Planned Parenthood v. Mike Rounds , 467 F.3d 716 ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 05-3093
___________
Planned Parenthood Minnesota, *
North Dakota, South Dakota; Carol *
E. Ball, M.D., *
*
Plaintiffs - Appellees, *
*
v. *
*
Mike Rounds, Governor, in his *
official capacity; Larry Long, * Appeal from the United States
Attorney General, in his official * District Court for the District of
capacity, * South Dakota.
*
Defendants - Appellants, *
*
Alpha Center; Black Hills Crisis *
Pregnancy Center, doing business as *
Carenet; Dr. Glenn A. Ridder, M.D.; *
Eleanor D. Larsen, M.A., LSWA, *
*
Intervenors on Appeal. *
___________
Submitted: April 20, 2006
Filed: October 30, 2006
___________
Before MURPHY, MELLOY, and GRUENDER, Circuit Judges.
___________
MURPHY, Circuit Judge.
Planned Parenthood of Minnesota, North Dakota, South Dakota and its medical
director Dr. Carol E. Ball (collectively Planned Parenthood) brought this action under
the First and Fourteenth Amendments against Governor Mike Rounds and Attorney
General Larry Long (state officials) to enjoin enforcement of measures enacted in
2005 revising the South Dakota law on informed consent to abortion. The district
court1 granted a preliminary injunction enjoining the new law from going into effect,
and the state officials appeal.2 Because we conclude that the plaintiffs showed a
likelihood of prevailing on their constitutional arguments and that the district court did
not abuse its discretion in granting injunctive relief at this preliminary stage of the
proceedings, we affirm.
I.
In 1993 South Dakota enacted a law providing that no abortion can be
performed without the patient’s voluntary and informed consent unless it is impossible
to obtain such consent due to a medical emergency. S.D.C.L. § 34-23A-10.1 (2003).
Under this statute, the patient's consent will be informed only if certain information
has been given to her at least 24 hours before an abortion procedure. The information
required by the 1993 law includes the name of the physician who will perform the
abortion, the medical risks associated with abortion and with carrying her child to
term, and the probable gestational age of the embryo or fetus she is carrying. The
patient must also have been told that medical assistance benefits may be available, that
the father may be liable for support if she has her child, and that she has the right to
view complimentary printed materials with pictures and drawings of embryos and
1
The Honorable Karen E. Schreier, Chief Judge, United States District Court
for the District of South Dakota.
2
The state officials shared their oral argument time with crisis pregnancy centers
Alpha Center and Black Hills Crisis Pregnancy Center and their staff members, all of
whom were granted leave to intervene after this appeal was filed.
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fetuses at various gestational ages. Id. After the patient has received all of this
information, she must sign an informed consent certification. Id. A provider's failure
to comply with the state's informed consent requirements is a class 2 misdemeanor.
S.D.C.L. § 34-23A-10.2 (2005).3 We upheld the constitutionality of this 1993 law in
Planned Parenthood, Sioux Falls Clinic v. Miller, 63 F.3d 1452, 1467 (8th Cir. 1995).
In 2005 South Dakota enacted House Bill 1166 (the Act) which is the subject
of this action. The Act amended the 1993 version of § 33-23A-10.1 and expanded the
disclosure requirements for informed consent to abortion. The disclosures required
under the new law are contained in § 7 of the Act. Under § 7, a woman contemplating
abortion must receive oral disclosures from the physician scheduled to perform the
abortion or a designee 24 hours in advance of the procedure and other written
disclosures must be given by the physician no less than 2 hours before the procedure.
The mandatory disclosures include all of the information required under the prior law
as well as the new provisions.
As part of the new disclosures required under § 7, the doctor’s written statement
provided 2 hours before an abortion must inform the patient:
(b) That the abortion will terminate the life of a whole, separate, unique,
living human being;
(c) That [the patient] has an existing relationship with that unborn human
being and that the relationship enjoys protection under the United States
Constitution and under the laws of South Dakota;
(d) That by having an abortion, her existing relationship and her existing
constitutional rights with regards to that relationship will be
terminated . . . .
3
A class 2 misdemeanor is punishable by up to 30 days imprisonment and/or a
$500 fine; restitution may also be ordered. S.D.C.L. § 22-6-2.
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S.D.C.L. § 34-23A-10.1(1)(b)–(d)(2005). Section 8 of the Act defines "human being"
as an "individual living member of the species Homo sapiens." Although this
definition is not part of the written statements required by § 7, the state officials
suggest that a physician could choose to include it.
Other new disclosures mandated by § 7 of the Act include more specific
information about the psychological risks of abortion, including depression, suicide,
and suicidal ideation, to be given as part of the written statements 2 hours before the
procedure. See S.D.C.L. § 34-23A-10.1(1)(e) (2005). The name, address, and
telephone number of a nearby crisis pregnancy center must also be provided with the
other oral disclosures 24 hours in advance. After the patient has read the written
portion of the required disclosures, § 7 requires that she sign each page of the
statement verifying that she has understood all the disclosures. S.D.C.L. § 34-23A-
10.1(1) ¶ 2 (2005). If she asks for clarification or explanation about any required
disclosure or has any other significant question, the physician's response must also be
in writing. Id. That response becomes part of the patient's permanent medical record.
Once all of the required disclosures have been provided, § 7 requires that the
physician certify that she is satisfied that the patient "understands the information
imparted." S.D.C.L. § 34-23A-10.1(2) (2005).
Section 10 of the 2005 Act provides that the 1993 informed consent
requirements shall remain in effect if the provisions of § 7 are enjoined, suspended,
or delayed. Section 11 provides that if any part of § 7 is found unconstitutional, it
shall be severed from the remaining valid provisions of the Act.
Before the Act was to go into effect on July 1, 2005, Planned Parenthood
brought this action and moved for a preliminary injunction. Planned Parenthood
argued that requiring physicians to state in writing to their patients that abortion
"terminates the life of a whole, separate, unique, living human being" violates the First
and Fourteenth Amendment rights of both doctors and women, as do the two related
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required written statements about the patient’s “existing relationship” with that unborn
human being and the potential termination of that relationship. Planned Parenthood
argued that the constitutional injuries were reinforced by the physician's obligation to
certify that the patient has not only received these messages but also understood
them.4 In its opposition to the motion, the state officials characterized these three
challenged disclosures as statements of medical and scientific fact which are necessary
to give complete and accurate information to women contemplating abortion.
The district court evaluated the request for injunctive relief under the four
Dataphase factors: 1) the probability of success on the merits; 2) the threat of
irreparable harm to the movant; 3) the balance between this harm and the injury which
will result from granting the injunction; and 4) whether issuance of the injunction was
in the public interest. Dataphase Sys., Inc. v. C L Sys. Inc., 640 F.2d 109, 114 (8th
Cir. 1981) (en banc).
The district court found that the challenged disclosures express the state’s
ideology on an “unsettled medical, philosophical, theological, and scientific issue.”
Planned Parenthood of South Dakota v. Rounds, 375 F. Supp. 2d 881, 887 (D.S.D.
2005) (citing Roe v. Wade, 410 U.S. 113 (1973)). The court concluded that the
requirement that physicians give these messages likely violates their First Amendment
rights against compelled speech and that Planned Parenthood had shown that it was
likely to succeed on the merits. The court further determined that Planned Parenthood
had demonstrated a threat of irreparable harm and that the balance of the harms and
the public interest were also in its favor. It accordingly granted preliminary injunctive
4
Planned Parenthood also argued that the new disclosure requirements in § 7
regarding the psychological risks of abortion and information about nearby crisis
pregnancy centers are unconstitutionally vague and that the requirement for obtaining
informed consent, unless a medical emergency makes it "impossible,"
unconstitutionally endangers the life and health of pregnant women. The district court
did not discuss these arguments.
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relief, enjoining the new provisions in § 7 of the Act but providing that the prior
informed consent law remain in effect during the pendency of the preliminary
injunction pursuant to § 10 of the Act.
II.
On appeal the state officials and the intervenors (collectively South Dakota)
argue that the district court erred in granting preliminary injunctive relief and
alternatively that the court should have enjoined only those provisions of § 7 which
it specifically found likely to be constitutionally infirm. We review a decision to grant
preliminary injunctive relief with the assistance of the Dataphase factors, United
Indus. Corp. v. Clorox Co., 140 F.3d 1175, 1178-79 (8th Cir. 1998). We will reverse
if there was an abuse of discretion. Coca-Cola Co. v. Purdy, 382 F.3d 774, 782 (8th
Cir. 2004). An abuse of discretion occurs if the decision of the district court is based
on clearly erroneous factual findings or erroneous legal conclusions. Lankford v.
Sherman, 451 F.3d 496, 503-04 (8th Cir. 2006).
A.
