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Planned Parenthood Minnesota, North Dakota, South Dakota, and Carol E. Ball, M.D v. Dennis Daugaard

June 30, 2011

PLANNED PARENTHOOD MINNESOTA, NORTH DAKOTA, SOUTH DAKOTA, AND CAROL E. BALL, M.D., PLAINTIFFS,
v.
DENNIS DAUGAARD, GOVERNOR, MARTY JACKLEY, ATTORNEY GENERAL, DONEEN HOLLINGSWORTH, SECRETARY OF HEALTH, DEPARTMENT OF HEALTH, AND ROBERT FERRELL, PRESIDENT, BOARD OF MEDICAL AND OSTEOPATHIC EXAMINERS, IN THEIR OFFICIAL CAPACITIES, DEFENDANTS.



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

MEMORANDUM OPINION AND ORDER

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

BACKGROUND

In 2005, the South Dakota Legislature amended SDCL 34-23A-10.1 to include various requirements to ensure a pregnant woman's voluntary and informed consent before she underwent an abortion. Some of those amendments were challenged by plaintiffs on the grounds that they violated the First and Fourteenth Amendments of the United States Constitution. See generally Planned Parenthood Minn., N.D., S.D. v. Rounds, 530 F.3d 724 (8th Cir. 2008) (en banc). That case is currently before the Eighth Circuit Court of Appeals.

In 2011, the South Dakota Legislature passed the Act at issue in this case. Plaintiffs challenge the constitutionality of the Act on the grounds that it violates the First Amendment's Free Speech Clause and the Fourteenth Amendment's Due Process Clause and Equal Protection Clause.*fn1 A hearing on plaintiffs' motion for preliminary injunction was held on June 27, 2011.

There are essentially four parts to the Act: (1) The Pregnancy Help Center Requirements; (2) The 72-Hour Requirement; (3) the Risk Factors Requirement; and (4) the Coercion Provisions. Generally, the Pregnancy Help Center Requirements require a pregnant woman to consult with a registered "pregnancy help center" before she is able to undergo an abortion. The 72-Hour Requirement establishes at least a three-day waiting period between the pregnant woman's initial consultation with her physician and the abortion. The Coercion Provisions impose a duty on the physician to certify that the pregnant woman has not been "coerced" as defined in the Act. Finally, the Risk Factors Requirement establishes what information the physician must tell a pregnant woman with regard to the "complications associated with abortion."

Defendants acknowledge that no court has upheld a requirement that is similar to the Risk Factors Requirement. Defendants also acknowledge that no other state currently has requirements that are comparable to the Pregnancy Help Center Requirements, the 72-Hour Requirement, or the Coercion Provisions.

DISCUSSION

I. Preliminary Injunction Standard

When ruling on a motion for a temporary restraining order or preliminary injunction the court must consider: (1) the threat of irreparable harm to the moving party; (2) the balance of this harm with any injury a preliminary injunction would inflict on other parties; (3) the likelihood of success on the merits; and (4) the public interest. Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 113 (8th Cir. 1981) (en banc). See also S.B. McLaughlin & Co. v. Tudor Oaks Condominium Project, 877 F.2d 707, 708 (8th Cir. 1989) (noting that the trial court applied the same standard for a temporary restraining order and the preliminary injunction). "Where a preliminary injunction is sought to enjoin the implementation of a duly enacted state statute, [] district courts [must] make a threshold finding that a party is likely to prevail on the merits."*fn2 Rounds, 530 F.3d at 732-33.

II. Likelihood of Success on the Merits

Plaintiffs challenge the constitutionality of the Act as a whole*fn3 and several specific provisions in the Act. The court will first analyze the threshold issue of whether plaintiffs are likely to succeed on the merits with regard to each challenged provision.

A. The Pregnancy Help Center Requirements Section 5 of the Act sets forth the requirements for maintaining a registry of pregnancy help centers and the requirements that a pregnancy help center must satisfy in order to be on the registry. Section 7 of the Act defines "pregnancy help center" as follows: any entity . . . that has as one of its principal missions to provide education, counseling, and other assistance to help a pregnant mother maintain her relationship with her unborn child and care for her unborn child, which entity has a medical director who is licensed to practice medicine in the state of South Dakota, or that it has a collaborative agreement with a physician licensed in South Dakota to practice medicine to whom women can be referred, which entity does not perform abortions and is not affiliated with any physician or entity that performs abortions, and does not now refer pregnant mothers for abortions, and has not referred any pregnant mother for abortions for the three-year period immediately preceding July 1, 2011[.]

