The opinion of the court was delivered by: Karen E. Schreier Chief Judge
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT INTERVENORS' MOTION FOR PARTIAL SUMMARY JUDGMENT AND PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
In 2005, the South Dakota Legislature passed House Bill 1166, which revised South Dakota law on informed consent to abortion by expanding the disclosure requirements.*fn1 Plaintiffs, Planned Parenthood Minnesota, North Dakota, South Dakota and Carol E. Ball, M.D., commenced an action, arguing that the informed consent disclosures required by the statute were unconstitutional, and moved for a preliminary injunction. Docket 1 and Docket 10. This court granted the motion for preliminary injunction, finding that the disclosures violated the First Amendment rights of the physicians by requiring them to espouse the state's ideology, and a panel of the Eighth Circuit Court of Appeals affirmed. Docket 40 and Docket 232. The Eighth Circuit Court of Appeals, on rehearing en banc, vacated the panel decision and reversed the district court's decision and remanded the case to the district court for consideration of the remaining issues. See Planned Parenthood v. Rounds, 530 F.3d 724 (8th Cir. 2008) (en banc) (Rounds III). Upon remand, the parties filed motions regarding the preliminary injunction originally sought by plaintiffs. Docket 241, Docket 245, and Docket 246. The court consolidated the preliminary and permanent injunction motions for trial. The court allowed the parties to amend their then-pending motions for summary judgment and set new deadlines for the motions. Docket 256.
Defendants, Governor Mike Rounds and Attorney General Larry Long, now move for summary judgment with respect to the biological disclosure, relationship disclosures, medical risk disclosures, and medical emergency exception. Intervenors, Alpha Center, Black Hills Crisis Pregnancy Center, Dr. Glenn Ridder, and Eleanor Larsen, move for partial summary judgment with respect to the biological disclosure and relationship disclosures.
Plaintiffs move for summary judgment with respect to the relationship disclosures, medical risk disclosures, and medical emergency exception.
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Only disputes over facts that might affect the outcome of the case under the governing substantive law will properly preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed. 2d 202 (1986). Summary judgment is not appropriate if a dispute about a material fact is genuine, that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id.
The moving party bears the burden of bringing forward sufficient evidence to establish that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed. 2d 265 (1986). The nonmoving party is entitled to the benefit of all reasonable inferences to be drawn from the underlying facts in the record. Vette Co. v. Aetna Cas. & Sur. Co., 612 F.2d 1076, 1077 (8th Cir. 1980). The nonmoving party may not, however, merely rest upon allegations or denials in its pleadings, but must set forth specific facts by affidavits or otherwise showing that a genuine issue exists. Forrest v. Kraft Foods, Inc., 285 F.3d 688, 691 (8th Cir. 2002).
Defendants and intervenors contend that the biological disclosure is constitutional as a matter of law in light of Rounds III. Plaintiffs agree that the court can render final declaratory relief that the biological disclosure is constitutional as long as the court determines that the statute only requires that specific biological information be provided and that this information may be provided in words chosen by the physician.
The statute requires the physician to inform the pregnant woman "[t]hat the abortion will terminate the life of a whole, separate, unique, living human being" (biological disclosure). SDCL 34-23A-10.1(1)(b). "Human being" is defined by the statute 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).
In Rounds III, 530 F.3d at 735, the Eighth Circuit determined that "Planned Parenthood cannot succeed on the merits of its claim that [the biological disclosure] violates a physician's right not to speak unless it can show that the disclosure is either untruthful, misleading or not relevant to the patient's decision to have an abortion." The court noted that "it would be incumbent upon one preparing the disclosure form required by [the statute], and upon a physician answering a patient's questions about it, to account for any applicable statutory definitions." Id. Consequently, the court found that [o]nce one accepts that the required disclosure must take into account the limiting definition [of human being], the evidence submitted by the parties regarding the truthfulness and relevance of the [biological disclosure] generates little dispute. The disclosure actually mandated by [the biological disclosure], in concert with the definition [of human being], is that the abortion will terminate the life of a whole, separate, unique, living human being, [biological disclosure], and that human being in this case means an individual living member of the species of Homo sapiens . . . during [its] embryonic [or] fetal age."
