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Planned Parenthood Minnesota v. Daugaard

United States District Court, D. South Dakota, Southern Division

July 21, 2017

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, M.D., President, board of medical and Osteopathic Examiners, in their official capacities, Defendants. ALPHA CENTER, and BLACK HILLS CRISIS PREGNANCY CENTER, doing business as CARE NET PREGNANCY RESOURCE CENTER, Intervenors.

          ORDER DENYING MOTION IN LIMINE

          KAREN E. SCHREIER UNITED STATES DISTRICT JUDGE

         Intervenors Alpha Center and Black Hills Crisis Pregnancy Center filed a Motion in Limine seeking an order prohibiting plaintiffs Planned Parenthood Minnesota, North Dakota, South Dakota and Carol E. Ball, M.D., from offering evidence on and relitigating two issues based on res judicata. Docket 160. Plaintiffs claim that they are not attempting to relitigate the two issues. Docket 167. Defendants Dennis Daugaard, Marty Jackley, Doneen Hollingsworth, and Robert Ferrel do not join in intervenors' motion. Docket 175.

         BACKGROUND

         In 2005, the South Dakota Legislature amended SDCL § 34-23A-10.1 to add various requirements to ensure a pregnant woman's consent before obtaining an abortion. Plaintiffs challenged some of the requirements alleging that they violated the First and Fourteenth Amendments. The Eighth Circuit Court of Appeals ultimately upheld the requirements in Planned Parenthood Minnesota, North Dakota, South Dakota v. Rounds, 530 F.3d 724 (8th Cir. 2008)(en banc)(Rounds I), Planned Parenthood Minnesota, North Dakota, South Dakota v. Rounds, 653 F.3d 662 (8th Cir. 2011), vacated in part, 662 F.3d 1072 (2011) (Rounds II), and Planned Parenthood Minnesota, North Dakota, South Dakota v. Rounds, 686 F.3d 889 (8th Cir. 2012)(en banc)(Rounds III).

         In Rounds I, defendants appealed the district court's preliminary injunction preventing SDCL § 34-23A-10.1 from becoming effective. The district court “granted a preliminary injunction based on its finding that Planned Parenthood had a fair chance at success on its claim that [the Human Being disclosure] violated physicians' free speech rights and that the balance of harms favored Planned Parenthood.” Rounds I, 530 F.3d at 729. The Eighth Circuit reversed the district court, finding that, at the preliminary injunction stage, Planned Parenthood's evidence did not establish a likelihood of proving that the Human Being disclosure was untruthful, misleading, or irrelevant, and thus, it would not establish that it is unconstitutional. Id. at 738.

         In Rounds II, Planned Parenthood appealed the district court's grant of summary judgment in favor of South Dakota on the constitutionality of the Human Being disclosure, and the Eighth Circuit affirmed. Rounds II, 653 F.3d at 668. The Eighth Circuit agreed with the previous ruling in Rounds I that the Human Being disclosure was not facially unconstitutional because the disclosure, when read together with the statutory definition of “human being, ” conveys scientific and factual information and would not “present an undue burden ‘in a large fraction of the cases in which [it] is relevant.' ” Id. at 668 (quoting Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 895 (1992)).

         In Rounds III, the Eighth Circuit granted rehearing en banc solely on the constitutionality of the Suicide disclosure. Rounds III, 686 F.3d at 893. To find that the Suicide disclosure was an undue burden or compelled speech, Planned Parenthood had to show that the disclosure was “either untruthful, misleading, or not relevant to the patient's decision to have an abortion.” Id. (quoting Rounds I, 530 F.3d at 735). The Eighth Circuit ultimately concluded that the Suicide disclosure was truthful and was not misleading or irrelevant to a woman's decision to have an abortion. Rounds III, 686 F.3d at 899, 904.

         In 2011, plaintiffs filed this lawsuit against defendants under 42 U.S.C. § 1983 challenging the constitutionality of South Dakota H.B. 1217, 2011 Leg. Reg. Sess. (S.D. 2011), to be codified in South Dakota Codified Laws Chapter 34-23A. Docket 25. The court later granted intervenors' Motion to Intervene. Docket 54. Plaintiffs allege that H.B.1217 violates the First Amendment's Free Speech Clause and the Fourteenth Amendment's Due Process Clause and Equal Protection Clause. There are four parts to H.B. 1217: (1) The Pregnancy Help Center Requirements; (2) The 72-Hour Requirement; (3) The Risk Factors Requirement; and (4) The Coercion Provisions. In summary, 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 established at least a 72-hour waiting period between the pregnant woman's initial consultation with her physician and the scheduled abortion. The Coercion Provisions impose a duty on the physician to certify that the pregnant woman has not been “coerced” as defined in H.B. 1217. Finally, the Risk Factors Requirement established what information the physician must tell a pregnant woman about “complications associated with abortion.”

         Two of the requirements addressed in the Rounds decisions are addressed in intervenors' motion. First, SDCL § 34-23A-10.1(1)(b) required plaintiffs, prior to obtaining a consent, to disclose in writing “[t]hat the abortion will terminate the life of a whole, separate, unique, living human being.” The term “human being” was narrowly defined as “an individual living member of the species Homo sapiens.” Id. Second, SDCL § 34-23A-10.1 required plaintiffs to disclose that “increased risk of suicide ideation and suicide” is a risk factor of obtaining an abortion. Thus, intervenors move for an order barring “[p]laintiffs from relitigating two facts which were definitively resolved between the same parties” in the prior Rounds litigation. Docket 160 at 1. Intervenors claim that the two decided facts were (1) that an “abortion will terminate the life of a whole, separate, unique, living human being”, and (2) that an abortion places a woman at “increased risk of suicide ideation and suicide.” Id. at 1-2. Plaintiffs resist the motion because they ensure the court that they are not attempting to relitigate the constitutionality of the Human Being disclosure and Suicide disclosure and contend that this motion is unnecessary. Docket 187. Defendants are “satisfied that plaintiffs are not attempting to relitigate the truthfulness or constitutionality of the mandatory disclosures.” Docket 175 at 1-2.

         LEGAL STANDARD

         “Res Judicata incorporates the concepts of both issue preclusion and claim preclusion.” Sandy Lake Band of Miss. Chippewa v. United States, 714 F.3d 1098, 1102 (8th Cir. 2013)(citing to Taylor v. Sturgell, 553 U.S. 880, 892 (2008)). “Issue preclusion refers to the effect of a judgment in foreclosing relitigation of a matter that has been litigated and decided.” Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 77 n.1 (1984). A party may not relitigate such a matter in a later case, “whether or not the issue arises on the same or a different claim.” New Hampshire v. Maine, 532 U.S. 742, 748-49 (2001) (citing Restatement (Second) of Judgments §§ 17, 27 (1980); D. Shapiro, Civil Procedure: Preclusion in Civil Actions 32, 46 (2001)). Issue preclusion has five elements:

(1) the party sought to be precluded in the second suit must have been a party, or in privity with a party, to the original lawsuit; (2) the issue sought to be precluded must be the same as the issue involved in the prior action; (3) the issue sought to be precluded must have been actually litigated in the prior action; (4) the issue sought to be precluded must have been determined by a valid and final judgment; and (5) the determination in the prior action must have been essential to the prior judgment.

Anderson v. Genuine Parts Co., Inc., 128 F.3d 1267, 1273 (8th Cir. ...


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