation between the physician and the
pregnant mother, prior to scheduling a surgical or medical
abortion, the physician shall . . . [p]rovide the pregnant mother
with the names, addresses, and telephone numbers of all
pregnancy help centers that are registered with the South Dakota
Department of Health pursuant to this Act, and provide her 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[.]

5

Section 6 of the Act then sets forth what the pregnancy help center is
required and allowed to do during the required consultation. Specifically,
section 6 states that a pregnancy help center:
shall be permitted to interview the pregnant mother to determine
whether the pregnant mother has been subject to any coercion to
have an abortion, and shall be permitted to inform the pregnant
mother in writing or orally, or both, what counseling, education,
and assistance that is available to the pregnant mother to help her
maintain her relationship with her unborn child and help her care
for the child both through the pregnancy help center or any other
organization, faith-based program, or governmental program. . . .
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 this Act, 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.
Section 4 of the Act then states that “no physician may take a consent
for an abortion nor may the physician perform an abortion, unless the
physician . . . first obtains from the pregnant mother, a written, signed
statement setting forth all information required by subsection 3(b) of
section 3[,]” which is set forth above.
Plaintiffs challenge these sections, hereinafter referred to as the
Pregnancy Help Center Requirements, on six grounds: (1) they violate the
patients’ rights to obtain an abortion; (2) they violate the patients’ right to free
6

speech; (3) they violate the patients’ informational privacy rights; (4) they
violate the patients’ and plaintiffs’ rights to equal protection of the laws;
(5) they violate the Establishment Clause; and (6) they violate plaintiffs’ right to
free speech.4
1.

Compelled Speech (Patient) Analysis

“[T]he right of freedom of thought protected by the First Amendment
against state action includes both the right to speak freely and the right to
refrain from speaking at all.” Wooley v. Maynard, 430 U.S. 705, 714 (1977). In
analyzing whether “state action violates the right not to speak, a court first
determines whether the action implicates First Amendment protections.”
Rounds, 530 F.3d at 733 (citation omitted). “If it does, the court must
determine whether the action is narrowly tailored to serve a compelling state
interest.” Id.
In Riley v. National Federation of the Blind of North Carolina, Inc., 487 U.S.
781 (1988), the Supreme Court emphasized that the Free Speech Clause
applies in instances of “compelled statements of ‘fact[.]’ ” Id. at 797-98 (“These
cases cannot be distinguished simply because they involved compelled
statements of opinion while here we deal with compelled statements of ‘fact’:
either form of compulsion burdens protected speech.”). See also Axson-Flynn v.

4

At this stage of the proceedings, the court only addresses the undue
burden and the patient free speech claim for purposes of determining whether
plaintiffs are likely to succeed on the merits.
7

Johnson, 356 F.3d 1277, 1284 n.4 (10th Cir. 2004) (“The constitutional harm
—and what the First Amendment prohibits—is being forced to speak rather
than remain silent. . . . This harm occurs regardless of whether the speech is
ideological.” (citations omitted)). The First Amendment’s protection against
compelled speech with regard to factual statements was reaffirmed in McIntyre
v. Ohio Elections Commission, 514 U.S. 334 (1995), where the Court explained:
“Despite . . . the public’s interest in identifying the creator of a work of art, an
author generally is free to decide whether or not to disclose his or her true
identity. . . . Accordingly, an author’s decision to remain anonymous . . . is an
aspect of the freedom of speech protected by the First Amendment.” Id. at 34142. Thus, in determining whether the Pregnancy Help Center Requirements
implicate First Amendment protections, the court is guided by the basic
principle that the First Amendment protects “not only [] expressions of value,
opinion, or endorsement, but . . . statements of fact the speaker would rather
avoid[.]” Hurley v. Irish-Am. Gay, Lesbian & Bisexual Group of Boston, 515 U.S.
557, 573-74 (1995) (citing McIntyre, 514 U.S. at 341-42; Riley, 487 U.S. at 79798).
The Eighth Circuit Court of Appeals has stated that “[a] First
Amendment protection against compelled speech, however, has been found
only in the context of governmental compulsion to disseminate a particular
political or ideological message.” United States v. Sindel, 53 F.3d 874, 878 (8th

8

Cir. 1995) (citing cases). The holding in Sindel, however, is a narrow one:
“There is no right to refrain from speaking when ‘essential operations of
government may require it for the preservation of an orderly society, —as in the
case of compulsion to give evidence in court.’ ” Id. at 878 (citation omitted).
Here, there are no “essential operations of government” that “require” the
information “for preservation of an orderly society.” See id. Indeed, the patients’
compelled statements are given to a private entity and not the government. To
the extent that Sindel might be construed beyond this narrow holding, the
Supreme Court’s decision in Hurley would seemingly abrogate any broader
holding because Hurley was decided after Sindel.
Defendants argue that the patients’ free speech rights are not implicated
because a pregnant woman is only required to “speak” inasmuch as she is
required to disclose that she is pregnant and that she has chosen to undergo
an abortion. First, the plain language of the Pregnancy Help Center
Requirements contradict defendants’ construction. Subsection 3(a) of section 3
states that the “pregnant mother must . . . have a private interview to discuss
her circumstances that may subject her decision to coercion.” An interview
necessarily requires questions and answers. And defendants offer no
explanation on how an interview “to discuss her circumstances” could be done
without the pregnant woman actually disclosing “her circumstances.”

9

Second, and in the alternative, if the pregnant woman does not have to
actually discuss her circumstances during an interview and she only has to
disclose that she is pregnant and has chosen to undergo an abortion, the
Pregnancy Help Center Requirements still implicate the patient’s free speech
rights. At the very least, 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 so the pregnancy help center
knows to whom to send the written statement or summary of assessment. See
Section 6 of the Act (authorizing a pregnancy help center to forward
“documents to the abortion physician”). This compelled disclosure necessarily
reveals private factual information, such as she is pregnant, she is choosing to
undergo an abortion, she has spoken with an abortion physician, and the
name of her abortion physician. And she is being compelled to disclose this
information to someone who is opposed5 to her decision to undergo an
abortion. Even these “limited” compelled disclosures implicate the protection
afforded by the First Amendment’s Free Speech Clause. See Hurley, 515 U.S. at
573-74 (citing McIntyre, 514 U.S. at 341-42; Riley, 487 U.S. at 797-98).

5

Under section 5 of the Act, a pregnancy help center must certify that
“one of its principal missions is to educate, counsel, and otherwise assist
women to help them maintain their relationship with their unborn children,”
and it cannot have “referred any pregnant women for an abortion at any time
in the three years immediately preceding July 1, 2011.”
10

Defendants rely on Rumsfeld v. Forum for Academic & Institutional Rights,
Inc., 547 U.S. 47 (2006), to support their argument that the First Amendment
does not apply with regard to the compelled speech required by the Pregnancy
Help Center Requirements. See id. at 62 (“This sort of recruiting assistance,
however, is a far cry from the compelled speech in Barnette and Wooley.”). The
discussion in Rumsfeld about the lack of First Amendment protection must be
understood in the context of what was at issue: “compelled statements of fact”
such as “The U.S. Army recruiter will meet interested students in Room 123 at
11 a.m.” Id. at 62. While the claim in Rumsfeld “trivialize[d] the freedom
protected in Barnette and Wooley,” the same cannot be said with regard to the
compelled statements of fact in this case. That is, there is a clear difference
between “The U.S. Army recruiter will meet interested students in Room 123 at
11 a.m.” and “I am pregnant and have chosen to have an abortion. The name of
my abortion physician is Dr. X.” The Pregnancy Help Center Requirements are
therefore an intentional and purposeful regulation of speech that compels the
patient to disclose to the pregnancy help center the name of her abortion
physician, her pregnancy, and her decision to obtain an abortion. The plain
language therefore makes it clear that the Pregnancy Help Center
Requirements are not merely an incidental regulation of speech.
The court finds that plaintiffs have met their burden of demonstrating
that the Pregnancy Help Center Requirements “implicate[] First Amendment

11

protections.” Rounds, 530 F.3d at 733. The burden is therefore on defendants
to demonstrate that “the action is narrowly tailored to serve a compelling state
interest.” Id.
There is a compelling state interest in protecting a woman from being
forced against her will to have an abortion and in informing a woman of
truthful, relevant, and non-misleading information about abortion, alternatives
to abortion, and pregnancy assistance. While plaintiffs dispute that these
identified goals are the true goals behind the Pregnancy Help Center
Requirements, there is no dispute that these goals constitute a compelling
state interest. The court assumes, without deciding, that these are the real
goals sought to be achieved by the Pregnancy Help Center Requirements and
that they constitute a compelling state interest.
Even if the Pregnancy Help Center Requirements are directed at a
compelling state interest, however, they must be narrowly tailored toward
achieving those interests. See Rounds, 530 F.3d at 733. Physicians have been,
and continue to be, fully capable of ensuring that the patient has not chosen to
undergo an abortion against her will. See SDCL 34-23A-10.1 (“No abortion may
be performed unless the physician first obtains a voluntary and informed
written consent of the pregnant woman upon whom the physician intends to
perform the abortion[.]”). Indeed, section 2 of the Act acknowledges the

