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Planned Parenthood Minnesota, North Dakota v. Rounds

August 20, 2009

PLANNED PARENTHOOD MINNESOTA, NORTH DAKOTA, SOUTH DAKOTA, AND CAROL E. BALL, M.D., PLAINTIFFS,
v.
MIKE ROUNDS, GOVERNOR, AND LARRY LONG, ATTORNEY GENERAL, IN THEIR OFFICIAL CAPACITIES, DEFENDANTS,
ALPHA CENTER, BLACK HILLS CRISIS PREGNANCY CENTER, D/B/A CARE NET, DR. GLENN RIDDER, M.D., AND ELEANOR D. LARSEN, M.A., L.S.W.A., INTERVENORS.



The opinion of the court was delivered by: Karen E. Schreier Chief Judge

ORDER

Plaintiffs move the court to strike or disregard specific paragraphs in intervenors' amended Rule 56.1 statement of material facts as to which there is no genuine issue to be tried (intervenors' amended Rule 56.1 statement). This court previously granted a similar motion of plaintiffs and directed intervenors to revise and refile their Rule 56.1 statement of undisputed material facts. See Docket 295. Intervenors oppose the motion. The motion is granted in part and denied in part. I. Relevance of Certain Statements

Plaintiffs argue that there are at least nine paragraphs that consist of material not cited in intervenors' brief and therefore these statements are immaterial to intervenors' motion. Plaintiffs contend that as a result, the court should strike these paragraphs from intervenors' amended Rule 56.1 statement. Intervenors respond that these nine paragraphs are relevant and that they rely upon these paragraphs to make their arguments.

A. Paragraph 83

Paragraph 83 of intervenors' amended Rule 56.1 statement states: "Planned Parenthood provides no services that help a woman keep her relationship with her child, they only involve themselves in terminating that relationship." Docket 296 at 32. In their response, plaintiffs objected to the use of the term "relationship" as vague and undefined and also argued that it was immaterial to intervenors' motion. Docket 302 at 68. Plaintiffs further responded by explaining the types of services Planned Parenthood provides for patients. Docket 302 at 18-19.

After reviewing intervenors' brief in support of their motion for partial summary judgment, the court finds that intervenors did not cite paragraph 83 in support of any of their arguments. See Docket 308. In their amended Rule 56.1 statement, intervenors indicate that this statement supports the contention that a pregnant mother has an existing relationship with her unborn child/fetus/embryo in which she has a personal interest. Docket 296 at 31-32. But paragraph 83 does not support this contention. It merely assumes a relationship between a woman and an embryo or fetus and does not explain why a woman does in fact have a relationship with an embryo or fetus. As such, the court finds that paragraph 83 is not relevant to intervenors' motion and is hereby stricken from their amended Rule 56.1 statement.

B. Paragraph 85

Paragraph 85 of intervenors' amended Rule 56.1 statement states: "The human embryos and human fetuses that are aborted at the Planned Parenthood facility in Sioux Falls range in age from a minimum of three weeks post-conception to a maximum of six weeks post-conception for medical abortions, and a minimum of four weeks post-conception to a maximum of eleven weeks and six days post-conception for surgical abortions." Docket 296 at 33-34. In their response, plaintiffs point out that this statement is not cited in intervenors' motion for partial summary judgment. Docket 302 at 69.

After reviewing intervenors' brief in support of their motion for partial summary judgment, the court also finds that intervenors did not cite paragraph 85 in support of any their arguments. See Docket 308. In their amended Rule 56.1 statement, intervenors indicate that this statement supports the contention that the embryo or fetus aborted by Planned Parenthood is a member of the species Homo sapiens as a matter of scientific fact. Docket 296 at 33-34. But the actual stage of growth of the embryos and fetuses is not material to the disposition of this case. In fact, the statute at issue defines "human being" as "an individual living member of the species of Homo sapiens, including the unborn human being during the entire embryonic and fetal ages from fertilization to full gestation." SDCL 34-23A-1(4). Because the statutory definition provides that the human embryos and human fetuses discussed by intervenors in paragraph 85 are members of the Homo sapiens species, and the court must determine the constitutionality of the statute as written, these facts are not relevant to its decision. Therefore, paragraph 85 is stricken from intervenors' amended Rule 56.1 statement.

C. Paragraph 86

Paragraph 86 of intervenors' amended Rule 56.1 statement states: "Planned Parenthood admits that they have never done an emergency abortion at its Sioux Falls facility and they have never done an abortion because of a serious risk to the health of the pregnant mother." Docket 296 at 34. In their response, plaintiffs contend that this statement is not relevant to intervenors' motion for partial summary judgment. Docket 302 at 70.

