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Planned Parenthood Minnesota, North Dakota v. Dennis Daugaard

December 27, 2011


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


Alpha Center and Black Hills Crisis Pregnancy Center, applicants for intervention (applicants), move to intervene as a matter of right in this case. Docket 40. Plaintiffs, Planned Parenthood Minnesota, North Dakota, South Dakota, and Dr. Carol E. Ball, oppose the motion. Docket 45. Defendants, Governor Dennis Daugaard, Attorney General Marty Jackley, Secretary Doneen Hollingsworth, and Board President Robert Ferrell, in their official capacities, have no objection to intervention. Docket 44. For the reasons set forth below, applicants' motion to intervene is granted.


In the 2011 legislative term, the South Dakota Legislature adopted House Bill 1217 (the Act), which provided additions to the State's existing "informed consent" abortion law requirements. H.B. 1217, 2011 Leg., Reg. Sess. (S.D. 2011), to be codified at SDCL 34-23A. The Act established additional procedures that abortion providers must follow prior to performing any abortion in South Dakota to insure that the woman's choice is voluntary, uncoerced, and informed. After the governor signed the bill into law, plaintiffs filed a complaint on May 27, 2011, challenging the constitutionality of the Act on the grounds that it violates the First Amendment's Free Speech Clause and Establishment Clause and the Fourteenth Amendment's Due Process Clause and Equal Protection Clause. Docket 1. Plaintiffs filed a motion for a preliminary injunction on June 3, 2011, to enjoin enforcement of the Act prior to its effective date of July 1, 2011. Docket 10. This court granted plaintiffs' preliminary injunction on June 30, 2011. Docket 39. The next day, applicants moved to intervene. Docket 40.

The relevant sections of the Act that pertain to this motion are sections 3, 5, and 6. Section 3 requires physicians who meet with women considering abortions to refer them to a pregnancy help center.*fn1 Section 5 outlines what a pregnancy help center is, what it does, and how to register as one under the Act. Specifically, those businesses who want to be considered a pregnancy help center under the Act have to register with the State to be eligible. After they are listed on the registry then these centers may receive the referrals of pregnant women who, under the Act, must receive an assessment prior to obtaining an abortion. Section 6 identifies what the pregnancy help center is required and permitted to do during this consultation. Docket 39 at 6. Section 6 also identifies the topics that should be explored during the pregnancy help center referral, including checking for signs of coercion and ensuring the woman is informed of all her options. Finally, this section outlines the procedures for when and how a pregnancy help center may report back to the referring doctor, if necessary.

Applicants are two of the three pregnancy help centers who have registered with the State to obtain referrals under the Act. Applicants successfully intervened in a similar case before this court with nearly identical parties on a similar legislative challenge. See Planned Parenthood Minn., N.D., S.D. v. Rounds, Civ. 05-4077-KES, 2005 WL 2338863 (D.S.D. Sept. 23, 2005). Applicants argue that their interests and potential injuries have only grown since the Rounds case, and intervention is essential to protecting these interests.


To successfully intervene, applicants must show that they have Article III standing and that they should be allowed to intervene as a matter of right under Federal Rule of Civil Procedure 24(a). In this case, applicants argue that they have Article III standing, their motion to intervene is timely, the State cannot adequately represent their interests, and the motion to intervene should be granted. Docket 40-11 at 6-7. Plaintiffs contend that applicants' interests do not satisfy Article III standing or Rule 24(a), their motion is untimely, and the State will adequately represent their interests. Therefore, plaintiffs ask the court to deny the motion to intervene.

I. Article III Standing

Beyond having to fulfill the requirements of Rule 24 to intervene, parties also have to establish Article III standing to litigate claims in federal court. United States v. Metro. St. Louis Sewer Dist., 569 F.3d 829, 833 (8th Cir. 2009) (citation omitted). "To show Article III standing, a [party] has the burden of proving: (1) that he or she suffered an 'injury-in-fact,' (2) a causal relationship between the injury and the challenged conduct, and (3) that the injury likely will be redressed by a favorable decision." Steger v. Franco, Inc., 228 F.3d 889, 892 (8th Cir. 2000) (citation omitted).