The best starting point for our Dataphase analysis is consideration of the
plaintiffs' likelihood of success on the merits. Cf. Clorox, 140 F.3d at 1179. This test
is not one of mathematical probability, but rather a question of whether Planned
Parenthood has a "fair chance of prevailing" after discovery and a full trial. Heartland
Acad. Cmty. Church v. Waddle, 335 F.3d 684, 690 (8th Cir. 2003). We will uphold
a preliminary injunction "if the underlying constitutional issue is close." Planned
Parenthood of the St. Louis Region, Inc. v. Nixon, 428 F.3d 1139, 1145 (8th Cir.
2005) (internal quotations omitted).
Statutes regulating informed consent to abortion can implicate both a woman’s
fundamental due process right to have access to the procedure free from any undue
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burden as well as her doctor’s First Amendment right against compelled speech.
Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 881-84
(1992) (plurality opinion). South Dakota argues that the preliminary injunction was
based on erroneous legal premises. Its primary contention is that the challenged
disclosures are statements of medical and scientific fact, making the requirement that
physicians give them consistent with Casey and the Supreme Court's compelled
speech cases. Planned Parenthood responds that the district court correctly
determined that the disclosures are not factual or scientific, but ideological in nature,
and that the requirement that physicians give these written statements likely violates
the First Amendment.
The right to free speech encompasses both the right to speak or write freely and
the right not to do so under some circumstances. Wooley v. Maynard, 430 U.S. 705,
714 (1977). To determine whether a particular speech requirement violates the right
to refrain from speaking, a court must determine whether the requirement implicates
First Amendment protections, id. at 714-15, and if it does, whether it is narrowly
tailored to further a compelling state interest. Id. at 715-16; Pac. Gas & Elec. Co. v.
Pub. Utils. Comm'n of Ca., 475 U.S. 1, 19 (1986) (plurality opinion).
Governmentally compelled expression is particularly problematic when a
speaker is required by the state to impart a political or ideological message contrary
to the individual’s own views. Cf. Nixon v. Shrink Mo. Gov't PAC, 528 U.S. 377,
410-11 (2000) (Thomas, J., dissenting) (finding it is "unassailable" that "[p]olitical
speech is the primary object of First Amendment protection."); Riley v. Nat'l Fed'n of
the Blind, 487 U.S. 781, 797 (1988) (treating compelled speech and compelled silence
as constitutionally equivalent). The Court determined in Wooley that a law
prohibiting New Hampshire residents from covering up the license plate motto "Live
Free or Die" forced those who objected to the message to use their cars as "mobile
billboards" for the state's viewpoint. 430 U.S. at 715. The state's proffered
justifications – public safety and the preservation of communal values – were not
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sufficiently compelling to justify the regulation. Id. at 715-17. The Court reached a
similar result in Pacific Gas, where a California administrative order required a utility
company to disseminate a hostile consumer newsletter with its billing statements. 475
U.S. at 12-18. Although the state's interest in fair and effective utility regulation may
have been compelling, the Court concluded that it had other regulatory alternatives
which would not have violated the First Amendment. Id. at 19-20.
The Casey Court did not except informed consent to abortion statutes from
normal First Amendment compelled speech protections, see 505 U.S. at 884, but it did
resolve the constitutional balance of interests somewhat differently for state laws
requiring disclosure of truthful, nonmisleading factual information to women
contemplating abortion than in its balancing in Wooley and Pacific Gas. See 505 U.S.
at 882. The Court concluded that the Constitution permits "information about the
nature of the procedure, the attendant health risks and those of childbirth, and the
'probable gestational age' of the fetus." Id. Although disclosure requirements may
implicate serious moral and political issues for physicians, they are permissible under
the First Amendment if they are part of the state’s "reasonable licensing and
regulation" of the practice of medicine. Id. at 884. Under Casey, South Dakota may
require that prolife messages be made available to women who want to receive them,
just as it could require prochoice messages if it wished. See id. at 882-83. Since the
law at issue in Casey required doctors only to disclose the fact that printed materials
were available rather than requiring them to deliver ideological messages themselves,
the Court did not need to confront Justice O'Connor's concern in City of Akron v.
Akron Ctr. for Reprod. Health, Inc., 462 U.S. 416 (1983), that "informed consent
provisions may ... violate the First Amendment rights of the physician if the State
requires him or her to communicate its ideology." See id. at 472 n.16 (O’Connor, J.,
dissenting) (citing Wooley, 430 U.S. at 705). In no case has the Court extended the
bounds of permissible regulation to laws which force unwilling speakers themselves
to express a particular ideological viewpoint about abortion.
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South Dakota argues that the challenged disclosures are not ideological, but are
supported by an objective scientific and medical consensus because of the Act's
definition of a "human being" in § 8, as a "living member of the species Homo
sapiens." Although that may be one definition, the term human being is also likely to
have much broader meaning for both physicians and patients. See e.g., NTC's
Compact English Dictionary 220 (2000) ("human being n. a person; a human
creature"); The American Heritage Student Dictionary 720 (1994) ("human being n.
A person; a woman, man, or child"). South Dakota cites no persuasive authority
which supports its theory that the district court was bound by the legislature’s
definition of human being. Under Casey’s teaching, the district court was required to
make a preliminary determination about the objective scientific and medical accuracy
of the statements in the required disclosures. 505 U.S. at 882, 884. This inquiry
would be foreclosed if the legislature had the right to define the most important term
in any way it desired, no matter how misleading. Had the legislature wished to inform
women contemplating abortion that a human fetus or embryo is a member of the
species Homo sapiens, it could have drafted § 7 accordingly instead of referring to a
"whole, separate, unique, living human being." S.D.C.L. § 34-23A-10.1(1)(b). It did
not do so, however, and our task is to evaluate the message South Dakota would
actually compel doctors to give in the disclosures.
The district court's assessment that the challenged disclosures express a value
judgment rather than medical facts has evidentiary support in the record. Planned
Parenthood submitted declarations by Dr. Carol Ball, the other named plaintiff, who
averred that the challenged disclosures contain statements of "ideology and opinion,
not medicine and fact," and by Dr. Paul Root Wolpe, a University of Pennsylvania
bioethicist, who stated that the disclosures were supported by "no scientific or medical
consensus." South Dakota alleges deficiencies in each declaration, including the
affiliation of both declarants with Planned Parenthood and the fact that Wolpe is a
bioethicist rather than a medical doctor. At this preliminary stage, however, we
review factual determinations based on the record for clear error only, Purdy, 382 F.3d
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at 782, since "a party ... is not required to prove his case in full." Univ. of Tex. v.
Camenisch, 451 U.S. 390, 395 (1981). The Wolpe and Ball declarations provide
sufficient evidentiary support for the district court’s findings.
The district court's factual determination about the character of the challenged
disclosures is also supported by the Supreme Court's reasoning in Roe, Akron, and
Casey. In our review of trial court factual determinations, we have distinguished
between adjudicatory and legislative factfinding. Qualley v. Clo-Tex Int’l, Inc., 212
F.3d 1123, 1128 (8th Cir. 2000). Unlike adjudicatory factfinding, legislative
factfinding relates to facts which do not vary based on the activities or characteristics
of particular litigants. Id.; see also A Woman’s Choice-East Side Women’s Clinic v.
Newman, 305 F.3d 684, 689 (7th Cir. 2002). Once resolved by an appellate court,
issues of legislative fact need not be relitigated in lower courts each time they arise
anew. See Carhart v. Gonzales, 413 F.3d 791, 800-01 (8th Cir. 2005) (whether
substantial medical authority supports a need for a health exception to a late term
abortion ban was a question of legislative fact addressed by the Supreme Court in
Stenberg v. Carhart, 530 U.S. 914 (2000)); Newman, 305 F.3d at 689 (same).
The district court was entitled to determine at this stage that whether a fetus or
embryo is a “whole, separate, unique, living human being” as a matter of objective
science is a question of legislative fact already addressed by the Supreme Court. The
Court held in Roe that the state of Texas had no compelling interest in forbidding
abortion from the moment of conception. 410 U.S. at 159. The factual underpinning
for this holding was the Court’s finding that there was no medical, scientific, or moral
consensus about when life begins, making the question of when a fetus or embryo
becomes a human being one of individual conscience and belief. Id. at 159-63. The
Court later relied on this assessment in Akron to strike down part of an informed
consent law which compelled abortion providers to tell their patients that "the unborn
child is a human life from the moment of conception." 462 U.S. at 444. The Akron
majority reasoned that under Roe, states could not "adopt one theory of when life
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begins to justify ... regulation of abortions." Id. (citing Roe, 410 U.S. at 159-62). To
the extent that Akron interpreted Roe to bar enactment of any informed consent
requirement intended to promote childbirth in order to protect "potential life," it was
overruled by Casey. 505 U.S. at 876. The Court gave no indication in Casey,
however, that it was repudiating its view about the lack of a medical, scientific, or
moral consensus as to when human life begins. Cf. id. at 852 ( "some deem [abortion
to be] nothing short of an act of violence against innocent human life")(emphasis
added). And because the Supreme Court did not repudiate its position, it is not for us
to do so. See Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484
(1989) (courts of appeals should leave it to the Supreme Court expressly to overrule
its own decisions).