12

existence of the physician’s common law duty to determine that “the patient’s
consent is voluntary and uncoerced and informed[.]”
Moreover, when considering the goal of protecting the patient from
coercion and defendants’ portrayal of what the Pregnancy Help Center
Requirements actually require, it becomes clear that the requirements are not
tailored towards the proclaimed compelling state interest. As discussed earlier,
defendants argue that the Pregnancy Help Center Requirements do not require
the pregnant woman to say anything to the pregnancy help center employee
other than that she is pregnant and has chosen to undergo an abortion. If this
is all that is required, then the requirements do little, if anything, in terms of
achieving the goal of protecting a woman from being coerced into obtaining an
abortion.
With regard to the goal of informing the woman about abortions,
alternatives to abortion, and pregnancy assistance, there are several less
restrictive alternatives that are equally capable of informing the pregnant
woman about such matters. For example, the physician or the physician’s
agent is already required by SDCL 34-23A-10.1 to provide the following
information to the patient at least 24 hours in advance of the abortion: the
name and address of a pregnancy help center near the abortion facility; that
written materials produced by the state of South Dakota are available free of
charge; and that a multi-media website developed by the state South Dakota

13

exists. Cf. Reno v. American Civil Liberties 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”). If the woman wishes
to consult with a pregnancy help center, read pamphlets, or study the website,
she is free to do so. Because the Pregnancy Help Center Requirements only
apply to women who have chosen to undergo an abortion, they do nothing to
inform pregnant women who may not be seeking an abortion but are seeking
information about alternatives to abortion and information about assistance for
raising children.
Defendants argue that using printed materials or the patient’s physician
to provide information to pregnant women who have chosen to undergo an
abortion have not always been successful. Thus, according to defendants, the
legislature is allowed to experiment with different message delivery
mechanisms in an attempt to ensure that the woman is fully informed. The
court rejects defendants’ underlying assumption that legislatures are allowed
to use more intrusive means that regulate speech because the alternatives are
not 100 percent successful in achieving a compelling state interest. See Reno,
521 U.S. at 875 (reaffirming the holding in Sable Communications of California,
Inc. v. F.C.C., 492 U.S. 115 (1989), that “rejected the argument that we should
defer to the congressional judgment that nothing less than a total ban would

14

be effective in preventing enterprising youngsters from gaining access to
indecent communications”).
Moreover, the burden is on defendants to demonstrate that the
requirements are narrowly tailored, and there is nothing in the record that
supports defendants’ underlying assumption that truthful, relevant, and nonmisleading information given through a pregnancy help center will cause a
pregnant woman to be better informed than the current existing methods from
which a woman can choose on a voluntary basis. In fact, forcing a woman to
listen to someone who is opposed to her decision to have an abortion is likely to
cause the woman to reject the information outright.
For these reasons, the court finds that defendants have failed to
demonstrate that the means chosen to achieve the identified interests are
narrowly tailored toward achieving the purported compelling state interests. In
accordance with recent Supreme Court decisions involving facial free speech
challenges, the court concludes that plaintiffs have demonstrated that “a
substantial number of its applications are unconstitutional, judged in relation
to the statute’s plainly legitimate sweep.” United States v. Stevens, 130 S. Ct.
1577, 1587 (2010) (internal quotations and citation omitted). See also Brown v.
Entm’t Merchs. Ass’n,

S. Ct.

, 2011 WL 2518809, at *4 (June 27, 2011)

(recognizing that the holding in Stevens “controls this case”). Cf. Gonzales v.
Carhart, 550 U.S. 124, 167 (2007) (“The latitude given facial challenges in the

15

First Amendment context is inapplicable here.”). Therefore, plaintiffs have met
their burden of demonstrating that they are likely to succeed on the merits of
their claim that the Pregnancy Help Center Requirements violate the First
Amendment’s Free Speech Clause.
2.

Undue Burden Analysis

Plaintiffs argue in the alternative that the Pregnancy Help Center
Requirements constitute a substantial obstacle that will deter many women
from exercising their constitutional right to obtain an abortion.6 Defendants
argue that plaintiffs have not demonstrated, and cannot demonstrate, that the
Pregnancy Help Center Requirements will interfere with the decision to obtain
an abortion for a “large fraction” of the affected women.7

6

Specifically, plaintiffs argue that the Pregnancy Help Center
Requirements create an undue burden for four reasons: (1) the Act does not
adequately protect the patient’s confidentiality; (2) the pregnancy help centers
are not required to act in an expeditious manner; (3) the pregnancy help
centers are allowed to give untruthful and misleading information; and (4) the
Pregnancy Help Center Requirements unduly deter physicians from offering
abortion services.
7

Defendants also argue that the Act has a legitimate purpose.
Defendants acknowledge, though, that even if a statute seeks to further a
legitimate governmental purpose, it may still constitute an undue burden.
Docket 32 at 26. See also Casey, 505 U.S. at 877 (“And a statute which, while
furthering the interest in potential life or some other 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.”). The
court assumes, without deciding, that the Pregnancy Help Center
Requirements have a legitimate purpose.
16

When a statute is challenged on the ground that it violates a woman’s
constitutional right to obtain an abortion, the burden placed on the challenger
“has been a subject of some question.” Gonzales v. Carhart, 550 U.S. 124, 167
(2007) (citations omitted). Nonetheless, the Eighth Circuit Court of Appeals has
determined that the standard set out in Planned Parenthood of Southeastern
Pennsylvania v. Casey, 505 U.S. 833 (1992), applies. See Planned Parenthood,
Sioux Falls Clinic v. Miller, 63 F.3d 1452, 1456-58 (8th Cir. 1995) (“We will
therefore apply the Casey standard to determine if South Dakota's Act to
Regulate the Performance of Abortion is constitutional on its face.”).8
Thus, the court will apply the following standard as set out in Casey: “If
the law will operate 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, . . . [i]t is an
undue burden, and therefore invalid.’ ” Id. at 1458 (alteration in original)
(quoting Casey, 505 U.S. at 895). In determining whether plaintiffs have met
this burden, “ ‘[t]he proper focus of constitutional inquiry is the group for
whom the law is a restriction, not the group for whom the law is irrelevant.’ ”
Id. (alteration in original) (citation omitted).
As the applicable test makes clear, whether the Pregnancy Help Center
Requirements constitute an “undue burden” depends on whether, in a large

8

As recently noted by the Eighth Circuit Court of Appeals, “the
standards enunciated by the Casey plurality opinion [are] controlling precedent
in abortion cases.” Rounds, 530 F.3d at 733 n.8 (citations omitted).
17

fraction of the cases in which they are relevant, the Pregnancy Help Center
Requirements create a “substantial obstacle to a woman’s choice to undergo an
abortion.” See id. There are three issues that must be resolved in order to
determine whether plaintiffs have met their burden: (1) in what cases are the
requirements “relevant;” (2) do the requirements create a “substantial obstacle
to the woman’s choice to undergo an abortion” in those cases in which the
requirements are “relevant;” and (3) is the substantial obstacle present in a
“large fraction” of the “relevant” cases.
As to the issue of what cases are “relevant,” the Pregnancy Help Center
Requirements would not apply if the woman has not chosen to undergo an
abortion or is uncertain about whether or not she wishes to obtain an
abortion.9 That is, the requirements are only relevant in those instances where
a woman has chosen to undergo an abortion in South Dakota. Similarly, the
Pregnancy Help Center Requirements are only relevant in those instances
where a woman has not chosen to consult with a pregnancy help center on her
own. Thus, the relevant cases are those that involve a woman who has chosen

9

The plain language of the Pregnancy Help Center Requirements
establishes that a pregnant woman must consult with a pregnancy help center
only if she chooses to undergo an abortion. There is nothing in the Act that
requires a pregnant woman who does not want an abortion to consult with a
pregnancy help center. There is also nothing in the Act that requires a
pregnant woman who is only considering whether or not to undergo an
abortion to consult with a pregnancy help center. The Pregnancy Help Center
Requirements are targeted only at those pregnant women who have chosen to
undergo an abortion.
18

to undergo an abortion and would otherwise not consult with a pregnancy help
center. Cf. Casey, 505 U.S. at 894 (limiting the relevant cases to “married
women seeking abortions who do not wish to notify their husbands of their
intentions and who do not qualify for one of the statutory exceptions to the
notice requirement”).
With the relevant cases in mind, the next issue is whether the Pregnancy
Help Center Requirements create “a substantial obstacle to a woman’s choice
to undergo an abortion.” See Miller, 63 F.3d at 1458. The plain language of
sections 3, 4, 5, and 6 makes it clear that a woman can obtain an abortion if,
and only if, she first consults a pregnancy help center when she otherwise
would not. Forcing a woman to divulge to a stranger at a pregnancy help center
the fact that she has chosen to undergo an abortion humiliates and degrades
her as a human being. The woman will feel degraded by the compulsive nature
of the Pregnancy Help Center Requirements, which suggest that she has made
the “wrong” decision, has not really “thought” about her decision to undergo an
abortion, or is “not intelligent enough” to make the decision with the advice of a
physician.
Furthermore, these women are forced into a hostile environment. Aside
from its compulsive nature, the hostility of the consultation is evidenced by the
fact that section 5 of the Act establishes that the only entities that can be listed
on the state registry of pregnancy help centers are those that routinely