Subsection 3 of section 3 of the Act reads as follows with regard to the requirements that pertain to pregnancy help centers:

During the initial consultation between the physician and the pregnant mother, prior to scheduling a surgical or medical abortion, the physician shall . . . [p]rovide the pregnant mother with the names, addresses, and telephone numbers of all pregnancy help centers that are registered with the South Dakota Department of Health pursuant to this Act, and provide her with written instructions that set forth the following:

(a) That prior to the day of any scheduled abortion the pregnant mother must have a consultation at a pregnancy help center at which the pregnancy help center shall inform her about what education, counseling, and other assistance is available to help the pregnant mother keep and care for her child, and have a private interview to discuss her circumstances that may subject her decision to coercion;

(b) That prior to signing a consent to an abortion, the physician shall first obtain from the pregnant mother, a written statement that she obtained a consultation with a pregnancy help center, which sets forth the name and address of the pregnancy help center, the date and time of the consultation, and the name of the counselor at the pregnancy help center with whom she consulted[.]

Section 6 of the Act then sets forth what the pregnancy help center is required and allowed to do during the required consultation. Specifically, section 6 states that a pregnancy help center: shall be permitted to interview the pregnant mother to determine whether the pregnant mother has been subject to any coercion to have an abortion, and shall be permitted to inform the pregnant mother in writing or orally, or both, what counseling, education, and assistance that is available to the pregnant mother to help her maintain her relationship with her unborn child and help her care for the child both through the pregnancy help center or any other organization, faith-based program, or governmental program. . . .

Any written statement or summary of assessment prepared by the pregnancy help center as a result of counseling of a pregnant mother as a result of the procedures created by this Act, may be forwarded by the pregnancy help center, in its discretion, to the abortion physician. If forwarded to the physician, the written statement or summary of assessment shall be maintained as a permanent part of the pregnant mother's medical records. Other than forwarding such documents to the abortion physician, no information obtained by the pregnancy help center from the pregnant mother may be released, without the written signed consent of the pregnant mother or unless the release is in accordance with federal, state, or local law.

Section 4 of the Act then states that "no physician may take a consent for an abortion nor may the physician perform an abortion, unless the physician . . . first obtains from the pregnant mother, a written, signed statement setting forth all information required by subsection 3(b) of section 3[,]" which is set forth above.

Plaintiffs challenge these sections, hereinafter referred to as the Pregnancy Help Center Requirements, on six grounds: (1) they violate the patients' rights to obtain an abortion; (2) they violate the patients' right to free speech; (3) they violate the patients' informational privacy rights; (4) they violate the patients' and plaintiffs' rights to equal protection of the laws; (5) they violate the Establishment Clause; and (6) they violate plaintiffs' right to free speech.*fn4

1. Compelled Speech (Patient) Analysis "[T]he right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all." Wooley v. Maynard, 430 U.S. 705, 714 (1977). In analyzing whether "state action violates the right not to speak, a court first determines whether the action implicates First Amendment protections." Rounds, 530 F.3d at 733 (citation omitted). "If it does, the court must determine whether the action is narrowly tailored to serve a compelling state interest." Id.

In Riley v. National Federation of the Blind of North Carolina, Inc., 487 U.S. 781 (1988), the Supreme Court emphasized that the Free Speech Clause applies in instances of "compelled statements of 'fact[.]' " Id. at 797-98 ("These cases cannot be distinguished simply because they involved compelled statements of opinion while here we deal with compelled statements of 'fact': either form of compulsion burdens protected speech."). See also Axson-Flynn v. Johnson, 356 F.3d 1277, 1284 n.4 (10th Cir. 2004) ("The constitutional harm -and what the First Amendment prohibits-is being forced to speak rather than remain silent. . . . This harm occurs regardless of whether the speech is ideological." (citations omitted)). The First Amendment's protection against compelled speech with regard to factual statements was reaffirmed in McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995), where the Court explained: "Despite . . . the public's interest in identifying the creator of a work of art, an author generally is free to decide whether or not to disclose his or her true identity. . . . Accordingly, an author's decision to remain anonymous . . . is an aspect of the freedom of speech protected by the First Amendment." Id. at 341-42. Thus, in determining whether the Pregnancy Help Center Requirements implicate First Amendment protections, the court is guided by the basic principle that the First Amendment protects "not only [] expressions of value, opinion, or endorsement, but . . . statements of fact the speaker would rather avoid[.]" Hurley v. Irish-Am. Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557, 573-74 (1995) (citing McIntyre, 514 U.S. at 341-42; Riley, 487 U.S. at 797-98).