Legislative factfinding in this case implicates mixed questions of constitutional
law and fact. Cf. Carhart, 413 F.3d at 797-98; Newman, 305 F.3d at 689. At this
stage we do not evaluate whether the lower court’s constitutional conclusions were
correct so long as the underlying question was close. Nixon, 428 F.3d at 1145. Even
if the court's reasoning was correct based on the evidence before it when it decided the
motion for a preliminary injunction, the parties have continued to develop the record
in the district court, giving South Dakota the opportunity to try to establish that its
terminology is supported by a firm medical consensus due to new scientific and
technological developments. See Casey, 505 U.S. at 860 (relying on advances in
neonatal care to declare Roe's trimester framework obsolete). Since the district court's
determination about the ideological nature of the challenged disclosures was not
clearly erroneous, however, it was entitled to hold that requiring doctors both to give
these disclosures in writing to patients and certify that the patients "understand" them
is likely to constitute compelled speech in violation of the First Amendment. See
Wooley, 430 U.S. at 715.
South Dakota argues that even if these challenged disclosure requirements do
constitute compelled speech, they are justified under the second part of the Wooley
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test by its compelling state interests in protecting fetal life and maternal psychological
health. Id. at 715-16. Planned Parenthood responds that South Dakota's interests
could be protected by less burdensome requirements. Even if the protection of
potential fetal life and maternal health are compelling interests, see Casey, 505 U.S.
at 871, 882, South Dakota has not shown that the challenged disclosure requirements
are the least burdensome means at its disposal. Cf. Pacific Gas, 475 U.S. at 19-20.
The district court was not obligated to find the disclosures to be justified by
compelling state interests.
South Dakota finally contends that even if these challenged disclosure
requirements likely were in facial violation of the First Amendment, the district court
still erred in granting preliminary injunctive relief because § 7 of the Act could be
construed to permit physicians to disassociate themselves from the ideological
message they are required to convey. Planned Parenthood counters that if there were
such a disassociation right in the Act, it would not remedy the constitutional injury.
The 2005 Act makes no mention of any right of a physician to disassociate
herself from the statements she is required to give the patient, and it is questionable
that one may be inferred under a statute which makes a provider's failure to comply
with its terms a criminal act. S.D.C.L. § 34-23A-10.2. Where the meaning of a state
statute is unclear, federal courts should avoid granting or denying preliminary
injunctive relief based on a construction urged by one of the parties and instead
consider the statutory ambiguity itself as a factor. Nixon, 428 F.3d at 1144.
Moreover, any such disassociation right would be chilled by the requirements that the
physician certify in writing both that the compelled statements were made and that
they were understood by the patient. These requirements would likely diminish both
the ability of a physician to disassociate herself and the effect of any communication
of her own views.
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In any event, whether § 7 of the Act could be interpreted to permit physicians
to disassociate themselves from the challenged disclosures would appear to have little
impact on Planned Parenthood's likelihood of success on the merits. A physician's
right to disassociate herself from an informed consent to abortion disclosure becomes
constitutionally relevant under Casey if the required information is misleading as
applied to a specific patient, even though it is generally neutral and accurate. See
Fargo Women's Health Org. v. Schafer, 18 F.3d 526, 533-34 (8th Cir. 1994). Where
the required disclosure primarily conveys a subjective political, ideological, or moral
viewpoint rather than medical facts, the issue becomes not the message itself, but the
physician's right to control her own expression for "the choice to speak includes
within it the choice of what not to say." Pac. Gas, 475 U.S. at 16. Even though the
utility company in Pacific Gas was free to add materials with its billing statements to
rebut the hostile assertions the company was forced to include, the Court found this
type of "forced response" to be "antithetical to the free discussion that the First
Amendment seeks to foster." Id. at 911-12. Similarly, the injury which results from
forcing an abortion provider to recite the state's ideological objections to abortion
would not be eliminated by simply allowing her to add her own views.
The new Act also circumscribes the exercise of physicians' medical judgment
more than the statute examined in Casey. The physician's right to exercise medical
judgment has been recognized since Roe, which "vindicate[d] the right of the
physician to administer medical treatment according to his professional judgment" up
until the point of viability. Roe, 410 U.S. at 163. The statute challenged in Casey
preserved a physician's ability to exercise medical judgment because it allowed a
doctor to choose not to obtain informed consent if "he or she reasonably believed that
furnishing the information would have resulted in a severely adverse effect on the
physical or mental health of the patient." Casey, 505 U.S. at 883-84. Under the South
Dakota Act, a physician can proceed with an abortion without obtaining informed
consent only if it would be impossible to obtain it. If a physician were reasonably to
believe that providing the disclosures required by the Act would be detrimental to the
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health and safety of a particular patient, she would be prevented from exercising her
medical judgment to proceed without the advisories if it would be possible for her to
obtain informed consent. This is counter to the law upheld in Casey. See id.
Planned Parenthood additionally argues that the required disclosures likely
violate the rights of women seeking abortion because the disclosures are misleading
and patients are forced to listen to the state’s ideological message. South Dakota
suggests that Planned Parenthood lacks standing to assert these claims because the
interests of abortion providers do not align with those of their patients. It also repeats
its assertion that the disclosures contain nothing but neutral facts.
Although ordinarily one may not claim standing to assert the rights of a third
party, the Supreme Court has carved out an exception for physicians asserting their
patients' right to have access to abortion. Singleton v. Wulff, 428 U.S. 106, 114-18
(1976). Singleton did not adopt a per se rule, id. at 118 n.7, but the Court has never
held since then that a physician lacks standing in this context. The test is not whether
interests are perfectly aligned, but whether the plaintiff physician will "adequately
represent" the absent woman's constitutional rights. Okpalobi v. Foster, 190 F.3d 337,
353 (5th Cir. 1999). We conclude that Planned Parenthood has standing here to assert
the liberty interest of its patients.
States may not enact regulations which unduly burden a woman's right to
terminate her pregnancy before viability of the fetus by placing a substantial obstacle
in her path. Casey, 505 U.S. at 876-77. The required disclosure of truthful,
nonmisleading factual information does not pose a substantial obstacle, whether or not
the purpose is to advocate childbirth. Id. at 882-83. That remains true even if the
provision of information causes some incidental delay and inconvenience. See id. at
874; Schafer, 18 F.3d at 533. It is entirely appropriate for a state to mandate that
certain information be provided to women contemplating abortion in order to protect
both potential life and maternal health by ensuring that the decision about whether to
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abort is “mature and informed.” Casey, 505 U.S. at 883. However, "the means
chosen by the State to further the interest in potential life must be calculated to inform
the woman's free choice, not hinder it." Id. at 877. Disclosure requirements which
hinder a woman's free and informed choice rather than assist it would violate Casey.
We have been unable to find any case in which a federal appellate court has
considered disclosure requirements at all similar to those challenged here. Those
upheld since Casey concerned disclosure requirements which provided factual
information to women contemplating abortion. See Karlin v. Foust, 188 F.3d 446 (7th
Cir. 1999); Fargo Women's Health Org. v. Schafer, 18 F.3d 526 (8th Cir. 1994);
Barnes v. Moore, 970 F.2d 12 (5th Cir. 1992). Here, in contrast, before a woman
seeking an abortion may obtain access to a medical procedure, she is required to
receive extensive information about the state's viewpoints about the procedure. Her
physician must also certify page by page that the patient has understood those
viewpoints and all the other information required by the state. As South Dakota
points out, a woman considering abortion is likely to be in a state of heightened
emotion and vulnerability. Forcing her not only to read, but to sign each page of a
statement containing the state's moral and philosophical objections to the procedure
she has planned and intends to undergo, and forcing her doctor to certify that she
"understands" these objections, does little to promote independent decision making
and may actually exacerbate any adverse psychological consequences of the
procedure. Such disclosure requirements are far more onerous than what federal
courts have previously reviewed, and there is at least a "fair chance" that they pose an
undue burden. Waddle, 335 F.3d at 690.
Because the challenged disclosures could be found to violate both the First
Amendment rights of physicians and the due process rights of women seeking
abortion, we conclude that the district court did not abuse its discretion in holding at
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this preliminary stage that Planned Parenthood demonstrated a likelihood of success
on the merits.
B.
Although likelihood of success is likely the most critical Dataphase factor, the
others must also be considered. Kirkeby v. Furness, 52 F.3d 772, 775 (8th Cir. 1995).
We next turn to the threat of irreparable harm. South Dakota argues that the district
court erred in finding a threat of irreparable harm, asserting that the Act is
constitutional. Planned Parenthood counters that the challenged provisions are
constitutionally suspect and that any violation of First Amendment rights constitutes
irreparable harm.
We have previously recognized that "the loss of First Amendment freedoms,
for even minimal periods of time, unquestionably constitutes irreparable injury."
Kirkeby, 52 F.3d at 775. Kirkeby involved the First Amendment right of abortion
opponents to picket the residences of providing physicians, and we concluded that the
plaintiffs had a strong interest protected by the First Amendment. Id. The interest
abortion providers have in expressing their own personal views on abortion is likely
no less than that of their opponents. In light of its reasonable determination at this
stage that the challenged disclosures express a primarily subjective ideological
viewpoint, the district court did not abuse its discretion in concluding that the
plaintiffs here also demonstrated a threat of irreparable harm.