19

“consult[] with women for the purpose of helping them keep their relationship
with their unborn children” and that “one of [their] principal missions is to
educate, counsel, and otherwise assist women to help them maintain their
relationship with their unborn children.” A pregnancy help center cannot have
even “referred any pregnant women for an abortion at any time in the three
years immediately preceding July 1, 2011.” Requiring these women to “have a
consultation,” and a “private interview” with a “pregnancy help center” destroys
“[t]he right to avoid unwelcome speech” that is “protected in confrontational
settings.” Cf. Hill v. Colorado, 530 U.S. 703, 717 (2000). And it forces an
unnecessary confrontation on one of the most volatile subjects in America. See
Stenberg v. Carhart, 530 U.S. at 920 (acknowledging that “[m]illions of
Americans believe that . . . abortion is akin to causing the death of an innocent
child”); Casey, 505 U.S. at 852 (recognizing that “some deem [abortions as]
nothing short of an act of violence against innocent human life”).
There are clear ideological differences between a woman who has chosen
to undergo an abortion and a “pregnancy help center.” When considering these
differences, a woman will likely be unwilling to actually consult with a
pregnancy help center because she will fear being ridiculed, labeled a
murderer, subjected to anti-abortion ideology, and repeatedly contacted by the
pregnancy help center. Moreover, a woman may likely believe, rightly or
wrongly, that her decision to have an abortion could become public

20

information. And it will not matter to her that in the future she may be able to
obtain legal relief from the pregnancy help center worker who disclosed the
information. By then it will be too late. Thus, rather than risk having such
information being made public or to avoid “consulting” with someone who is
not supportive of her decision to have an abortion, she will be forced to remain
pregnant.
The Pregnancy Help Center Requirements establish that those women
who choose to undergo an abortion must consult with the pregnancy help
center and divulge personal information against their will in order to effectuate
their decision to undergo an abortion. The court finds these requirements do
“not merely make abortions a little more difficult or expensive to obtain.”
Casey, 505 U.S. at 893. Rather, the requirements constitute a substantial
obstacle to a woman’s decision to obtain an abortion because they force the
woman against her will to disclose her decision to undergo an abortion to a
pregnancy help center employee before she can undergo an abortion. Cf.
Casey, 505 U.S. at 887, 892 (finding the spousal notification requirement to be
unconstitutional partly because there are “many cases in which married
women do not notify their husbands [because] the pregnancy is the result of an
extramarital affair” even though the spousal notification requirement allowed
the woman to “certify[] that her husband is not the man who impregnated
her”).

21

Defendants argue that the Pregnancy Help Center Requirements are not
a substantial obstacle because no woman “who wants to keep her pregnancy a
secret, will forgo her option to have an abortion because she does not want to
reveal her pregnancy to a third party [because] she will already have disclosed
her pregnancy to staff members at an abortion clinic.” Docket 32 at 68. This
argument is without merit. There is an inherent difference between compelling
a woman to disclose her decision to undergo an abortion to a “pregnancy help
center” and a woman freely disclosing this decision to someone she chose to
provide her with the medical services that she seeks. See Hill, 530 U.S. at 717
(recognizing the significance of “confrontational settings” in the context of free
speech issues). The former situation leads to the fear described above. See
Casey, 505 U.S. at 893, 894 (“We must not blind ourselves to . . . the
significant number of women who fear for their safety[.]”); Miller, 63 F.3d at
1463 (acknowledging that “non-abusive parents who differ from their
daughters on religious or moral grounds over abortion may be prepared to
prevent their daughters from obtaining abortions even when those abortions
are in the daughters’ best interests”). The latter situation does not. For the
reasons expressed above, the court finds that the Pregnancy Help Center
Requirements do create a substantial obstacle in the relevant cases.
The next issue is whether this substantial obstacle is present in a “large
fraction” of the “relevant” cases. Defendants argue that a “large fraction” means

22

“at least half of the group in question.” See Docket 32 at 32. If the plurality
opinion in Casey intended “large fraction” to mean a majority, it would have
said majority. Indeed, Casey’s use of the phrase “large fraction” at most
indicates that the number of women affected by the requirements must be
more than a “small” fraction of the group in question. Admittedly, this
construction of “large fraction” does little in terms of establishing the phrase’s
scope. See Casey, 505 U.S. at 973 n.2 (“The joint opinion concentrates on the
situations involving battered women and unreported spousal assault, and
assumes, without any support in the record, that these instances constitute a
‘large fraction’ of those cases in which women prefer not to notify their
husbands (and do not qualify for an exception).” (Rehnquist, White, Scalia,
Thomas, JJ. dissenting). Nonetheless, some guidance as to the rigidity of the
phrase “large fraction” is available.
In Casey, the Supreme Court addressed the constitutionality of, among
other provisions, a “spousal notification requirement.” 505 U.S. at 887. The
relevant cases in Casey with regard to that requirement were “married women
seeking abortions who do not wish to notify their husbands of their intentions
and who do not qualify for one of the statutory exceptions to the notice
requirement.” Id. at 895. The Court held that the requirement was
unconstitutional under the “large fraction” test after it found that the
requirement was “likely to prevent a significant number of [those] women from

23

obtaining an abortion.” 505 U.S. at 893, 894 (emphasis added). This language
and reasoning indicates that the term “large fraction” should not be construed
as some numerical threshold that must be established.10
While certainly not establishing the bottom end of what constitutes a
“large fraction,” it appears that the Eighth Circuit Court of Appeals’ decision in
Miller comes the closest.11 In Miller, the Eighth Circuit Court of Appeals
addressed the validity of South Dakota’s bypass procedure for minors seeking
an abortion without parental consent. 63 F.3d at 1458. In the opinion, two
different sets of relevant cases were analyzed. The first set involved those
pregnant minors who did not have access to a “bypass procedure” because they
did “not fall under [the] abuse exception,” even though they “could show that
an abortion is in their best interests.” See id. at 1462. The second set involved
pregnant minors who had access to a “bypass procedure” because they were
abused, but were nonetheless unable “to use the abuse exception” due to the

10

The other case in which the Supreme Court has found a statute to be
unconstitutional is Stenberg v. Carhart, 530 U.S. 914 (2000). That case is of
little help with regard to this issue because the defendant did “not deny that
the statute impose[d] an ‘undue burden’ if it applies to the more commonly
used . . . procedure[.]” Id. at 938. Thus, the central issue was essentially a
statutory interpretation issue.
11

In Carhart v. Stenberg, 192 F.3d 1142 (8th Cir. 1999), the Eighth
Circuit Court of Appeals held that the statute “impose[d] an undue burden on a
woman’s right to choose to have an abortion” because it “prohibit[ed] the most
common procedure for second-trimester abortions[.]” Id. at 1151. Thus, this
decision does little in terms of establishing what is meant by a “large fraction.”
24

minor “blam[ing] themselves for the abuse” or being “very protective of the
abusive parent.” See id. at 1463. The Eighth Circuit Court of Appeals found
that the challengers had “shown that a large fraction of minors seeking
pre-viability abortions would be unduly burdened by South Dakota's
parental-notice statute, despite its abuse exception.” Id.
With regard to the first set of relevant cases, which involved the “best
interest” minors, the court rejected the argument that “the minor could simply
notify her other parent” because “many of them, as a practical matter, have
only one parent to notify.” Id. at 1462 n.10. According to the Eighth Circuit
Court of Appeals, approximately 18 percent warranted use of the descriptive
term “many.” See id. (“Roughly eighteen [percent] of South Dakota’s minors live
in single-parent homes; many of them, as a practical matter, have only one
parent to notify.”). The Eighth Circuit Court of Appeals struck down this
portion of the statute because the challengers had “shown that a large fraction
of [these] minors seeking pre-viability abortions would be unduly burdened by
South Dakota’s parental-notice statute, despite its abuse exception.” Id. at
1463.
With regard to the second set of relevant cases, which involved minors
that were abused, the Eighth Circuit Court of Appeals recognized that “[a]
minor faced with the untenable choice of turning in her parent or forgoing an
abortion will often delay her decision until it is too late; she may even commit