After reviewing intervenors' brief in support of their motion for partial summary judgment, the court finds that intervenors did not cite paragraph 86 in support of any of their arguments. See Docket 308. In their amended Rule 56.1 statement, intervenors, again, indicate that this statement supports the contention that the embryo or fetus aborted by Planned Parenthood is a member of the species Homo sapiens as matter of scientific fact. Docket 296 at 33-34. Whether Planned Parenthood performs emergency abortions or abortions based upon the mother's health is not relevant to whether an embryo or fetus is a member of the Homo sapiens species. Further, as discussed above, the issue before the court based upon the parties' motions for summary judgment is the constitutionality of the statute as written.

Because the statute indicates that human embryos and fetuses fall within the scope of the Homo sapiens species, paragraph 86 is not relevant and should be stricken from intervenors' amended Rule 56.1 statement.

D. Paragraphs 106-110, Paragraph 112 Paragraphs

106-110 and paragraph 112 of intervenors' amended Rule 56.1 statement all relate to the opinions of plaintiffs' doctors and experts. More specifically, paragraph 106 of intervenors' amended Rule 56.1 statement states: "Planned Parenthood's Dr. Van Oppen's 'opinion' that in his personal view one isn't a 'human being' until the child is 'weaned' from his or her mother, often at about the post-natal age of two years, but only if the child's parents consider him or her a human being and welcome the child into the family of human beings is non-scientific subjective philosophy." Docket 296 at 48. Paragraph 107 states: "Planned Parenthood physician Dr. Peter D'Ascoli's 'opinion,' that in his view an infant is a human being only if the parents want the child, consider it a human being, and welcome it into the community, is non-scientific subjective philosophy." Docket 296 at 48-49. Paragraph 108 states: "Plaintiff, Dr. Carol Ball, opines that because it cannot be said at what point in the life of a human organism that he or she can be referred to as a human being, she disagrees that the court reporter who transcribed her deposition testimony is a human being as a matter of biological fact; she disagrees that a child is a human being as a matter of biological fact one year after live birth; and she disagrees that there is a human being as a matter of biological fact following the live birth of the unborn child." Docket 296 at 49. Paragraph 109 states: "Planned Parenthood doctor, Miriam McCreary states that she 'believes the life of a human being occurs when the infant is born into the world,' is a non-scientific philosophical statement. Docket 296 at 49. Paragraph 110 states: "Plaintiffs' expert Dr. Scott Moses' 'opinion,' that after he delivers a child, the child is not a human being while the baby is entirely out of the mother's body and he is holding the baby and even during the time the mother is holding her baby, because he claims the 'status' as human being 'transfers' when he clamps the cord, but before he cuts the cord, is a non-scientific statement of subjective philosophy." Docket 296 at 49. Finally, paragraph 112 states: "Plaintiffs' expert, Dr. Lee Silver, although offered as an expert to explain the meaning of terms and the term 'human being,' admitted that he's 'not sure how to define any word.' " Docket 296 at 50. In their response, plaintiffs assert that these statements are not relevant to intervenors' motion. Docket 302 at 80-83.

After reviewing intervenors' brief in support of their motion for partial summary judgment, the court finds that intervenors did not cite paragraphs 106-110 or paragraph 112 in support of any of their arguments. See Docket 308. In their amended Rule 56.1 statement, intervenors indicate that these statements support the fact that the opinions of plaintiffs' doctors and experts about what stage of development an organism becomes a "human being" are personal subjective opinions, not scientific opinions. Docket 296 at 48-50. But the opinions of plaintiffs' doctors and experts about when an organism becomes a "human being" is immaterial because the statute at issue defines "human being." See SDCL 34-23A-1(4). Indeed, the Eighth Circuit recognized that the statute provided a limiting definition of human being and that once one accepts that the statutorily required biological disclosure must take into account the limiting definition, such disclosure is truthful and relevant. Planned Parenthood Minnesota, North Dakota, South Dakota v. Rounds, 530 F.3d 724, 735 (8th Cir. 2008). As a result, paragraphs 106-110 and paragraph 12 are stricken from intervenors' amended Rule 56.1 statement.

In sum, because paragraphs 83, 85, 86, 106-110, and 112 are not relevant to intervenors' legal arguments contained within their motion for partial summary judgment, they are stricken from their amended Rule 56.1 statement.

II. Statements Related to Suicide and Suicide Ideation

Plaintiffs contend that despite this court's directive to delete statements in relation to suicide and suicide ideation, intervenors still included such statements in their amended Rule 56.1 statement. Intervenors urge that these statements are not made to support the accuracy of the "suicide" disclosures, but instead are ...


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