We next consider the balance of the harms. South Dakota argues that issuance
of the preliminary injunction poses significant risk of harm to pregnant women, citing
not only the constitutional interest such women have in making informed medical
decisions for themselves, Casey, 505 U.S. at 882, but also the interests they have in
their familial relationships and in making decisions for their children. See, e.g.,
Troxel v. Granville, 530 U.S. 57, 74 (2000); Smith v. Org. of Foster Families, 431
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U.S. 816, 845 (1977). Planned Parenthood responds that the district court reasonably
balanced the harms, since South Dakota's prior "robust" informed consent law was left
in place.
In the course of its opinion the district court considered the First Amendment
rights of physicians as well as the rights of women not to be unduly burdened by state
imposed obstacles to abortion, and those interests are appropriately weighed with
those of South Dakota in the balance of harms. Since violations of the Act may
subject abortion providers to criminal penalties, there is added potential harm for
"[c]onstitutional concerns are greatest when the State attempts to impose its will by
[such] force of law . . . ." Maher v. Roe, 432 U.S. 464, 475 (1977).
South Dakota has not shown that the prior informed consent law fails to give
adequate protection to the interests of pregnant women during the pendency of the
temporary injunction. The 1993 law which remains in effect requires a woman
contemplating abortion to be told not only about the potential health risks associated
with abortion, but also about the probable gestational age of her unborn child and
many of the rights and obligations which will accompany that child's birth. It is
highly improbable that after such disclosures, a patient would still be under the
impression that the fetus or embryo she carried was "just tissue," as one witness before
the South Dakota legislature said she had been told about her own abortion. In fact,
none of the women whose legislative testimony and declarations in the record indicate
they were misinformed before their abortions had the benefit of the 1993 law. Their
abortions had taken place either before passage of the 1993 statute or in other states.
Moreover, there is no evidence in the record to indicate that Planned Parenthood,
currently the only abortion provider in South Dakota, has sought to mislead or
otherwise coerce women into violating their beliefs by having abortions. The district
court did not abuse its discretion in balancing the harms.
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Finally, the public interest must be considered. South Dakota argues that it
would be better served by allowing the Act to go into effect, "thereby protecting
women contemplating abortions, as well as their unborn children." Planned
Parenthood responds that the public interest is served by the legislature acting within
its constitutional limits.
The right to control one’s expressive communication is "at the core of the First
Amendment," Olmer v. City of Lincoln, 192 F.3d 1176, 1180 (8th Cir. 1999), and the
public interest is served by "free expression on issues of public concern" like abortion.
Kirkeby, 52 F.3d at 775. Accordingly, we have previously required or upheld
preliminary injunctive relief against laws which burdened the expressive rights of
those opposed to legal abortion who have sought to take their message to places where
legitimate concerns about public safety and privacy might otherwise have justified its
exclusion. Kirkeby, 52 F.3d at 776; see also Olmer, 192 F.3d at 1180 (First
Amendment right to picket churches). The need for First Amendment protection is
no less apparent with respect to abortion providers, and the 1993 law continues to
ensure that women considering abortion will receive much of the state's desired
disclosures. We conclude there was no abuse of discretion with respect to this final
Dataphase factor.
C.
South Dakota finally argues that the district court erred in enjoining all of the
new provisions in § 7 of the Act. It contends that the district court should have
enjoined only the challenged disclosures discussed in its opinion and that the
severability provision in § 11 should control. Planned Parenthood counters that the
district court properly complied with § 10 of the Act which provides that if provisions
of § 7 are enjoined, the prior informed consent law remains in effect in its entirety.
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Section 11 of the Act states that "if any court of law finds any provisions of
section 7 of this Act to be unconstitutional, the other provisions of section 7 are
severable." S.D.L. ch. 186, § 11. The precondition for severability has not been met
in this case, for no court has found any provision of the Act to be unconstitutional.
At this point only a temporary injunction has been put in place while the case is being
further developed in the district court before a ruling on the merits can issue. The
circumstances at this juncture are very different from those in Ayotte v. Planned
Parenthood of N. New England, 126 S. Ct. 961 (2006), where a statute was
permanently enjoined. Here South Dakota's general legislative policy on informed
consent in the form of its 1993 law remains in effect during the pendency of the
temporary injunction.
The present situation actually fits squarely under § 10 of the Act. Section 10
states that the prior informed consent law will remain in effect "if any court of law
enjoins, suspends, or delays the implementation of the provisions of section 7 of this
Act." Id. § 10. Section 10 contains no severability provision, and it was not for the
district court to imply one by picking and choosing which provisions of the Act
should be allowed to go into effect prior to a final judgment. See Café Erotica of
Florida, Inc. v. St. John’s County, 360 F.3d 1274, 1292 (11th Cir. 2004) (“The
interests of federalism and comity dictate conservatism to federal courts in imposing
their interpretive views on state statutes.”). The dissent's contention that § 10 is only
relevant if a court were to enjoin all of the provisions in § 7 is not persuasive. Its
argument rests on reading the word "all" into the text of the statute, a word which was
not used by the South Dakota legislature. We conclude that the district court gave
effect to § 10 by following its mandate to keep the 1993 statute effective until this
case is resolved.
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D.
We conclude for these reasons that the district court did not abuse its discretion,
and we thus affirm its temporary injunction.
GRUENDER, Circuit Judge, dissenting.
I would hold that the provisions of § 7 of the Act fall within the bounds of
constitutionality, as defined by Casey, for informed consent provisions in the abortion
context. Accordingly, I would hold that Planned Parenthood’s challenge to the Act
cannot succeed on the merits and that the preliminary injunction should be vacated in
its entirety. In any event, I would hold that only the unconstitutional provisions of the
Act, if any, should be enjoined. Therefore, I respectfully dissent.
In my view, the proper approach to this issue requires a provision-by-provision
analysis of each disclosure provision of § 7 of the Act. Under such an approach, most
of the Act easily passes constitutional muster under established precedent. The only
provision that the Court addresses in depth, § 7(1)(b), initially appears to present a
closer question, given its provocative use of the term “human being.” However, upon
examination of the disclosures actually required by § 7(1)(b), I would hold that the
district court also erred when it enjoined that subsection.
The first issue to be addressed is the proper scope of any preliminary injunction.
Next, I proceed to the legal standards for evaluating informed consent provisions in
the abortion context and, finally, to an evaluation of each provision of § 7 under those
standards.
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I. Proper Scope of an Injunction
The first question to be resolved is whether an injunction as to one of the
challenged provisions necessitates an injunction as to all of the Act’s provisions, even
those that are likely constitutional or were not even challenged by Planned
Parenthood. The district court enjoined the entire Act based upon its finding that
some provisions were potentially constitutionally infirm, and the Court affirms that
approach based on the language of § 10. However, I find that the plain language of
§ 10 does not support the Court’s reasoning. See Watson v. Ray, 192 F.3d 1153, 1155
(8th Cir. 1999) (“When determining the meaning of a statute, our starting point must
be the plain language of the statute.”).
The Act contains the following provisions regarding court action (emphases
added):
Section 10. If any court of law enjoins, suspends, or delays the
implementation of the provisions of section 7 of this Act, the provisions
of [the previous version of the statute] are effective during such
injunction, suspension, or delayed implementation.
Section 11. If any court of law finds any provisions of section 7 of this
Act to be unconstitutional, the other provisions of section 7 are
severable. If any court of law finds the provisions of section 7 of this
Act to be entirely or substantially unconstitutional, the provisions of [the
previous version of the statute] are immediately reeffective.
Although I agree with the Court that § 11 does not apply at this stage of the
proceedings, I note that its structure demonstrates a marked contrast with § 10.
Section 11 considers two potential actions: a court finding that “any provisions” of
§ 7 are unconstitutional, in which case the remaining provisions are preserved, and a
court finding that “the provisions” of § 7 are entirely unconstitutional, in which case
the former version of the statute is reinstated. On the other hand, § 10 considers only
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one potential action: a court finding that enjoins “the provisions” of § 7, in which case
the former version of the statute is reinstated.
Despite the legislature’s use in § 10 of only the plural with a definite article
(“the provisions”), the Court reads § 10 as though it says “any provision” and
therefore concludes that “[t]he present situation actually fits squarely under § 10 of
the Act.” Ante at 19. In my view, because § 10 contains only the all-inclusive phrase
“the provisions” instead of addressing “any provision,” the Court’s reading is
incorrect. Courts have recognized that the use of the plural is an integral part of a
statute’s construction. Thus, for example, we have previously concluded that the
phrase “civil rights” inherently refers to “a cluster of rights” rather than a single right.