25

suicide rather than choose between two such agonizing choices.” Id.
(emphasizing that “[e]ven if South Dakota's exception were otherwise
acceptable, its failure to provide an alternative procedure for these minors
would doom it”). The number of the abused minors who would choose not to
utilize the “bypass procedure” was not explicitly identified. Nonetheless, it
stands to reason that many of those minors would be hesitant to report their
parents.
Here, in nearly every instance where the Pregnancy Help Center
Requirements are relevant, a woman who chooses to undergo an abortion will
experience a high degree of degradation because she will be forced to disclose
her decision to someone who is fundamentally opposed to it. Women will also
be afraid of being berated, belittled, or confronted about their decision, being
subsequently contacted by the pregnancy help center, and having their
decision to have an abortion become public information. As a result, women
will delay or refrain from consulting with the pregnancy help centers, which
will prevent them from being able to carry out their decision to undergo an
abortion. See Casey, 505 U.S. at 893-95; Miller, 63 F.3d at 1462-63. Thus, the
Pregnancy Help Center Requirements constitute a substantial obstacle for a
large fraction of the relevant cases.
Plaintiffs have therefore demonstrated that they are likely to succeed
with regard to their claim that the Pregnancy Help Center Requirements violate

26

the Fourteenth Amendment’s Due Process Clause because they create an
undue burden on the woman’s choice to obtain a legal abortion. See Casey,
505 U.S. at 877 (“A finding of an undue burden is a shorthand for the
conclusion that a state regulation has the purpose or effect of placing a
substantial obstacle in the path of a woman seeking an abortion of a nonviable
fetus.”).
To summarize, plaintiffs have demonstrated that they are likely to
succeed on their challenges to the Pregnancy Help Center Requirements
because the Requirements compel patients to speak in violation of the First
Amendment’s Free Speech Clause and because they constitute an undue
burden on a woman’s choice to undergo an abortion in violation of the
Fourteenth Amendment’s Due Process Clause.
B.

The 72-Hour Requirement—Undue Burden Analysis

The beginning portion of section 3 of the Act establishes that before
obtaining an abortion, a patient must wait at least 72 hours between her initial
consultation and an abortion. Specifically, section 3 reads in relevant part as
follows:
No surgical or medical abortion may be scheduled except by a
licensed physician and only after the physician physically and
personally meets with the pregnant mother, consults with her, and
performs an assessment of her medical and personal
circumstances. Only after the physician completes the consultation
and assessment complying with the provisions of this Act, may the
physician schedule a surgical or medical abortion, but in no
instance may the physician schedule such surgical or medical
27

abortion to take place in less than seventy-two hours from the
completion of such consultation and assessment except in a
medical emergency[.]
Section 3 also limits when and how a patient can consent to the medical
procedure. This portion of section 3 states:
No physician may take a signed consent from the pregnant mother
unless the pregnant mother is in the physical presence of the
physician and except on the day the abortion is scheduled, and
only after complying with the provisions of this Act as it pertains to
the initial consultation, and only after complying with the
provisions of subdivisions 34-23A-l0.1(1) and (2).12
Finally, section 4 establishes that “no physician may . . . perform an
abortion[] unless the physician has fully complied with the provisions of this
Act[.]”
Plaintiffs challenge these portions of section 3 and 4, hereafter identified
as the 72-Hour Requirement, on two grounds: (1) they create an undue burden
on women’s rights to obtain an abortion; and (2) they violate the patients’ and
plaintiffs’ rights to equal protection of the laws. Because plaintiffs do not brief
their equal protection claim, the court will only conduct an undue burden
analysis.
Similar to the other provisions in the Act, whether the 72-Hour
Requirement constitutes an “undue burden” depends on whether, in a large

12

Portions of SDCL 34-23A-10.1(1) were found by the district court to be
unconstitutional in Planned Parenthood Minn., N.D., S.D., v. Rounds, 650 F.
Supp. 2d 972 (D.S.D. 2009). That case is currently before the Eighth Circuit
Court of Appeals.
28

fraction of the cases where it is relevant, the 72-Hour Requirement creates a
“substantial obstacle to a woman’s choice to undergo an abortion.” See Miller,
63 F.3d at 1458. There are three issues that must be resolved in order to
determine whether plaintiffs have met their burden: (1) in what cases is the 72Hour Requirement “relevant;” (2) does the requirement create a “substantial
obstacle to the woman’s choice to undergo an abortion” in those cases where
the 72-Hour Requirement is “relevant;” and (3) is the substantial obstacle
present in a “large fraction” of the “relevant” cases.
On its face, the 72-Hour Requirement applies to every woman who
chooses to undergo an abortion. According to defendants, the requirement is
therefore relevant to every woman who chooses to undergo an abortion.
Because the 72-Hour Requirement imposes a substantial obstacle on almost
every woman who chooses to undergo an abortion, the court assumes, without
deciding, that defendants’ broad construction of the relevant cases is proper.
But see Casey, 505 U.S. at 894 (“The proper focus of constitutional inquiry is
the group for whom the law is a restriction, not the group for whom the law is
irrelevant.”).
With regard to whether the 72-Hour Requirement constitutes a
substantial obstacle, plaintiffs argue with supporting evidence that women
could be forced to wait up to one month between their initial consultation and
the abortion procedure if the same physician is required to conduct both the

29

initial consultation and the abortion. See Docket 10-6 at 6 (“[D]ue to the
physicians’ schedules, a woman could be delayed up to a month in order to
have two appointments with the same physician.”). This is because there is
only one clinic in South Dakota, which provides abortions one day a week on
average. Docket 10-6 at 4. And the three to four physicians who perform the
abortions take turns flying into Sioux Falls about once a month. Docket 10-6
at 4. Defendants argue that such a delay will not occur because there is no
requirement that the initial consultation be performed by the same physician
who performs the abortion.
Section 4 of the Act states that “no physician may . . . perform an
abortion, unless the physician has fully complied with the provisions of this Act
and first obtains from the pregnant mother, a written, signed statement setting
forth all information required by subsection (3)(b) of section 3 of this Act.”
Defendants’ argument that “the physician” actually means “a physician” is
without merit because when a statute is “not ambiguous,” “[i]t is to be assumed
that [the statute] means what it says and that the legislature has said what it
meant.” Kreager v. Blomstrom Oil Co., 298 N.W.2d 519, 521 (S.D. 1980)
(citation omitted). Such an alteration is therefore beyond the court’s authority.
Even if the physician who performed the abortion was not required to
have conducted the initial consultation, the 72-Hour Requirement still creates
a substantial obstacle considering the circumstances that surround many of

30

the women who choose to undergo an abortion in South Dakota. For example,
56 percent of women who chose to undergo an abortion “during the year
beginning March 1, 2010,” had “incomes that [were] 100% or less than the
federal poverty level.” Docket 10-6 at 4. And 87 percent of the women who
chose to undergo an abortion during that same time period lived “at or below
200 percent of the [Federal Poverty Level].” Docket 10-6 at 4. Furthermore,
approximately 30 percent of the women who chose to undergo an abortion
during this time period traveled more than 150 miles to the abortion clinic, for
a total of 300 miles. Docket 10-6 at 3.
Because the 72-Hour Requirement effectively requires two trips, almost
every woman will be forced to cope with the financial burdens created by the
additional trip. These burdens are great when considering the fact that
approximately 87 percent of the women are at or below 200 percent of the
Federal Poverty Level. For many of these women, it stands to reason that they
will be unable to afford the second trip and will abstain from obtaining an
abortion even though they have chosen to undergo one. And women who live
farther away are even more likely to be unable to afford a second trip. The
inability to pay for the additional trip also becomes worse for the women who
are stay-at-home mothers because they will be required to make additional
arrangements for childcare. Docket 10-6 at 4. And if a pregnant woman has a
job, she will be required to take twice as much time off from work. Docket 10-6

31

at 4. The court finds that these financial circumstances constitute a
substantial obstacle for a large fraction of the relevant cases.
The effective doubling of the financial burden created by the 72-Hour
Requirement is arguably insignificant when compared to the other obstacles
created by the 72-hour delay. For example, even if the delay between the initial
consultation and the abortion is only one week, pregnant women who choose to
undergo an abortion can be denied the ability to undergo a medication
abortion, which may be their chosen method of abortion, because of the delay.
Docket 10-6 at 2-3. A medication abortion is only available until 9 weeks after
the first day of the woman’s last menstrual period, after which time a surgical
abortion is required. Docket 10-6 at 2. For those women who refuse to undergo
a surgical abortion in such situations, the 72-Hour Requirement effectively
denies them of their right to an abortion. As to those women who choose a
surgical abortion near the end of the first trimester, the delay created by the
72-Hour Requirement will prevent them from being able to obtain any abortion
in South Dakota because these abortions are only available through the first
13.6 weeks after the first day of the woman’s last menstrual period. Docket 106 at 2-3. It stands to reason that the number of women who are effectively
denied their right to undergo an abortion increases as the required period of
delay increases.