Id. at 735-36 (emphasis added). The Eighth Circuit explained that "[t]he State's evidence suggests that the biological sense in which the embryo or fetus is whole, separate, unique and living should be clear in context to a physician, and Planned Parenthood submitted no evidence to oppose that conclusion." Id. at 736.
It is evident from the Eighth Circuit's discussion that it found that the statute mandated that the physician inform the pregnant woman about the biological disclosure using the words set forth in the statute, especially in light of the fact that the Eighth Circuit found that the definition of "human being" should be disclosed in connection with the biological disclosure. Although defendants' oral argument and Judge Gruender's dissent in the initial Eighth Circuit opinion suggest that the statute does not mandate a script but rather merely directs the physician to categories of information that must be disclosed to patients, this court is bound to follow the en banc opinion of the Eighth Circuit, which has determined that the disclosure be made with the words set out in the statute and any applicable statutory definitions.
Accordingly, the court finds that before performing abortions, the physician must inform the patient "[t]hat the abortion will terminate the life of a whole, separate, unique, living human being." SDCL 34-23A-10.1(1)(b). But, as the State concedes in its reply brief, nothing prohibits the physician from providing the patient with additional information, including that the term "human being," as used in the statute, is used in a biological sense and not an ideological sense. Docket 289, at 6. Thus, defendants' and intervenors' motions for summary judgment are granted with respect to the biological disclosure.
II. Relationship Disclosures
In order to obtain informed consent to an abortion, the statute requires a physician to inform the pregnant woman "[t]hat the pregnant woman 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." SDCL 34-23A-10.1(1)(c). Further, in accordance with the statute, the physician must tell the pregnant woman "[t]hat by having an abortion, her existing relationship and her existing constitutional rights with regards to that relationship will be terminated." SDCL 34-23A-10.1(1)(d) (relationship disclosures).
Defendants and intervenors argue that the relationship disclosures require the same awareness as in the context of waiving parental rights. They assert that the relationship is protected under the United States Constitution pursuant to case law and is protected under the laws of South Dakota based upon South Dakota statutes addressing unborn children in the context of wrongful death and homicide causes of action as well as other similar statutes. They further argue that a relationship exists between a pregnant woman and a fetus because they are physically and psychologically connected.
Plaintiffs respond that the relationship disclosures are unconstitutional because they are untruthful and misleading. Plaintiffs assert that the United States Constitution does not protect any alleged relationship between the pregnant woman and the embryo or fetus but instead it protects the woman's right to choose to have an abortion. Plaintiffs further assert that the laws of South Dakota do not protect any alleged relationship between the pregnant woman and the embryo or fetus because the laws concerning wrongful death actions, criminal homicide, support obligations, and life-sustaining treatment for a pregnant woman were adopted to address other concerns.
The Eighth Circuit has determined that "Casey and Gonzales establish that, while the State cannot compel an individual simply to speak the State's ideological message, it can use its regulatory authority to require a physician to provide truthful, non-misleading information relevant to a patient's decision to have an abortion, even if that information might also encourage the patient to choose childbirth over abortion." Rounds III, 530 F.3d at 734-35. The burden is on plaintiffs to show that "the disclosure is either untruthful, misleading, or not relevant to the patient's decision to have an abortion." Id. at 735.
Here, the statute requires the physician to inform the pregnant woman that she has an existing "relationship" with an unborn human being and that an abortion will terminate that existing "relationship." SDCL 34-23A-10.1(b)-(c). Significantly, the statute does not define the term "relationship."
See SDCL 34-23A-1. But at the July 17, 2009, renewed preliminary injunction hearing, the State conceded that the term "relationship" is used in a ...