United States v. Keeney, 241 F.3d 1040, 1044 (8th Cir. 2001). We are not alone in
our approach to this canon of statutory construction. See, e.g., Metro. Stevedore Co.
v. Rambo, 515 U.S. 291, 296 (1995) (“The use of ‘conditions,’ a word in the plural,
suggests that Congress did not intend to limit the bases for modifying awards to a
single condition . . . .”) (quoting 2A, Norman J. Singer, Sutherland on Statutory
Construction § 47.34 (5th ed. 1992) (“Ordinarily the legislature by use of a plural term
intends to reference more than one matter or thing . . . .”)).5
Because § 10 does not expressly address the steps to be taken if a court enjoins
fewer than all “the provisions” of § 10, I believe the Court makes a mistake in
reasoning that “it was not for the district court to imply [a severability provision] by
picking and choosing which provisions of the Act should be allowed to go into effect
prior to a final judgment.” Ante at 19. The Supreme Court recently held the opposite
in Ayotte v. Planned Parenthood of N. New England, 126 S. Ct. 961 (2006). In
5
Nor, in my view, would the former version of the statute be reinstated simply
because more than one, but not all, provisions of Section 7 were enjoined. If this were
the case, the legislature would have simply said, “If any court of law enjoins,
suspends, or delays the implementation of provisions of section 7” or “any provisions
of section 7,” rather than “the provisions of section 7” as actually stated.
-22-
Ayotte, the Supreme Court reviewed a district court’s decision (affirmed by the First
Circuit) to permanently enjoin an entire parental consent law because the law lacked
an exception that would allow a minor to receive an abortion without consent in the
case of a medical emergency. Id. at 965. Although the district court and First Circuit
enjoined the entire law, the Supreme Court vacated the judgment, holding “that
invalidating the statute entirely is not always necessary or justified, for lower courts
may be able to render narrower declaratory and injunctive relief.” Id. at 964.
The Supreme Court reasoned that “when confronting a constitutional flaw in
a statute, we try to limit the solution to the problem. We prefer, for example, to enjoin
only the unconstitutional applications of a statute while leaving other applications in
force, or to sever its problematic portions while leaving the remainder intact.” Id. at
967 (internal citations omitted). The legislature’s intent is at the crux of the test to be
applied. “After finding an application or portion of a statute unconstitutional, we must
next ask: Would the legislature have preferred what is left of its statute to no statute
at all?” Id. at 968. The Supreme Court resolved the issue presented in Ayotte by
remanding for a determination of whether the New Hampshire legislature would have
preferred that only the unconstitutional provisions be enjoined. The Supreme Court
clearly thought that such a remedy was possible, as “[o]nly a few applications of New
Hampshire’s parental notification statute would present a constitutional problem.” Id.
at 969.
-23-
As in Ayotte,6 there is no reason in the instant case for the district court to adopt
“the most blunt remedy” where the parties ask for “relief more finely drawn.” Id.
“Severability is of course a matter of state law.” Leavitt v. Jane L., 518 U.S. 137, 139
(1996) (per curiam). Under South Dakota law, constitutional portions of a statute are
severable at the preliminary injunction stage if (1) they can stand by themselves after
the unconstitutional clauses are struck, and (2) it appears the state legislature would
have intended the constitutional portions to take effect without the invalidated clauses.
Roberts v. Barnett, 582 N.W.2d 386, 394 (S.D. 1998). The party arguing against
severability has the burden of showing that the legislature would not have enacted the
statute without the severed portion. Id. In the instant case, if less than all of the
provisions of § 7 are found to necessitate an injunction, the record is clear that the
South Dakota legislature would prefer that only the unconstitutional provisions of §
7 be enjoined. Section 11, which establishes the severability of provisions not held
6
Although Ayotte dealt with a permanent injunction, I agree with the Sixth
Circuit that Ayotte’s logic is applicable in the context of preliminary injunctions. See
Planned Parenthood Cincinnati Region v. Taft, 444 F.3d 502, 516-17 (6th Cir. 2006)
(relying on Ayotte to vacate in part a preliminary injunction of an entire statute and
remanding to the district court to determine whether a narrower injunction would be
sufficient). A preliminary injunction in a case such as the instant one may be in place
for a period of years, and there is no reason to suppose that we should ignore Ayotte’s
aversion to the needless thwarting of a legislature’s work by an overly broad
injunction during that period just because the period has an (as yet unknown)
endpoint.
I also note that the case cited by the Court in enjoining the entire statute, Café
Erotica, does not stand for the proposition that a court should necessarily enjoin the
entirety of a statute on the basis of one suspect provision. The Eleventh Circuit
recognized in Café Erotica that “Florida law requires [a court] to sever any provisions
of the Ordinance that it finds unconstitutional, while allowing valid portions to stand,
but only if problematic provisions can be distinguished and clearly separated,” and
held that severance would not save the statutory scheme it was reviewing. 360 F.3d
at 1292 (internal quotation omitted).
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to be unconstitutional on the final merits, shows the legislature’s clear intent to
preserve the constitutional provisions of § 7 wherever possible.
The very nature of the Act reinforces this conclusion. The legislature clearly
believed that a patient’s decision to consent was not fully informed unless all the
information outlined in § 7 was provided to the patient. See § 7 (“A consent to an
abortion is not voluntary and informed, unless . . . the physician provides that pregnant
woman with the following information . . . .”). Thus, to conclude now that the State
would prefer each and every provision to be enjoined should any of them be enjoined,
one would have to find that the State preferred that none of the new information it
considers indispensable, even information for which the court has found no likely
constitutional infirmity, be given to the patient unless it all can be given. Nothing
indicates to me that this was the case. Therefore, the entire Act should not have been
enjoined based upon the Court’s conclusion that one provision was properly enjoined.
Ayotte, 126 S. Ct. at 968.7
7
I note that the instant case in particular exemplifies the perverseness of the all-
or-nothing approach to injunctions. Following oral argument in this matter, Planned
Parenthood decided to abandon several of their arguments for enjoining certain
provisions of the Act. See Planned Parenthood Minnesota, North Dakota, South
Dakota v. Rounds, No. 05-4077, 2006 WL 2092595, at *2 (D.S.D. July 26, 2006).
Specifically, Planned Parenthood sought “leave to amend their complaint to abandon
two specific causes of action,” including their argument that the provision of the Act
requiring the physician to provide a referral to a “pregnancy health center in the
reasonable proximity of the abortion facility” was unconstitutionally vague and their
argument that the provision requiring physicians to inform their patient of the risks of
“depression and related psychological distress” is unconstitutionally false and
misleading. Id. at *2-4 (“In short, plaintiffs move to amend their complaint to drop
their challenge to the constitutionality of section 7(2)(c);” “Plaintiffs now seek to
amend their complaint to withdraw their argument that section 7(1)(e)(i)’s mandatory
disclosure of ‘[d]epression and related psychological distress’ as a risk associated with
abortion is unconstitutional.”).
-25-
Having determined that only those individual provisions of the Act that merit
a preliminary injunction, if any, should be enjoined, I now proceed to examine each
disclosure provision of the Act.
II. Applicable Law for Evaluating the Likelihood of Success on the Merits
This appeal presents two distinct constitutional issues: (i) whether the Act’s
informed consent provisions constitute an undue burden upon the patients’ substantive
due process rights to obtain an abortion; and (ii) whether requiring physicians to
obtain their patients’ informed consent in the manner legislated by the Act violates the
physicians’ First Amendment right not to speak. Much of the law relevant to
physicians’ First Amendment rights in the context of informed consent to abortions
is embedded within explanations of the undue burden standard in Casey. I begin by
extracting the governing law, relying for the most part on Casey, and then proceed to
apply that law to each provision of § 7.
A. The Undue Burden Standard
The well-known undue burden standard was enunciated by a three-justice joint
opinion of the Supreme Court in Casey.8 A statute or regulation is an undue burden
In other words, here, Planned Parenthood itself no longer contends that two key
provisions of the Act are unconstitutional. Yet, under the Court’s holding today,
patients in South Dakota will not receive the information that those provisions
required to be disclosed so long as trial of the entire matter is pending before the
district court. This approach certainly does not serve the ends of “comity” as they are
described by the Court. See ante at 19.
8
We have adopted the standards enunciated by the Casey joint opinion as
controlling precedent in abortion cases. Miller, 63 F.3d at 1456 n.7 (recognizing the
joint opinion “as the Supreme Court’s definitive statement of the constitutional law
on abortion”); see also Stenberg, 530 U.S. at 930 (2000) (applying, in a majority
opinion, the undue burden standard from the Casey joint opinion).
-26-
if it “has the purpose or effect of placing a substantial obstacle in the path of a woman
seeking an abortion of a nonviable fetus.” Casey, 505 U.S. at 877. Under this
standard, not every burden upon a woman’s exercise of her right to an abortion is an
undue one. “The fact that a law which serves a valid purpose, one not designed to
strike at the right itself, has the incidental effect of making it more difficult or more
expensive to procure an abortion cannot be enough to invalidate it.” Id. at 874. Stated
another way, “not every law which makes a right more difficult to exercise is, ipso
facto, an infringement of that right.” Id. at 873. Instead, laws imposing undue
burdens are those that in some “real sense deprived women of the ultimate decision.”