32

Moreover, it is generally accepted that women are often the victims of
abuse. And abusers often forcibly impregnate their partners to maintain
control or increase their control over their women. Docket 10-7 at 7-8. The
abusers in such relationships closely monitor the women. Docket 10-7 at 9.
For example, the abuser will often keep track of the mileage on the car or
remove the distributor cap on the car to prevent the woman from leaving the
house. Docket 10-7 at 9. Abusers will call the woman numerous times at work
or home to ensure that she is there. Docket 10-7 at 9. An abuser will also
regularly appear at the woman’s place of work unexpectedly “to check up on
her.” Docket 10-7 at 9. For those women who are in such relationships, the 72Hour Requirement creates an incredible obstacle because it requires them to
make separate trips, which for many is effectively impossible to do because two
trips double the chances of being “caught” and punished by the abusive
partner. Docket 10-7 at 9-10.
In summary, all women who choose to undergo an abortion will be forced
to wait between 7 to 30 days before actually being able to obtain an abortion.
That constitutes a substantial obstacle for those women who have chosen to
undergo an abortion near the end of the first trimester because there are no
second trimester abortions available in South Dakota. Moreover, because every
woman will be forced to make two trips, many women will not undergo an
abortion because they will be unable to financially afford a second trip.

33

Furthermore, the 72-Hour Requirement creates a substantial obstacle for those
women who are unable to make a second trip because it places them in greater
risk of being caught by their abuser.
When considering the numerous substantial obstacles created by the 72Hour Requirement, there can only be one conclusion: it creates a substantial
obstacle for a large fraction of the women who choose to undergo an abortion
in South Dakota. Plaintiffs have therefore demonstrated that they are likely to
succeed on their claim that the 72-Hour Requirement constitutes an undue
burden on a woman’s ability to obtain an abortion.
C.

The Coercion Provisions—Unconstitutionally Vague

Subsection 1 of section 3 of the Act reads, in relevant part, as follows:
During the initial consultation between the physician and the
pregnant mother, prior to scheduling a surgical or medical
abortion, the physician shall [d]o an assessment of the pregnant
mother’s circumstances to make a reasonable determination
whether the pregnant mother’s decision to submit to an abortion is
the result of any coercion, subtle or otherwise. In conducting that
assessment, the physician shall obtain from the pregnant mother
the age or approximate age of the father of the unborn child, and
the physician shall determine whether any disparity in the age
between the mother and father is a factor in creating an undue
influence or coercion.
Subsection 4 of section 7 states that “coercion,” for purposes of the Act,
“exists if the pregnant mother has a desire to carry her unborn child and give
birth, but is induced, influenced, or persuaded to submit to an abortion by
another person or persons against her desire.” The Act further states that

34

“[s]uch inducement, influence, or persuasion may be by use of, or threat of,
force, or may be by pressure or intimidation effected through psychological
means, particularly by a person who has a relationship with the pregnant
mother that gives that person influence over the pregnant mother.”
As part of the Pregnancy Help Center Requirements, section 6 of the Act
states:
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 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
this Act, the common law requirements, and accepted medical
standards.
Section 6 further explains that “[a]ny written statement or summary of
assessment prepared by the pregnancy help center . . . as a result of the
procedures created by this Act[] may be forwarded by the pregnancy help
center, in its discretion, to the abortion physician.” Once the statement or
summary is sent to the physician, it must “be maintained as a permanent part
of the pregnant mother’s medical records.”
Section 8 recognizes a civil cause of action with “a civil penalty in the
amount of ten thousand dollars, plus reasonable attorney’s fees and costs,” for
“[a]ny woman who undergoes an abortion, or her survivors, where there has
35

been an intentional, knowing, or negligent failure to comply with the” Coercion
Provisions in the Act. This is in addition to damages for injuries sustained
under any common law or statutory provisions. And subsection 2 of section 9
provides that “[i]f the trier of fact [in a civil action] determines that the abortion
was the result of coercion, and it is determined that if the physician acted
prudently, the physician would have learned of the coercion, there is a
nonrebuttable presumption that the mother would not have consented to the
abortion if the physician had complied with the provisions of this Act[.]” The
Act does not establish a time frame as to when the pregnancy help center’s
written statement or summary will be submitted to the physician. And section
6 of the Act concludes by establishing that “[n]othing in this Act may be
construed to impose any duties or liability upon a pregnancy help center.”
Plaintiffs challenge these sections, hereafter identified as the Coercion
Provisions, on the following three grounds: (1) they violate a woman’s right to
obtain an abortion because they create an undue burden; (2) they are
impermissibly vague; and (3) they violate the patients’ and plaintiffs’ rights to
equal protection of the laws.13

13

Plaintiffs did not discuss in their brief how the Coercion Provisions
violate the Fourteenth Amendment’s Equal Protection Clause. The court
therefore expresses no opinion as to whether plaintiffs are likely to succeed on
the merits with regard to that claim. The court does not reach the undue
burden claim because the Coercion Provisions are unconstitutionally vague.
36

Plaintiffs argue that the term coercion, as defined in the Act, is
unconstitutionally vague. In a challenge against a statute on the basis that it is
unconstitutionally vague, the challenger “must demonstrate that the law is
impermissibly vague in all of its applications, and that the statute could never
be applied in a valid manner.” Planned Parenthood of Minn. v. Minn., 910 F.2d
479, 482 (8th Cir. 1990) (internal quotations and citations omitted). The
standard for determining whether a statute is unconstitutionally vague is
whether it gives people of common intelligence fair notice that certain conduct
is prohibited. Id. at 482. If the forbidden conduct is so poorly defined that a
person of common intelligence must necessarily guess at its meaning and differ
as to its application, the statute is unconstitutionally vague. Id. (citations
omitted). And the statute cannot be so vague as to allow for arbitrary or
discriminatory enforcement. Id. (citations omitted).
For purposes of the Act, coercion exists if the pregnant woman “is
induced, influenced, or persuaded to submit to an abortion by another person
or persons against her desire.” While coercion is explicitly defined in the Act,
the term “desire” is not. The common meaning of desire is “to long or hope for.”
See Merriam-Webster Dictionary (2011). An individual’s longing or hope is an
amorphous standard that is difficult for a physician to ascertain and is not
synonymous with the concept of depriving someone of their free will that is
generally considered when determining whether someone acts under coercion.

37

See State v. Willis, 370 N.W.2d 193, 199 (S.D. 1985) (affirming jury instruction
that explained coercion as “exist[ing] where one is . . . induced to do or perform
some act under circumstances which deprive her of the exercise of her free
will”).
Recognizing that the phrase “against her desire” does not give a
physician fair notice of what is meant by “coercion” as defined in the Act,
defendants argue that “against her desire” actually means “against her will.” As
the Eighth Circuit Court of Appeals recently noted, however, “South Dakota
recognizes the well-settled canon of statutory interpretation that “ ‘[w]here [a
term] is defined by statute, the statutory definition is controlling.’ ” Rounds,
530 F.3d at 735 (alteration in original) (quoting Bruggeman v. S.D. Chem.
Dependency Counselor Certification Bd., 571 N.W.2d 851, 853 (S.D.1997)). The
Eighth Circuit Court of Appeals emphasized that “[w]hen a statute includes an
explicit definition, we must follow that definition, even if it varies from that
term’s ordinary meaning.” Id. (citations omitted). Thus, the court cannot
“redefine” how the legislature defined “coercion.”
Furthermore, defendants’ argument that the Coercion Provisions only
apply when the abortion is conducted against the pregnant woman’s “will,”
instead of “desire,” is generally irrelevant when considering the fact that private
individuals can bring suit against the physician and argue that the legislature
meant what it said. Stenberg v. Carhart, 530 U.S. at 940 (“[O]ur precedent

38

warns against accepting as ‘authoritative’ an Attorney General’s interpretation
of state law when ‘the Attorney General does not bind the state courts or local
law enforcement authorities.’ ” (citation omitted)). See also Simpson v. Tobin,
367 N.W.2d 757, 763 (S.D. 1985) (“While we have in the past recognized that
Attorney General’s opinions should be considered when construing statutes,
such opinions are not binding on the courts.”).14 The court therefore finds that
defendants’ attempt to have the court alter the “explicit definition” of coercion
is fundamentally unreasonable because it goes against the express language
used by the legislature in defining a term in the Act. See Kreager, 298 N.W.2d
at 521 (“It is to be assumed that . . . the legislature has said what it meant.”
(citation omitted)).
Moreover, subsection 1 of section 3 of the Act requires the physician to
determine whether the decision to undergo an abortion “is the result of any
coercion, subtle or otherwise.” Because the Act defines “coercion” as
“exist[ing] if the pregnant mother has a desire to carry her unborn child and
give birth, but is induced, influenced, or persuaded to submit to an abortion by
another person or persons against her desire,” “subtle or otherwise” must
mean something different. See Delano v. Petteys, 520 N.W.2d 606, 609 (S.D.
1994) (“This court will not construe a statute in a way that renders parts to be

14

It is questionable whether the argument made by defendants even
constitutes an official opinion by the Attorney General.
39

duplicative and surplusage.” (citing Farmland Ins. Co. v. Heitmann, 498 N.W.2d
620 (S.D. 1993); Revier v. Sch. Bd. of Sioux Falls, 300 N.W.2d 55, 57 (S.D.
1980))). If it means “subtle” inducement, influence, or persuasion, then a
physician will be forced to guess whether a patient is the victim of coercion
because the pregnant woman herself is likely unaware of the “subtle coercion.”
If “subtle or otherwise” does not mean “subtle inducement, influence, or
persuasion,” then the court, and presumably “a person of common
intelligence,” must “guess” what the phrase actually means. See Planned
Parenthood of Minn. v. Minn., 910 F.2d at 482. This uncertainty will cause
physicians to refuse to offer abortion services out of fear of being subjected to
severe civil sanctions. Cf. Miller, 63 F.3d at 1467 (“The potential civil liability
for even good-faith, reasonable mistakes is more than enough to chill the
willingness of physicians to perform abortions in South Dakota.” (citations
omitted)). Plaintiffs have therefore demonstrated that “the law is impermissibly
vague in all of its applications, and that the statute could never be applied in a
valid manner.” Planned Parenthood of Minn. v. Minn., 910 F.2d at 482.
The court finds that plaintiffs have met their burden of demonstrating
that they are likely to succeed on the merits of their claim that the Coercion
Provisions are unconstitutionally vague.