The Eighth Circuit Court of Appeals has stated that "[a] First Amendment protection against compelled speech, however, has been found only in the context of governmental compulsion to disseminate a particular political or ideological message." United States v. Sindel, 53 F.3d 874, 878 (8th Cir. 1995) (citing cases). The holding in Sindel, however, is a narrow one: "There is no right to refrain from speaking when 'essential operations of government may require it for the preservation of an orderly society, -as in the case of compulsion to give evidence in court.' " Id. at 878 (citation omitted).

Here, there are no "essential operations of government" that "require" the information "for preservation of an orderly society." See id. Indeed, the patients' compelled statements are given to a private entity and not the government. To the extent that Sindel might be construed beyond this narrow holding, the Supreme Court's decision in Hurley would seemingly abrogate any broader holding because Hurley was decided after Sindel.

Defendants argue that the patients' free speech rights are not implicated because a pregnant woman is only required to "speak" inasmuch as she is required to disclose that she is pregnant and that she has chosen to undergo an abortion. First, the plain language of the Pregnancy Help Center Requirements contradict defendants' construction. Subsection 3(a) of section 3 states that the "pregnant mother must . . . have a private interview to discuss her circumstances that may subject her decision to coercion." An interview necessarily requires questions and answers. And defendants offer no explanation on how an interview "to discuss her circumstances" could be done without the pregnant woman actually disclosing "her circumstances."

Second, and in the alternative, if the pregnant woman does not have to actually discuss her circumstances during an interview and she only has to disclose that she is pregnant and has chosen to undergo an abortion, the Pregnancy Help Center Requirements still implicate the patient's free speech rights. At the very least, the requirements on their face compel a patient to not only disclose that she is pregnant and is seeking an abortion, but also to disclose the name of her abortion physician so the pregnancy help center knows to whom to send the written statement or summary of assessment. See Section 6 of the Act (authorizing a pregnancy help center to forward "documents to the abortion physician"). This compelled disclosure necessarily reveals private factual information, such as she is pregnant, she is choosing to undergo an abortion, she has spoken with an abortion physician, and the name of her abortion physician. And she is being compelled to disclose this information to someone who is opposed*fn5 to her decision to undergo an abortion. Even these "limited" compelled disclosures implicate the protection afforded by the First Amendment's Free Speech Clause. See Hurley, 515 U.S. at 573-74 (citing McIntyre, 514 U.S. at 341-42; Riley, 487 U.S. at 797-98).

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

The court finds that plaintiffs have met their burden of demonstrating that the Pregnancy Help Center Requirements "implicate[] First Amendment protections." Rounds, 530 F.3d at 733. The burden is therefore on defendants to demonstrate that "the action is narrowly tailored to serve a compelling state interest." Id.

There is a compelling state interest in protecting a woman from being forced against her will to have an abortion and in informing a woman of truthful, relevant, and non-misleading information about abortion, alternatives to abortion, and pregnancy assistance. While plaintiffs dispute that these identified goals are the true goals behind the Pregnancy Help Center Requirements, there is no dispute that these goals constitute a compelling state interest. The court assumes, without deciding, that these are the real goals sought to be achieved by the Pregnancy Help Center Requirements and that they constitute a compelling state interest.

Even if the Pregnancy Help Center Requirements are directed at a compelling state interest, however, they must be narrowly tailored toward achieving those interests. See Rounds, 530 F.3d at 733. Physicians have been, and continue to be, fully capable of ensuring that the patient has not chosen to undergo an abortion against her will. See SDCL 34-23A-10.1 ("No abortion may be performed unless the physician first obtains a voluntary and informed written consent of the pregnant woman upon whom the physician intends to perform the abortion[.]"). Indeed, section 2 of the Act acknowledges the existence of the physician's common law duty to determine that "the patient's consent is voluntary and uncoerced and informed[.]"