Id. at 875. And “under the undue burden standard a State is permitted to enact
persuasive measures which favor childbirth over abortion, even if those measures do
not further a health interest.” Id. at 886. In the context of informed consent, “[i]f the
information the State requires to be made available to the woman is truthful and not
misleading, the requirement may be permissible.” Id. at 882.
Several cases illustrate the boundaries of the undue burden standard. In
Stenberg, 530 U.S. at 930, the Supreme Court held unconstitutional a statute banning
partial-birth abortions. First, the Court held that the statute was unconstitutional
because of the absence of an exception for the preservation of the health of the
mother, a requirement independent from the undue burden standard. Id. In addition,
the Court held that the statute’s broad language criminalized “the most commonly
used method for performing previability second trimester abortions. All those who
perform abortion procedures using that method must fear prosecution, conviction, and
imprisonment. The result is an undue burden upon a woman’s right to make an
abortion decision.” Id. at 945-46. In Casey itself, a 24-hour waiting period was held
not to be an undue burden, even though “the waiting period has the effect of
increasing the cost and risk of delay of abortions.” 505 U.S. at 886 (internal quotation
omitted). However, a spousal notification provision created an undue burden because
it was “likely to prevent a significant number of women [who fear for their safety and
the safety of their children] from obtaining an abortion. It does not merely make
-27-
abortions a little more difficult or expensive to obtain; for many women, it will impose
a substantial obstacle.” Id. at 893-94. In Miller, we found a parental-notification
provision without an adequate bypass procedure created an undue burden because it
would operate to prevent abortions even for mature minors or for minors who could
demonstrate that an abortion was in their best interests, 63 F.3d at 1458, and even for
some abused minors, id. at 1463.
From cases such as these, it is clear that a statute does not constitute an undue
burden unless it in a “real sense deprive[s] women of the ultimate decision.” Casey,
505 U.S. at 875. Planned Parenthood has cited no case where a provision merely
requiring the disclosure of information prior to the procedure has been invalidated as
an undue burden.
B. Free Speech Rights of Physicians
The law governing compelled speech by physicians is relatively undeveloped.
Nevertheless, four relevant principles can be derived from the case law, especially
from Casey in the context of informed consent to abortion, and those principles should
guide our analysis of the Act. First, as the Court noted, citizens have a right not to be
compelled to speak under many circumstances. Ante at 7 (citing Wooley, 430 U.S.
at 714).
Second, physicians enjoy a diminished right not to be compelled to speak in the
context of practicing medicine, as that practice is subject to state licensing and
regulation.
Thus, a requirement that a doctor give a woman certain information as
part of obtaining her consent to an abortion is, for constitutional
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purposes, no different from a requirement that a doctor give certain
specific information about any medical procedure.
All that is left of petitioners’ argument is an asserted First
Amendment right of a physician not to provide information about the
risks of abortion, and childbirth, in a manner mandated by the State. To
be sure, the physician’s First Amendment rights not to speak are
implicated, but only as part of the practice of medicine, subject to
reasonable licensing and regulation by the State.
Casey, 505 U.S. at 884 (internal citations omitted) (emphasis added). Thus, the State
may require the physician to provide information the State deems necessary for
informed consent to a medical procedure. The outer bounds of this relationship are
not expressly defined. At a maximum, it may be that the State can direct the physician
to provide any disclosure that is otherwise permissible under the undue burden
standard. At a minimum, the State can, at the least, direct physicians to provide the
type of information contained in the informed consent statute deemed acceptable in
Casey.
Third, the State is permitted to voice its preference for childbirth, even before
the fetus is independently viable. Casey, 505 U.S. at 846 (noting that one of Roe’s
“essential holding[s]” was that “the State has legitimate interests from the outset of
the pregnancy in protecting the health of the woman and the life of the fetus that may
become a child”); see also id. at 869 (“The woman’s liberty is not so unlimited . . . that
from the outset the State cannot show its concern for the life of the unborn, and at a
later point in fetal development the State’s interest in life has sufficient force so that
the right of the woman to terminate the pregnancy can be restricted.”); id. at 870 (“the
State has a legitimate interest in promoting the life or potential life of the unborn”).
-29-
This substantial state interest allows the state to inform its citizens about the
“philosophic and social arguments” against abortion. As Casey held in the course of
addressing Pennsylvania’s informed consent law:
Though the woman has a right to choose to terminate or continue her
pregnancy before viability, it does not at all follow that the State is
prohibited from taking steps to ensure that this choice is thoughtful and
informed. Even in the earliest stages of pregnancy, the State may enact
rules and regulations designed to encourage her to know that there are
philosophic and social arguments of great weight that can be brought to
bear in favor of continuing the pregnancy to full term and that there are
procedures and institutions to allow adoption of unwanted children as
well as a certain degree of state assistance if the mother chooses to raise
the child herself. The Constitution does not forbid a State or city,
pursuant to democratic processes, from expressing a preference for
normal childbirth.
505 U.S. at 872 (internal quotation omitted) (emphases added).
Not only did Casey emphasize in broad terms the State’s right to voice its
views, it also noted limitations on the patient’s right not to listen. Thus, “[w]hat [was]
at stake [in Casey was] the woman’s right to make the ultimate decision, not a right
to be insulated from all others in doing so.” Id. at 877. As such, “[r]egulations which
do no more than create a structural mechanism by which the State . . . may express
profound respect for the life of the unborn are permitted, if they are not a substantial
obstacle to the woman’s exercise of the right to choose.” Id. Ultimately, “a state
measure designed to persuade her to choose childbirth over abortion will be upheld
if reasonably related to that goal.” Id. at 878.
Fourth, in furtherance of its interest in childbirth, the State can require the
physician to provide even non-medical information as part of obtaining a patient’s
informed consent. In Casey, the Court approved a statute whereby the State required
the physician to inform the patient that the father of her child would be liable for child
-30-
support and that other agencies and organizations would help the patient should she
want an alternative to abortion. 505 U.S. at 881, 902-03. “In short, requiring that the
woman be informed of . . . the assistance available should she decide to carry the
pregnancy to full term is a reasonable measure to ensure an informed choice, one
which might cause the woman to choose childbirth over abortion.” Id. at 883.
III. Application of Casey’s Principles to the Disclosure Provisions of the Act
I begin by applying the principles set forth above to the provisions of the Act
that were enjoined without extensive analysis by the district court. These include
§ 7(1)(e) (the “medical advice provisions”) and § 7(1)(c), (d) (the “legal advice
provisions”). I then review § 7(1)(b), which was the primary focus of both the district
court’s order and the Court’s opinion today.
A. The Medical Advice Provisions
Among the subsections enjoined by the district court are several provisions
requiring the physician to provide certain medical advice. The information that must
be provided includes a “description of all known medical risks of the procedure and
statistically significant risk factors to which the pregnant woman would be subjected.”
§ 7(1)(e). Among the risks delineated by the state legislature, the physician
must provide the patient with information concerning “[d]epression and related
psychological distress,” “[i]ncreased risk of suicide ideation and suicide,” “an accurate
rate of deaths due to abortions, including all deaths in which the abortion procedure
was a substantial contributing factor,” and “[a]ll other known medical risks to the
physical health of the woman, including the risk of infection, hemorrhage, danger to
subsequent pregnancies, and infertility.” § 7(1)(e)(i)-(iv). The physician must also
disclose the “probable gestational age of the unborn child at the time the abortion is
to be performed, and a scientifically accurate statement describing the development
-31-
of the unborn child at that age; and . . . [t]he statistically significant medical risks
associated with carrying her child to term compared to undergoing an induced
abortion.” § 7(1)(f), (g).9
A state’s right to require a physician to deliver the type of medical information
outlined above is clearly established. See, e.g., Casey, 505 U.S. at 881-82. Casey
expressly found that the mental health effects of abortion are a substantial and valid
consideration in the context of abortion. Id. at 882 (“It cannot be questioned that
psychological well-being is a facet of health.”). There is no reason why informing a
woman of the potential mental side-effects of abortion is not the proper subject for an
informed consent dialogue. The same is true of the risk of death, infection,
hemorrhage and subsequent infertility. And Casey itself approved the requirement
that the gestational age be given to the patient. Id. at 881. I would conclude,
therefore, that the medical advice provisions are permissible as a matter of law under
well-established precedent and should not be enjoined.
B. The Legal Advice Provisions
The Act requires a physician to inform his or her patient that there are legal
protections associated with her relationship with her unborn child and that terminating
the pregnancy will terminate those protections. See ante at 3-4 (reproducing § 7
(1)(c), (d)). As outlined above, the State is empowered to require the provision of
legal information, as well as medical information, that might be relevant to a woman’s
decision concerning whether or not to deliver her child. There is no doubt that the
relationship between a mother and her unborn child is a legally protected one. “Our
law affords constitutional protection to personal decisions relating to marriage,
procreation, contraception, family relationships, child rearing, and education.” Casey,
9
We have already upheld the constitutionality of some of these provisions in the
1993 version of the statute. See Miller, 63 F.3d at 1467.