40

D.

The Risk Factors Requirement

Subsections 4 and 5 of section 3 of the Act require the physician,
“[d]uring the initial consultation between the physician and the pregnant
mother, prior to scheduling a surgical or medical abortion[,]” to:
(4)

Conduct an assessment of the pregnant mother’s health and
circumstances to determine if any of the risk factors
associated with abortion are present in her case, completing
a form which for each factor reports whether the factor is
present or not; [and]

(5)

Discuss with the pregnant mother the results of the
assessment for risk factors, reviewing with her the form and
its reports with regard to each factor listed[.]

Subsection 6 of section 3 of the Act describes what the physician must
do in the event that “any risk factor is determined to be present.”
(6)

In the event that any risk factor is determined to be present,
discuss with the pregnant mother, in such manner and
detail as is appropriate so that the physician can certify that
the physician has made a reasonable determination that the
mother understands the information, all material
information about any complications associated with the risk
factor, and to the extent available all information about the
rate at which those complications occurs both in the general
population and in the population of persons with the risk
factor[.]

And subsection 7 of section 3 of the Act describes what the physician
must do in the event that “no risk factor is determined to be present.”
(7)

In the event that no risk factor is determined to be present,
the physician shall include in the patient’s records a
statement that the physician has discussed the information
required by the other parts of this section and that the

41

physician has made a reasonable determination that the
mother understands the information in question[.]
The Act defines “risk factor associated with abortion” as “any factor,
including any physical, psychological, emotional, demographic, or situational
factor, for which there is a statistical association with an increased risk of one
or more complications associated with legal abortion, such that there is a less
than five percent probability that the statistical association is due to sampling
error.” And the Act defines “complications associated with abortion”15 as “any
adverse physical, psychological, or emotional reaction, for which there is a
statistical association with legal abortion, such that there is a less than five
percent probability that the statistical association is due to sampling error.”
In order “[t]o be recognized as a risk factor” or “complication associated
with legal abortion,” “the statistical information must have been published in
the English language, after 1972, in at least one peer-reviewed journal indexed
by the search services maintained by the United States National Library of
Medicine (PubMed or MEDLINE . . . ) or in at least one peer-reviewed journal
indexed by any search service maintained by the American Psychological
Association (PsycINFO . . . )[.]” See Section 7(2)-(3) of the Act. And “the date of

15

The phrase “complications associated with abortion” does not appear
anywhere else in the Act. The court presumes that the legislature meant to
define the term “complications associated with legal abortion” because this
phrase is used in defining what is meant by “risk factor associated with
abortion.” See Section 7(2) (emphasis added).
42

first publication [of the article] must be not less than twelve months before the
date of the initial consultation described in section 3 of this Act.” See Section
7(2)-(3).
Plaintiffs challenge these sections, hereinafter referred to as the Risk
Factors Requirement, on four grounds: (1) they violate the patients’ rights to
obtain an abortion; (2) they violate plaintiffs’ right to free speech; (3) they
violate the patients’ and plaintiffs’ rights to equal protection of the laws; and
(4) they are unconstitutionally vague.16
1.

Compelled Speech (Physician) Analysis

“In general, to address a claim that a state action violates the right not to
speak, a court first determines whether the action implicates First Amendment
protections.” Rounds, 530 F.3d at 733. If the state action does implicate First
Amendment protections, then “the court must determine whether the action is
narrowly tailored to serve a compelling state interest.” Id.
The Eighth Circuit Court of Appeals has determined that Casey and
Gonzales v. Carhart, 550 U.S. 124 (2007), “establish that, while the State
cannot compel an individual simply to speak the State’s ideological message, it
can use its regulatory authority to require a physician to provide truthful,

16

The court expresses no opinion as to whether plaintiffs are likely to
succeed on the merits with regard to their claim that the Risk Factors
Requirement violates patients’ and physicians’ rights to equal protection of the
laws or that the Risk Factors Requirement is unconstitutionally vague.
43

non-misleading information relevant to a patient’s decision to have an
abortion[.]” Rounds at 734-35. According to the Eighth Circuit Court of
Appeals, plaintiffs have the burden of demonstrating that the Risk Factors
Requirement compels a physician to disclose untruthful, misleading, or
irrelevant statements to a patient when consulting with her about whether or
not to have an abortion. See id. at 735 (“Therefore, Planned Parenthood cannot
succeed on the merits of its claim that § 7(1)(b) violates a physician’s right not
to speak unless it can show that the disclosure is either untruthful,
misleading or not relevant to the patient’s decision to have an abortion.”
(emphasis added)). But see Casey, 505 U.S. at 882 (“If the information the
State requires to be made available to the woman is truthful and not
misleading, the requirement may be permissible.” (emphasis added)).17
A “risk factor associated with abortion” is “any factor, including any
physical, psychological, emotional, demographic, or situational factor, for
which there is a statistical association with an increased risk of one or more
complications associated with legal abortion[.]” And “complications associated
with [legal] abortion” are “any adverse physical, psychological, or emotional
reaction, for which there is a statistical association with legal abortion[.]” The

17

The burden explicitly imposed on the challenger by the Eighth Circuit
in Rounds appears to be inconsistent with the burden implicitly imposed on the
government in Casey. This court must follow the most recent decision of the
Eighth Circuit Court of Appeals.
44

definition of a “risk factor associated with abortion” therefore contains within it
the definition of “complications associated with [legal] abortion.” Thus, when
read in conjunction, a “risk factor associated with abortion” is “any factor,
including any physical, psychological, emotional, demographic, or situational
factor, for which there is a statistical association with an increased risk of”
“any adverse physical, psychological, or emotional reaction, for which there is a
statistical association with legal abortion, such that there is a less than five
percent probability that the statistical association is due to sampling error.”
Applying the Act’s plain language, a physician must inform a patient
about the adverse reaction if the patient has a physical, psychological,
emotional, demographic, or situational factor that is statistically associated
with any adverse physical, psychological, or emotional reaction when the
adverse reaction is statistically associated with legal abortion. That is, as long
as the patient has a “factor” that is statistically associated with an “adverse
reaction,” and the “adverse reaction” is statistically associated with legal
abortion, the doctor must inform the patient about those factors and their
association to the adverse reactions.
Under South Dakota law, when a statute is “not ambiguous,” “[i]t is to be
assumed that [the statute] means what it says and that the legislature has said
what it meant.” Kreager v. Blomstrom Oil Co., 298 N.W.2d 519, 521 (S.D. 1980)
(citation omitted). Thus, the Act requires the physician to tell the patient about

45

“any factor . . . for which there is a statistical association with an increased
risk of” “any adverse physical, psychological, or emotional reaction, for which
there is a statistical association with legal abortion, such that there is a less
than five percent probability that the statistical association is due to sampling
error” that can be found anywhere in the nearly forty years of published
literature covered by the Act. The literature covered by the Act also includes
studies conducted in countries where abortion may be legal, but not practiced
as safely as in the United States. And nothing in the text of the statute permits
physicians to use their medical judgment to avoid disclosing information that is
untrue, misleading, or irrelevant.
For example, the literature covered by the Act includes articles that find
a statistical association between abortion and breast cancer for patients with
certain risk factors. See Docket 10-3, Declaration of Jill L. Meadows, M.D., at
¶ 10 (citing M.C. Pike et al., Oral Contraceptive Use and Early Abortion as Risk
Factors for Breast Cancer in Young Women, 43 Brit. J. Cancer 72 (1981)). The
cited article finds that for women having a first-trimester abortion without a
prior full-term pregnancy, the risk of breast cancer increases nearly two-and-ahalf times. Thus, under the Act a physician would be required to tell a patient
in her first trimester who had not previously carried a pregnancy to full term
that an abortion would increase her risk of having breast cancer by nearly twoand-a-half times. This information is misleading.