Moreover, when considering the goal of protecting the patient from coercion and defendants' portrayal of what the Pregnancy Help Center Requirements actually require, it becomes clear that the requirements are not tailored towards the proclaimed compelling state interest. As discussed earlier, defendants argue that the Pregnancy Help Center Requirements do not require the pregnant woman to say anything to the pregnancy help center employee other than that she is pregnant and has chosen to undergo an abortion. If this is all that is required, then the requirements do little, if anything, in terms of achieving the goal of protecting a woman from being coerced into obtaining an abortion.

With regard to the goal of informing the woman about abortions, alternatives to abortion, and pregnancy assistance, there are several less restrictive alternatives that are equally capable of informing the pregnant woman about such matters. For example, the physician or the physician's agent is already required by SDCL 34-23A-10.1 to provide the following information to the patient at least 24 hours in advance of the abortion: the name and address of a pregnancy help center near the abortion facility; that written materials produced by the state of South Dakota are available free of charge; and that a multi-media website developed by the state South Dakota exists. Cf. Reno v. American Civil Liberties Union, 521 U.S. 844, 874 (1997) (holding that a statute was not narrowly tailored because there were "less restrictive alternatives [that] would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve"). If the woman wishes to consult with a pregnancy help center, read pamphlets, or study the website, she is free to do so. Because the Pregnancy Help Center Requirements only apply to women who have chosen to undergo an abortion, they do nothing to inform pregnant women who may not be seeking an abortion but are seeking information about alternatives to abortion and information about assistance for raising children.

Defendants argue that using printed materials or the patient's physician to provide information to pregnant women who have chosen to undergo an abortion have not always been successful. Thus, according to defendants, the legislature is allowed to experiment with different message delivery mechanisms in an attempt to ensure that the woman is fully informed. The court rejects defendants' underlying assumption that legislatures are allowed to use more intrusive means that regulate speech because the alternatives are not 100 percent successful in achieving a compelling state interest. See Reno, 521 U.S. at 875 (reaffirming the holding in Sable Communications of California, Inc. v. F.C.C., 492 U.S. 115 (1989), that "rejected the argument that we should defer to the congressional judgment that nothing less than a total ban would be effective in preventing enterprising youngsters from gaining access to indecent communications").

Moreover, the burden is on defendants to demonstrate that the requirements are narrowly tailored, and there is nothing in the record that supports defendants' underlying assumption that truthful, relevant, and non-misleading information given through a pregnancy help center will cause a pregnant woman to be better informed than the current existing methods from which a woman can choose on a voluntary basis. In fact, forcing a woman to listen to someone who is opposed to her decision to have an abortion is likely to cause the woman to reject the information outright.

For these reasons, the court finds that defendants have failed to demonstrate that the means chosen to achieve the identified interests are narrowly tailored toward achieving the purported compelling state interests. In accordance with recent Supreme Court decisions involving facial free speech challenges, the court concludes that plaintiffs have demonstrated that "a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep." United States v. Stevens, 130 S. Ct. 1577, 1587 (2010) (internal quotations and citation omitted). See also Brown v. Entm't Merchs. Ass'n, S. Ct. , 2011 WL 2518809, at *4 (June 27, 2011) (recognizing that the holding in Stevens "controls this case"). Cf. Gonzales v. Carhart, 550 U.S. 124, 167 (2007) ("The latitude given facial challenges in the First Amendment context is inapplicable here."). Therefore, plaintiffs have met their burden of demonstrating that they are likely to succeed on the merits of their claim that the Pregnancy Help Center Requirements violate the First Amendment's Free Speech Clause.

2. Undue Burden Analysis

Plaintiffs argue in the alternative that the Pregnancy Help Center Requirements constitute a substantial obstacle that will deter many women from exercising their constitutional right to obtain an abortion.*fn6 Defendants argue that plaintiffs have not demonstrated, and cannot demonstrate, that the Pregnancy Help Center Requirements will interfere with the decision to obtain an abortion for a "large fraction" of the affected women.*fn7

When a statute is challenged on the ground that it violates a woman's constitutional right to obtain an abortion, the burden placed on the challenger "has been a subject of some question." Gonzales v. Carhart, 550 U.S. 124, 167 (2007) (citations omitted). Nonetheless, the Eighth Circuit Court of Appeals has determined that the standard set out in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), applies. See Planned Parenthood, Sioux Falls Clinic v. Miller, 63 F.3d 1452, 1456-58 (8th Cir. 1995) ("We will therefore apply the Casey standard to determine if South Dakota's Act to Regulate the Performance of Abortion is constitutional on its face.").*fn8

Thus, the court will apply the following standard as set out in Casey: "If the law will operate as a substantial obstacle to a woman's choice to undergo an abortion 'in a large fraction of the cases in which [it] is relevant, . . . [i]t is an undue burden, and therefore invalid.' " Id. at 1458 (alteration in original) (quoting Casey, 505 U.S. at 895). In determining whether plaintiffs have met this burden, " '[t]he proper focus of constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant.'"