-32-
505 U.S. at 851 (citing Carey v. Population Servs. Int’l, 431 U.S. 678, 685 (1977)).
The right to carry a child to term under most circumstances is undisputed. See Casey,
505 U.S. at 859 (noting that Roe equally stands for the proposition that a State cannot
“readily restrict a woman’s right to choose to carry a pregnancy to term as to terminate
it, to further asserted state interests in population control, or eugenics, for example”).
The Act’s requirement that the physician tell the patient in general terms about
the existence of legal protections associated with the relationship she enjoys with her
unborn child is no less relevant to informed consent than the requirement, upheld in
Casey, that a physician inform his patient that she could obtain financial assistance
from the child’s father. Id. at 881. Information about the right to financial support
from the father would mean little without knowledge of the right to carry the child to
term, perhaps in the face of a father who is pressuring the patient to have the abortion.
As such, I would conclude that the legal advice provisions are permissible under
Casey and should not be enjoined.
C. Section 7(1)(b)
Section 7(1)(b) requires a disclosure “[t]hat the abortion will terminate the life
of a whole, separate, unique, living human being.” In turn, § 8(4) of the Act defines
“human being” as “an individual living member of the species Homo sapiens,
including the unborn human being . . . .” The district court found § 7(1)(b) violated
physicians’ First Amendment rights because it “requires abortion doctors to enunciate
the State’s viewpoint on an unsettled medical, philosophical, theological, and
scientific issue, that is, whether a fetus is a human being.” Planned Parenthood
Minnesota, North Dakota, South Dakota v. Rounds, 375 F. Supp. 2d 881, 887 (D.S.D.
2005).
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The Court essentially agrees with the district court’s analysis. Even though the
Act defines “human being” as a “member of the species Homo sapiens,” including at
the fetal or embryonic stage, the Court finds this statutory definition irrelevant
because most patients, upon encountering the phrase “human being,”are likely to
construe it in the broad, general sense of “person.” Ante at 9. Having determined that
the legislated definition is irrelevant, the Court then upholds the district court’s
preliminary determination that the statement required by § 7(1)(b) is ideological in
nature, rather than objectively medical or scientific. Ante at 9-10. The Court supports
this conclusion by reference to the legislative fact, established in Roe and approved
in later cases, that a fetus is not a “person” and that there is no medical, scientific or
moral consensus as to when life begins. Ante at 10-11. Finally, the Court reasons
that, because the required disclosure is ideological, it violates the physicians’ right not
to speak, regardless of the physicians’ right to disassociate from the message
delivered. Ante at 12-13.
In my view, the Court perpetuates an error in the district court’s essential
premise. The Court’s reasoning turns upon the premise that the language of § 7 of the
Act establishes a script for the required disclosure that includes the term “human
being,” unaccompanied by the limiting definition in § 8. Based upon this premise, the
Court concludes that the disclosure will be interpreted to state that the abortion will
terminate the life of a “person.” Ante at 9. In other words, although the provision is
not inherently ideological if the statutory definition of “human being” is substituted,
the Court finds that it is likely to be interpreted as ideological in practice. Ante at 9.
However, the Act contains no indication that a physician must provide a written script
of the exact words of § 7 to the patient. Section 7 bears no quotation marks to identify
mandatory language. Rather than providing a scripted disclosure statement, § 7
merely directs the physician to categories of information that must be conveyed.
Thus, the physician must give, inter alia, his or her name in writing, §7(1)(a), a
statement that the woman enjoys a legally protected relationship that will be
terminated if she receives an abortion, § 7(1)(c), (d), and a “description of all known
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medical risks of the procedure,” “including” certain subcategories, § 7(1)(e). This last
provision illustrates well that § 7 is not meant to establish a script, as the provision
itself does not purport to contain an exhaustive list of the risks to be described to the
patient.
If the language in § 7(1)(b) is not a script, which it surely is not, then there is
no justification for ignoring the legislature’s definitions for the terms used in the Act.
See, e.g., S. D. Warren Co. v. Maine Bd. of Envtl. Prot., 126 S. Ct. 1843, 1847 (2006)
(resorting to a term’s “ordinary or natural meaning” because “it is neither defined in
the statute nor a term of art”); FDIC v. Meyer, 510 U.S. 471, 476 (1994) (“In the
absence of such a [statutory] definition, we construe a statutory term in accordance
with its ordinary or natural meaning.”) (emphasis added). While it is true that the Act
requires the physician to tell the patient that she will be terminating the life of a
“human being,” the definition makes clear that this means only that the physician must
inform the patient that she is terminating a “living member of the species of Homo
sapiens” in the embryonic or fetal stage. § 8(4). Precisely the same disclosure would
be required if, instead of “human being,” § 7(1)(b) required the physician to tell the
patient that she would be terminating a “member of the class defined in § 8(4).” Just
as there would be no need to resort to the dictionary definition of the word “member”
to interpret the disclosure required in that case, there is no need to resort to the
dictionary definition of “human being” to interpret the Act as written.10
10
The Court’s interpretation of the Act also creates a constitutional issue where
none need be found. Even if the Act could be read to require a recitation of the exact
language of § 7(1)(b), including the term “human being” with no limiting definition,
the reading presented here is at least equally permissible. Because the reading
presented here avoids any constitutional doubts, it is to be preferred. See, e.g., Gomez
v. United States, 490 U.S. 858, 864 (1989) (“It is our settled policy to avoid an
interpretation of a federal statute that engenders constitutional issues if a reasonable
alternative interpretation poses no constitutional question.”); see also United States
v. X-Citement Video, Inc., 513 U.S. 64, 69 (1994) (the Court presumes “that a statute
is to be construed where fairly possible so as to avoid substantial constitutional
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There is no doubt that certain terms take on freighted meanings in the abortion
context, and there is every indication that the South Dakota legislature structured
§ 7(1)(b) with the term “human being” to broadcast to its constituents its strong
preference for childbirth over abortion. However, the decision to embed the narrower,
less controversial intended meaning of the term in the “Definitions” section should not
cloud our analysis of the disclosures actually required for compliance with the Act.
In the most practical terms, having reviewed the Act, I find no legitimate reading of
it that would allow the State to prosecute a physician who failed to use the term
“human being” in the required disclosures, or who used the term “human being” but
told the patient that the term had only the limited meaning of a “living member of the
species of Homo sapiens, including [an] unborn human being.”
Accordingly, the proper inquiry for the Court is whether a disclosure that the
abortion will terminate the life of a whole, separate, unique, living unborn member of
the species of Homo sapiens is truthful, non-misleading and not impermissibly
ideological.11 I find no evidence in the record to suggest otherwise. The declarations
questions”).
11
Regarding the proper test for “impermissible” ideological content, I am not
convinced that the State is prohibited from distributing, through the channel of the
physician, any ideological view whatsoever. The Court notes that Casey “did not need
to confront Justice O’Connor’s concern in City of Akron . . . that ‘informed consent
provisions may . . . violate the First Amendment rights of the physician if the State
requires him or her to communicate its ideology,’” ante at 8-9 (quoting City of Akron,
462 U.S. at 472 n.16 (O’Connor, J., dissenting)), but the decision of the Casey
plurality not to expressly address a single footnote in a previous dissent on the same
topic does not convert that dissent into the controlling precedent on “ideology” in the
informed consent context. Although the Court distinguishes the Act from the statute
at issue in Casey as one that requires physicians “to deliver ideological messages
themselves,” ante at 8, the provisions at issue only require physicians to provide a
written statement containing information mandated by the State and certify to the best
of their ability that the patient understands the State’s information. It is important to
remember that nothing in the Act requires the physician to represent to the patient,
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from Planned Parenthood’s witnesses, cited by the Court ante at 9-10, were premised
on the broadest general meaning of “human being,” rather than the statutory
definition. Likewise, while a recitation conveying the idea that an unborn child is a
whole, separate, unique, living “human being” in the general or colloquial sense might
conflict with legislative facts originating in Roe regarding legal personhood and the
question of when life begins, this concern is not implicated where the terms “whole,
separate, unique, living” are used to characterize an unborn member of the species
Homo sapiens. Therefore, the Court’s reliance on legislative factfinding to find a
likelihood of success on the merits, ante at 10-11, is misplaced.
In essence, the statement that an abortion terminates a whole, separate, unique,
living unborn member of the species Homo sapiens is nothing but an unremarkable
tautology. It is simply a restatement of the definition of “abortion.” “Abortion” is
defined as “the termination of a pregnancy after, accompanied by, resulting in, or
closely followed by the death of the embryo or fetus.” Merriam-Webster’s Collegiate
either affirmatively or through silence, that the written statement expresses the
physician’s personal or professional views.