46

In the intervening twenty years, national organizations with specialized
expertise in cancer and reproductive health such as the National Cancer
Institute, the American Cancer Society, and the American College of
Obstetricians and Gynecologists, have reached a consensus that having an
abortion does not increase patients’ risk of breast cancer. See Docket 10-3 at
¶ 12. These organizations have found that the methodology of the earlier study
was flawed and unreliable. Other examples exist of misleading, irrelevant, and
untruthful information that must be disclosed under the Risk Factors
Requirement. See Docket 10-3 at ¶¶ 16-25.
Defendants argue that the physician is free to explain to the patient that
this type of forced disclosure is untruthful or misleading. The court rejects this
argument because even if the physician is allowed to tell the patient that the
previously disclosed information is untruthful or misleading, then that
information is irrelevant to the patient. And a physician cannot be forced to
disclose information that is “untruthful, misleading or not relevant to the
patient’s decision to have an abortion.” See Rounds, 530 F.3d at 735.
Under the analytical framework established in Rounds, this court must
now evaluate whether the Act is “narrowly tailored to serve a compelling state
interest.” 530 F.3d at 733. The Act’s title states that the purpose of the Act is
“to establish certain procedures to better insure such decisions are voluntary,
uncoerced, and informed.” The court assumes, without deciding, that this is a

47

compelling state interest. But defendants are unlikely to be able to
demonstrate that the Act is narrowly tailored to serve this interest.
The Risk Factors Requirement is not narrowly tailored because it forces
physicians to disclose all “risk factors” and “adverse reactions” identified, even
if the study demonstrating the statistical association is subsequently
discredited and is therefore untruthful, misleading, or irrelevant. Plaintiffs have
therefore demonstrated that they are likely to succeed on their challenge to the
Risk Factors Requirement because it violates the First Amendment’s Free
Speech Clause.
2.

Undue Burden Analysis

As discussed above, whether the Risk Factors Requirement constitutes
an “undue burden” depends on whether, in a large fraction of the cases in
which it is relevant, it creates a “substantial obstacle to a woman’s choice to
undergo an abortion.” See Miller, 63 F.3d at 1458. There are three issues that
must be resolved in order to determine whether plaintiffs have met their
burden: (1) in what cases is the requirement “relevant;” (2) does the
requirement create a “substantial obstacle to the woman’s choice to undergo an
abortion” in those cases that are “relevant;” and (3) is the substantial obstacle
present in a “large fraction” of the “relevant” cases. Id.
With regard to the first issue, determining the relevant cases, it is clear
that the Risk Factors Requirement applies to every woman who chooses to

48

undergo an abortion. That is, if a woman chooses to undergo an abortion, the
physician must provide her with certain information before performing an
abortion. Thus, the relevant cases are those instances where a pregnant
woman has chosen to undergo an abortion.
The second issue is whether the Risk Factors Requirement constitutes a
substantial obstacle. The Risk Factors Requirement departs from standard
medical practice by mandating that physicians identify, retrieve, and review
every article published in English, after 1972, in every peer-reviewed journal
indexed by PubMed or MEDLINE or PsycINFO that could trigger an assessment
or disclosure obligation because it could include a “risk factor” or
“complication” as defined in the Act. After this undertaking, physicians are
required to assess every patient for the resulting list of “risk factors,” discuss
the assessment, and disclose the associated “complications,” as well as “the
rate at which those complications occur both in the general population and in
the populations of persons with the risk factor.” See Section 3(6) of the Act.
PubMed is an online, searchable database of approximately 20 million
journal article citations (including articles from MedLine). Docket 10-12,
Declaration of Kelly Blanchard, at ¶ 14. PsycINFO is a database covering the
psychological literature that includes over 3 million records from approximately
2,500 journals. Id. But neither PubMed nor PsycINFO contains full coverage of
every indexed journal. Docket 10-12 at ¶ 18. Thus, to access all of the English

49

language post-1972 articles published in every peer-reviewed journal indexed
by either database, a physician would have to figure out which journals and
articles are not fully covered back to 1973 on PubMed or PsycINFO and find
some other means to access and search those articles. Docket 10-12 at ¶ 19.
This could entail searching each individual journal online or through a library
or publisher. Docket 10-12 at ¶ 19. Finally, neither PubMed nor PsycINFO
searches the full text of articles. Docket 10-12 at ¶ 20. Instead, each searches
only a series of fields (including article title, abstract, author, and certain terms
or keywords). Therefore, unless the article contains the relevant search term in
one of the fields, it would not turn up in a search. But if a physician misses
even one responsive “factor” mentioned anywhere—even in a footnote—in just
one article the physician could be subject to civil and professional penalties
under the Act.
Even if a physician could formulate a search and retrieve all of the
required materials, the volume of articles the physician would have to review
and analyze would be prohibitive. For example, a search for the term
“abortion,” restricted to journals published in English between January 1973
and July 2010 yields more than 45,000 results in PubMed and more than
2,000 results in PsycInfo. Docket 10-12 at ¶ 24. Even ignoring the fact that
some responsive articles will be missed in the above search, no physician could
review the thousands of articles yielded by searching the two databases.

50

Defendants argue that when these requirements are properly construed,
a physician can comply with the Risk Factors Requirement. They assert that
“the relevant databases are easily searched” and that “a number of
comprehensive reviews have been published since 1973 which would identify
most, if not all, of the relevant literature.” Docket 32-1, Declaration of Byron C.
Calhoun, M.D., at ¶ 31. Defendants do not identify or describe these
“comprehensive reviews.” And the plain language of the Act places the burden
on physicians to identify and review all of the relevant literature, not most of
it. Thus, plaintiffs have shown that they are likely to demonstrate that
compliance with the Risk Factors Requirement is impossible or nearly
impossible to satisfy.
The barrier imposed by the Risk Factors Requirement is compounded by
the Act’s provisions imposing civil liability on physicians who perform
abortions. The Act creates a new civil action by the woman or her survivors
against both the physician and the facility where the abortion was performed if
the physician fails to comply with any of the Act’s requirements, including the
Risk Factors Requirement. Future plaintiffs may receive a wide range of
damages and attorneys’ fees.18 Moreover, the Act creates a presumption that a

18

Future plaintiffs may “obtain a civil penalty in the amount of ten
thousand dollars, plus reasonable attorney’s fees and costs, jointly and
severally from the physician who performed the abortion and the abortion
facility[.]” This amount is “in addition to any damages that the woman or her
survivors may be entitled to receive under any common law or statutory
51

woman would not have had the abortion if the physician had complied with the
Act’s requirements.
This presumption is a rebuttable presumption. But the Act provides that
if a physician presents evidence rebutting the presumption, the “finder of fact”
must determine whether the woman would have consented to the abortion “if
she had been given . . . all information required by this Act to be disclosed[.]”
See Section 9(3) of the Act. And as explained above, this includes information
that is presented in an article as being true but is actually untrue and
therefore misleading or irrelevant. Understandably, physicians will be unwilling
to perform abortions when faced with likely litigation that will include this type
of situation. See Planned Parenthood of the Heartland v. Heineman, 724 F.
Supp. 2d 1025, 1044 (D. Neb. 2010).
As Judge Smith Camp found when assessing similar legislation in
Nebraska, “[t]he threat of such litigation is real, and imminent.” Id. at 1045.
Because the Risk Factors Requirement is impossible or nearly impossible to
comply with, women may lose a constitutional right because no physician may
be willing to perform an abortion in South Dakota. See id. at 1044 (recognizing
that a similar impossible requirement “plac[ed] women in immediate jeopardy
of losing access to physicians who are willing to perform abortions” by “placing

provisions, . . . [and] in addition to the amounts that the woman or other
survivors of the deceased unborn child may be entitled to receive under any
common law or statutory provisions[.]” See Section 8 of the Act.
52

physicians who perform abortions in immediate jeopardy of crippling civil
litigation”). “If this statutory provision is allowed to stand, there may not be any
provider willing to subject himself to the vagaries of the statute for those
women who desire to exercise their constitutional rights consistent with Roe
and Casey.” Planned Parenthood, Sioux Falls Clinic v. Miller, 860 F. Supp. 1409,
1418 (D.S.D. 1994). Thus, plaintiffs have demonstrated that the Risk Factors
Requirement poses a substantial obstacle to a woman’s choice to undergo an
abortion.
The third issue in the undue burden analysis is whether the Risk Factors
Requirement is a substantial obstacle in a large fraction of the relevant cases.
Every woman who chooses to undergo an abortion will be unable to obtain one
because the Risk Factors Requirement applies to every woman who seeks an
abortion in South Dakota and no physician will be able, or willing, to perform
an abortion without violating these requirements. The Risk Factors
Requirement is therefore a substantial obstacle in a large fraction of the
relevant cases. Thus, plaintiffs are likely to demonstrate that the Risk Factors
Requirement constitutes an undue burden on a woman’s constitutional right to
a pre-viability abortion.
For the reasons stated above, the court finds that plaintiffs have met
their burden of demonstrating that they are likely to succeed on the merits
with regard to their challenges against the Pregnancy Help Center Provision,

53

the Risk Factors Provision, the Coercion Provisions, and the 72-Hour
Requirement.
E.