Id. (alteration in original) (citation omitted).

As the applicable test makes clear, whether the Pregnancy Help Center Requirements constitute an "undue burden" depends on whether, in a large fraction of the cases in which they are relevant, the Pregnancy Help Center Requirements create a "substantial obstacle to a woman's choice to undergo an abortion." See id. There are three issues that must be resolved in order to determine whether plaintiffs have met their burden: (1) in what cases are the requirements "relevant;" (2) do the requirements create a "substantial obstacle to the woman's choice to undergo an abortion" in those cases in which the requirements are "relevant;" and (3) is the substantial obstacle present in a "large fraction" of the "relevant" cases.

As to the issue of what cases are "relevant," the Pregnancy Help Center Requirements would not apply if the woman has not chosen to undergo an abortion or is uncertain about whether or not she wishes to obtain an abortion.*fn9 That is, the requirements are only relevant in those instances where a woman has chosen to undergo an abortion in South Dakota. Similarly, the Pregnancy Help Center Requirements are only relevant in those instances where a woman has not chosen to consult with a pregnancy help center on her own. Thus, the relevant cases are those that involve a woman who has chosen to undergo an abortion and would otherwise not consult with a pregnancy help center. Cf. Casey, 505 U.S. at 894 (limiting the relevant cases to "married women seeking abortions who do not wish to notify their husbands of their intentions and who do not qualify for one of the statutory exceptions to the notice requirement").

With the relevant cases in mind, the next issue is whether the Pregnancy Help Center Requirements create "a substantial obstacle to a woman's choice to undergo an abortion." See Miller, 63 F.3d at 1458. The plain language of sections 3, 4, 5, and 6 makes it clear that a woman can obtain an abortion if, and only if, she first consults a pregnancy help center when she otherwise would not. Forcing a woman to divulge to a stranger at a pregnancy help center the fact that she has chosen to undergo an abortion humiliates and degrades her as a human being. The woman will feel degraded by the compulsive nature of the Pregnancy Help Center Requirements, which suggest that she has made the "wrong" decision, has not really "thought" about her decision to undergo an abortion, or is "not intelligent enough" to make the decision with the advice of a physician.

Furthermore, these women are forced into a hostile environment. Aside from its compulsive nature, the hostility of the consultation is evidenced by the fact that section 5 of the Act establishes that the only entities that can be listed on the state registry of pregnancy help centers are those that routinely "consult[] with women for the purpose of helping them keep their relationship with their unborn children" and that "one of [their] principal missions is to educate, counsel, and otherwise assist women to help them maintain their relationship with their unborn children." A pregnancy help center cannot have even "referred any pregnant women for an abortion at any time in the three years immediately preceding July 1, 2011." Requiring these women to "have a consultation," and a "private interview" with a "pregnancy help center" destroys "[t]he right to avoid unwelcome speech" that is "protected in confrontational settings." Cf. Hill v. Colorado, 530 U.S. 703, 717 (2000). And it forces an unnecessary confrontation on one of the most volatile subjects in America. See Stenberg v. Carhart, 530 U.S. at 920 (acknowledging that "[m]illions of Americans believe that . . . abortion is akin to causing the death of an innocent child"); Casey, 505 U.S. at 852 (recognizing that "some deem [abortions as] nothing short of an act of violence against innocent human life").

There are clear ideological differences between a woman who has chosen to undergo an abortion and a "pregnancy help center." When considering these differences, a woman will likely be unwilling to actually consult with a pregnancy help center because she will fear being ridiculed, labeled a murderer, subjected to anti-abortion ideology, and repeatedly contacted by the pregnancy help center. Moreover, a woman may likely believe, rightly or wrongly, that her decision to have an abortion could become public information. And it will not matter to her that in the future she may be able to obtain legal relief from the pregnancy help center worker who disclosed the information. By then it will be too late. Thus, rather than ...


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