Casey makes clear that the State may require the physician to serve as a channel
for the State’s information to some extent in the informed consent context, even for
information that is non-medical. 505 U.S. at 881. Casey also holds that “the State
may enact rules and regulations designed to encourage [the patient seeking an
abortion] to know that there are philosophic and social arguments of great weight that
can be brought to bear in favor of continuing the pregnancy to full term.” 505 U.S.
at 872 (emphasis added). Neither Casey nor any subsequent Supreme Court decision
sets an express limit on the State’s ability to require physicians to distribute
information relevant to informed consent where such permissible “philosophic and
social arguments” are included. It is difficult to conceive of any “philosophic and
social arguments” the State could make that would not be expressive of the State’s
ideology. It is not necessary today to resolve what degree of ideology is
impermissible, however, because the disclosure required by § 7(1)(b), with the
legislated limited definition of “human being” incorporated, is not an ideological
statement.
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Dictionary (11th ed.). No one contends that the embryo or fetus is a member of any
species other than Homo sapiens, and it is difficult to imagine the “death” of an entity
that was not whole, separate, unique and living in some sense beforehand. Casey
itself speaks in terms of “the life or potential life of the unborn.” 505 U.S. at 870
(emphases added). Consequently, the disclosure required by § 7(1)(b) is truthful, non-
misleading and non-ideological on its face and, therefore, does not violate Casey’s
standards for compelled speech by a physician in the context of disclosure
requirements for informed consent to an abortion.12
12
The Court distinguishes the Act from the statute at issue in Casey on the basis
that the Act provides less leeway for a physician to choose not to obtain informed
consent for medical reasons. Ante at 13-14. The Court is concerned that the Act
requires the physician to obtain informed consent unless it is impossible due to a
medical emergency. However, the 1993 version of the South Dakota informed
consent statute likewise has only a medical emergency exception, rather than a
broader exception like the statute at issue in Casey. In Miller, we considered and
rejected the argument that the medical emergency-only exception rendered the 1993
version of the statute constitutionally infirm:
The only exception to the mandatory-information provision [S.D.C.L. §
34-23A-10.1 (1993)] is for a medical emergency.
South Dakota’s provision is substantially similar to provisions upheld by
the Supreme Court in Casey and by this Court in Fargo Women’s Health
Organization v. Schafer. The Pennsylvania provision approved of in
Casey provided two exceptions not found here: the information on the
father’s liability for child support could be omitted for rape victims, and
other information could be omitted if the physician reasonably believed
that providing the information could severely hurt the patient’s physical
or mental health. Planned Parenthood contends that the lack of such
exceptions in the South Dakota law makes it unconstitutional on its face.
We decided this issue in Fargo Women’s Health Organization v. Schafer,
where we upheld a North Dakota law similar to the one at issue here.
The North Dakota law also lacked the particular exceptions provided by
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The Court also holds that the Act constitutes an undue burden upon a patient’s
right to obtain an abortion because “[f]orcing [the patient] not only to read, but to sign
each page of statement containing the state’s moral and philosophical objections to the
procedure she has planned and intends to undergo, and forcing her doctor to certify
that she ‘understands’ these objections, does little to promote independent decision
making and may actually exacerbate any adverse psychological consequences of the
procedure.” Ante at 15. However, as discussed above, the disclosures actually
required by the Act do not include the State’s “moral and philosophical objections.”
In addition, requiring a patient to sign or initial a form stating that she understands the
information conveyed is common to most situations in which a patient must give
informed consent to medical treatment. See, e.g., S.D.C.L. §§ 27A-8-15 (stating, in
the context of admittance for voluntary treatment at a psychiatric health facility, that
“[a]n informed consent as defined in § 27A-1-1(8) shall be obtained orally and in
writing upon an application form which shall contain in bold print and simple
language the substance of [the applicable law].”); 27A-1-1(9) (defining informed
consent as “consent voluntarily, knowingly, and competently given . . . after
conscientious explanation of all information that a reasonable person would consider
significant to the decision in a manner reasonably comprehensible to general lay
understanding”).13
Pennsylvania, but we held that North Dakota’s medical-emergency
exception allowed it to pass constitutional muster. Because South
Dakota’s mandatory-information provision and medical-emergency
exception are virtually identical to those we upheld in Schafer, Planned
Parenthood’s argument that they are unconstitutional must fail.
Miller, 63 F.3d at 1467 (citations omitted).
13
The district court found that the Act’s requirement that the physician certify,
“to the best of his ability,” that the patient “understands” the information provided, §
7(2)(d), could be read to criminalize any attempt by the physician to disassociate from
the disclosure required by the State. The district court appeared to interpret the term
“understands” as requiring physicians to bring about the patient’s agreement with,
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Finally, the Court’s holding that the required disclosure poses an undue burden
because it “may actually exacerbate any adverse psychological consequences of the
procedure,” ante at 15, creates a catch-22 that would undermine informed consent in
general. The very purpose of informed consent is to ensure that a patient understands
rather than understanding of, the information required by the State. This definition
of “understands” is foreign to the law of informed consent. For example, if this
standard applied to informed consent to receive an experimental medicine that might
cause an increased risk of bleeding, a physician would need to certify, to the best of
his or her ability, that the patient understands what is meant by the phrase “increased
risk of bleeding.” The physician would not, on the other hand, need to certify that the
patient actually agrees with the stated risk level—something about which patients are
entitled to form their own judgments. In short, the goal of the certification appears to
be simply to ensure that the patient reads and “grasp[s] the meaning of” the
information provided, rather than to ensure that the patient adopts those views as her
own. See Merriam-Webster’s Collegiate Dictionary (11th ed.) (defining
“understand”).
The district court was also troubled by the absence of an express provision
allowing physicians to disassociate themselves from the State’s required disclosures.
We have found that express provisions allowing disassociation are relevant to our
evaluation of informed-consent provisions. Schafer, 18 F.3d at 534. I note, however,
that despite the absence of an express affirmative disassociation provision, nothing in
the Act suggests that it is a criminal act for the physician to comment on the State’s
information or to provide additional information of his or her own choosing. It is
therefore unclear where the Court finds “statutory ambiguity” on this point. See ante
at 12. To read a criminal statute to criminalize an action because that action is not
expressly stated to be legal would be to turn criminal law on its head. Any particular
act—such as disassociating oneself from a written statement one is required by the
State to provide—is innocent conduct unless it is expressly criminalized by an
applicable statute. For example, the Act also fails to expressly allow the physician to
talk about the gender of the fetus. Is it therefore ambiguous whether the Act
criminalizes that speech? I think not. In short, I suspect that if the Act dealt with
informed consent for any other medical procedure, any claim that the Act’s failure to
mention disassociation rendered it “ambiguous” on the subject would be deemed
frivolous.
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the long-term consequences of her actions. It often may be true that those disclosures
increase anxiety at the same time that they increase the patient’s understanding of the
risks and consequences of her actions, but the purpose of informed consent is to
ensure that the patient know these things before, not after, she chooses to have a
procedure. Thus, in Casey, the Court reasoned that “[m]easures aimed at ensuring that
a woman’s choice contemplates the consequences for the fetus do not necessarily
interfere with the right recognized in Roe.” 505 U.S. at 873. Surely, information
about “consequences for the fetus” increases the angst felt by a patient who is making
a decision to terminate her pregnancy. Yet, under Casey, the State is allowed to
present information that does just that, “reducing the risk that a woman may elect an
abortion, only to discover later, with devastating psychological consequences, that her
decision was not fully informed.” Id. at 882.
In summary, I would find that, on its face, the Act does not create an undue
burden or violate physicians’ First Amendment right not to speak. See Thornburgh
v. Am. College of Obstetricians & Gynecologists, 476 U.S. 747, 757 (1986) (holding
that it is permissible in some instances for appellate courts to rule on the merits of
constitutional issues despite the fact that the appeal is from a preliminary injunction),
overruled on other grounds by Casey, 505 U.S. at 882. The Act requires the physician
to provide, and to certify to the best of his or her ability that the patient reads and
grasps the meaning of, medical and legal information that is for the most part
substantially identical to that which has been approved in previous cases. See, e.g.,
Schafer, 18 F.3d at 531. The novel required disclosures in § 7, a statement that the
patient enjoys a relationship with the unborn child that is legally protected and a
statement that abortion terminates the life of an unborn member of the species Homo
sapiens, are likewise truthful and non-misleading, Casey, 505 U.S. at 882, and are
“reasonable measure[s] to ensure an informed choice . . . which might cause the
woman to choose childbirth over abortion,” id. at 883. The physician must provide
this information only as “part of the practice of medicine, subject to reasonable
licensing and regulation by the State,” id. at 884, and these requirements do not
“plac[e] a substantial obstacle in the path of a woman seeking an abortion,” id. at 877.
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IV. Conclusion
Rather than apply an all-or-nothing approach to enjoining the Act, I would
examine each provision to determine whether an injunction is merited on a provision-
by-provision basis. Having examined each provision, I would find as a matter of law
that the provisions in question do not violate physicians’ First Amendment rights and
do not impose an undue burden on patients’ rights to an abortion, without need for
further development of the facts. As such, I would hold that the plaintiffs have no
chance of prevailing on the merits of these issues, thereby obviating any need to
examine the relative harms imposed by any temporary injunctive relief, and I would
vacate the district court’s judgment and dissolve the preliminary injunction.
_________________________
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