Separability Issues

Section 11 of the Act states that “[i]f any provision of this Act is found to
be unconstitutional or its enforcement temporarily or permanently restrained
or enjoined by judicial order, the provision is severable.” As plaintiffs correctly
point out, “[t]he ‘doctrine of separability’ requires [a] court to uphold the
remaining sections of a statute if they can stand by themselves and if it
appears that the legislature would have intended the remainder to take effect
without the invalidated section.” Dakota Sys., Inc. v. Viken, 694 N.W.2d 23, 32
(S.D. 2005) (citations omitted). This doctrine applies even when the legislature
enacts a separability provision as it did here. See Application of Nelson, 163
N.W.2d 533, 537 (S.D. 1968) (applying “doctrine of separability” when the
legislature enacted a similar separability clause). A two-part test applies under
the doctrine of separability: (1) whether “the remaining sections can stand by
themselves;” and (2) whether “the Legislature would have intended the
remaining sections to take effect.” Dakota Sys., Inc., 694 N.W.2d at 32 (citation
omitted).
Section 2 of the Act states that “[t]he requirements expressly set forth in
this Act, that require procedures designed to insure that a consent to an
abortion is voluntary and uncoerced and informed, are an express clarification

54

of, and are in addition to, th[e] common law duties” of a physician. Because
each of the requirements imposed on a physician by the Act are likely to be
unconstitutional as explained above, this section cannot stand on its own.
Section 3 contains the 72-Hour Requirement and is likely to be
unconstitutional. Section 3 also contains portions of the Coercion Provisions,
the Risk Factors Provisions, and the Pregnancy Help Center Requirements. And
each of these is likely to be unconstitutional. Those portions of Section 3 that
are record keeping requirements associated with the unconstitutional
provisions cannot stand by themselves.
Section 4 depends on the other provisions in the Act, including the Risk
Factors Requirement, Pregnancy Help Center Requirements, 72-Hour
Requirement, and the Coercion Provisions, and is therefore likely to be
unconstitutional.
Section 5 of the Act establishes that the Department of Health shall
maintain a registry of pregnancy help centers located in South Dakota and
identifies the requirements associated with the registry. Plaintiffs have not
challenged this section of the Act in their motion for preliminary injunction.19
Moreover, this section can stand on its own because there is nothing in

19

By itself, section 5 does not regulate abortions, women seeking
abortions, or physicians who perform abortions.
55

section 5 that is likely to be unconstitutional.20 And there is nothing to suggest
that the legislature did not intend for this section to remain in effect.
Section 6 of the Act cannot stand on its own because it consists entirely
of the Pregnancy Help Center Requirements that are likely to be
unconstitutional.
Section 7 of the Act defines several terms used in the Act that are part of
the Risk Factors Requirement, the Coercion Provisions, and the Pregnancy
Help Center Requirements. With the exception of the pregnancy help center
definition, the legislature clearly did not intend for this section to take effect on
its own because the definitions are limited to the Act. The pregnancy help
center definition, however, can stand on its own because it relates to section 5,
which is valid, and it regulates which entities can register to become a
“pregnancy help center.” Thus, subsection 1 of section 7 is severable because it
can stand on its own and is intended to take effect on its own.
Section 8 of the Act creates a civil cause of action for violations of
sections 3 and 4 of the Act, which are likely to be unconstitutional. Thus, this
section cannot stand on its own.
Section 9 of the Act establishes different “presumptions” that apply in a
civil action that arises from a failure to comply with any of the provisions of

20

Subsection 7 of section 5 references “section 11 of this Act as it relates
to discussion of religious beliefs,” but section 11 does not deal with religion.
56

Chapter 34-23A. Subsection 2 of section 9 contains portions of the Coercion
Provisions and establishes a “nonrebuttable presumption that the mother
would not have consented to the abortion if the physician had complied with
the provisions of this Act.” Because the Coercion Provisions are likely to be
unconstitutional, this subsection cannot stand on its own.
Subsection 3 of section 9 provides that if a physician produces evidence
to rebut the presumption created in subsection 1, then the finder of fact is
required to consider “all information required by this Act to be disclosed.” The
information that is required by “this Act” includes information provided under
the Pregnancy Help Center Requirements and the Risk Factors Requirement,
which are likely to be unconstitutional. Thus, subsection 3 cannot stand on its
own.
Although on its face subsection 1 of section 9 appears to be capable of
standing alone, it is clear that the legislature did not intend for it to take effect
on its own because subsection 3 explicitly refers to subsection 1 and explains
what needs to be shown for a physician to overcome the presumption created
in subsection 1.
Subsection 4 of section 9 of the Act cannot stand on its own because it
imposes a duty on a pregnant woman to consult with a “pregnancy help center
as referenced in sections 3 and 4 of this Act,” which are likely to be
unconstitutional.

57

Subsection 5 of section 9 has not been challenged by plaintiffs. Moreover,
it can stand on its own because it does not reference any of the other
provisions in the Act that are likely to be unconstitutional. The legislature
intended for it to take effect on its own because it extends to “the requirements
of this chapter,” rather than just the Act.
Sections 1, 10, and 11 cannot stand on their own and were obviously not
intended by the legislature to take effect on their own.
To summarize, the following portions of the Act are severable from those
portions that are likely to be unconstitutional: section 5; subsection 1 of
section 7; and subsection 5 of section 9. The remaining portions of the Act are
likely to be struck down and are not severable as explained above. Having
found that plaintiffs have satisfied the threshold requirement for enjoining a
duly enacted statute, the court will now consider the remaining Dataphase
factors.
III.

Threat of Irreparable Harm
As discussed above, plaintiffs have established that they are likely to

succeed on the merits with regard to their challenges against the Pregnancy
Help Center Requirements, the 72-Hour Requirement, the Risk Factors
Requirement, and the Coercion Provisions. Constitutional violations, however
brief, are unquestionably irreparable. See Kirkeby v. Furness, 52 F.3d 772, 775
(8th Cir. 1995) (“ ‘The loss of First Amendment freedoms, for even minimal

58

periods of time, unquestionably constitutes irreparable injury.’ ” quoting Elrod
v. Burns, 427 U.S. 347, 373, (1976)). Thus, the court finds that this factor, the
threat of irreparable harm, weighs in favor of granting the preliminary
injunction.
IV.

Balance of the Harms
The balance of the harms factor calls for the court to balance the harms

that would result in the following scenarios: (1) if the preliminary injunction
was improperly denied because plaintiffs prevailed on the merits of the case;
and (2) if the preliminary injunction was improperly granted because
defendants prevailed on the merits of the case. See Scotts Co. v. United Indus.
Corp., 315 F.3d 264, 284 (4th Cir. 2002) (“[W]hile cases frequently speak in the
short-hand of considering the harm to the plaintiff if the injunction is denied
and the harm to the defendant if the injunction is granted, the real issue in
this regard is the degree of harm that will be suffered by the plaintiff or the
defendant if the injunction is improperly granted or denied.”); see also Hillerich
& Bradsby Co. v. Christian Bros., Inc., 943 F. Supp. 1136, 1142 (D. Minn. 1996)
(balancing the harms by looking at what the harm to the defendant would be if
the injunction were “improperly granted”).
If the preliminary injunction is 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. The extent of the harm if the preliminary

59

injunction turns out to have been improperly granted is that defendants will
have been wrongly prevented from carrying out their official duties.
After balancing the harm to the parties, the court finds that both are
potentially exposed to harm if the preliminary injunction is found to have been
improperly granted or denied. Nonetheless, when considering the nature of the
parties’ interests that are at stake, the potential harm to plaintiffs’ interests are
more severe because the harms directly affect personal liberty interests. Thus,
the court finds that the balance of the harms weighs in favor of granting the
preliminary injunction.
V.

Public Interest
As discussed above, plaintiffs have demonstrated that the Act and its

specified provisions are “likely” unconstitutional. There is a public interest in
protecting a woman’s constitutional right to choose an abortion and in
protecting the constitutional right to free speech. And the public has a clear
interest in ensuring the supremacy of the United States Constitution. While the
public also has an interest in the enforcement of duly enacted state laws, that
interest is secondary to the public interests expressed above. Thus, the court
finds that this factor weighs in favor of granting the preliminary injunction.

60

CONCLUSION
In weighing the four factors set out in Dataphase, as modified by Planned
Parenthood v. Rounds, 530 F.3d at 732-33, the court finds that plaintiffs have
sufficiently demonstrated the need for a preliminary injunction.
Accordingly, it is
ORDERED that plaintiffs’ motion for a preliminary injunction is granted
as to all sections of the Act except for section 5, subsection 1 of section 7, and
subsection 5 of section 9.
Dated June 30, 2011.
BY THE COURT:

/s/ Karen E. Schreier
KAREN E. SCHREIER
CHIEF JUDGE

61