Injury in fact "is an injury to a legally protected interest that is 'concrete, particularized, and either actual or imminent,' " and the injury must be imminent "to ensure that the alleged injury is not too speculative[.]" Metro. St. Louis Sewer Dist., 569 F.3d at 834 (citations omitted). The denial of a benefit can amount to an injury-in-fact. See Oti Kaga, Inc. v. S.D. Hous. Dev. Auth., 342 F.3d 871, 878 (8th Cir. 2003) (finding sufficient injury in a standing analysis through the wrongful denial of tax credits). Damage to a business interest can also be sufficient injury for standing purposes S.D. Farm Bureau, Inc. v. Hazeltine, 340 F.3d 583, 592 (8th Cir. 2003) (stating that loss of business due to the enforcement of an amendment to the South Dakota Constitution satisfied standing requirements).

If the court eventually rules in favor of plaintiffs in this case then applicants are in danger of being actually or imminently injured because applicants will lose clients and business in a number of different ways. S.D. Farm Bureau, Inc., 340 F.3d at 592. If the statute is enjoined, applicants will lose the referrals that the law would require, which would amount to an estimated 85 to 90 percent of all women who consider abortion. Docket 40-11 at 33. This loss in potential referrals amounts to a loss in a benefit, which is sufficient injury. Oti Kaga, 342 F.3d at 878. Additionally, any loss of clientele to these centers frustrates the primary purpose or mission*fn2 of the businesses, which is to counsel pregnant women and ensure that they make voluntary and informed decisions about their potential relationships with their unborn children. See Granville House, Inc. v. Dep't of Health & Human Servs., 715 F.2d 1292, 1298 (8th Cir. 1983) (determining that the frustration of the organization's primary purpose of serving indigent clients coupled with its economic injury was sufficient to confer standing to litigant).

The court's prior decision in Rounds is instructive because it was a previous dispute involving substantially the same parties. 2005 WL 2338863, at *1. Rounds also involved a challenge to portions of South Dakota's informed consent law, and applicants in this case moved to intervene in that suit as well. Id. At the time of the Rounds decision, applicants were not formally identified as pregnancy help centers under the challenged statute. But in its standing analysis, the court determined that applicants were in immediate danger of sustaining a direct injury because they could lose the Act's referrals. Id. at *2. In this case, now that both applicants have registered and are eligible to receive referrals under the Act, their interests and potential injuries have multiplied. These interests and potential injuries are sufficient to satisfy injury in fact for standing purposes.

Applicants also satisfy the traceability element of standing. "Traceability requires proof of causation, showing the injury resulted from the actions of the defendant 'and not . . . [from] the independent action of some third party not before the court.' " Oti Kaga, 342 F.3d at 878. There is a causal connection between applicants' proposed injuries of loss of clients or frustration of their mission and plaintiffs' attempt to enjoin the statute. If the court rules in plaintiffs' favor then applicants will not receive the benefit of client referrals anticipated under the new law. See S.D. Farm Bureau, Inc. v. South Dakota, 189 F.R.D. 560, 563 (D.S.D. 1999) (determining that applicants met the second requirement for standing because if the court struck down the amendment then it would directly cause applicants' injury).

The third factor is satisfied because the alleged injury would be redressed by a favorable decision from this court. If the court eventually finds for the State and the statute goes into effect, then applicants will receive the referrals that will increase their clientele and other business interests would not be affected. See Am. Civil Liberties Union of Minn. v. Tarek ibn Ziyad Acad., 643 F.3d 1088, 1093 (8th Cir. 2011) (determining the redressability factor is met because applicants' alleged injury, impingement of ...

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