Planned Parenthood v. Rounds

In Roe v. Wade, 410 U.S. 113 (1973), the United States Supreme Court held that the United States Constitution protects a woman's right to choose to have an abortion without being subject to excessive government restrictions.[5] The Court-based this right in the fundamental "right to privacy" which it found to be inherent to the Due Process Clause of the Fourteenth Amendment.[5][6] Per Roe, a women's right to an abortion must be balanced against the government's legitimate interests in protecting women's health and the "potentiality of human life" (i.e., a fetus).[7]

Almost twenty years after Roe, the Supreme Court issued its next major abortion decision in a case challenging a Pennsylvania statute that imposed—among other requirements—mandatory waiting periods, spousal notice, and parental consent for minors seeking abortions.[8] In Planned Parenthood v. Casey, 505 U.S. 833 (1992), the Court reaffirmed the constitutional right to have an abortion, as established in Roe v. Wade, but changed the standard employed to evaluate restrictions on that right.[8] The Supreme Court created the "undue burden" standard for abortion restrictions, whereby a restriction is deemed impermissible if "its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability."[9]

In 2005, the South Dakota legislature enacted House Bill 1166, which revised the requirements for obtaining patients' informed consent to an abortion by expanding the law's disclosure requirements. The law was set to go into effect on July 1, 2005, and subjected abortion providers to the risk of criminal prosecution if they did not meet the statutory requirements.[10]

The bill required physicians who perform abortions to inform abortion-seeking patients, in writing, that "the abortion will terminate the life of a whole, separate, unique living being,"[11] that "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,"[12] and that "by having an abortion, her existing relationship and her existing constitutional rights with regards to that relationship will be terminated" (relationship disclosures).[13] The law further required a physician performing an abortion to "certify in writing" that he or she had made all of the state-mandated disclosures and that the "physician is, to the best of his or her ability, satisfied that the pregnant woman has read" the state-mandated disclosures and that "the physician believes she understands the information imparted."[2] The South Dakota law also forced the pregnant woman to "sign[] each page of the written disclosure with the certification that she has read and understands all of the disclosures."[14]

Doctors were prohibited from performing an abortion unless the doctor provided her patient that with a list of "all known medical risks of the procedure and statistically significant risk factors to which the pregnant woman would be subjected, including:...[i]ncreased risk of suicide ideation and suicide" (medical risk disclosures/suicide advisory).[15] The law also stated that a physician may not perform a medically emergent abortion to which a pregnant woman has not consented "unless the physician determines that obtaining an informed consent is impossible due to a medical emergency and further determines that delaying in performing the procedure until an informed consent can be obtained from the pregnant woman or her next of kin in accordance with chapter 34-12C is impossible due to the medical emergency" (medical emergency exception).[2]

Planned Parenthood of Minnesota, North Dakota, South Dakota along with its medical director Dr. Carol E. Ball (hereinafter collectively "Planned Parenthood") challenged the South Dakota law in a lawsuit filed with the District Court for the District of South Dakota, asking the district court to declare the contested provisions unconstitutional and to grant injunctive relief precluding enforcement of those provisions.[3] Planned Parenthood argued that various provisions of the South Dakota law constituted an undue burden on abortion rights, facially violated patents' and physicians' First Amendment rights, and were unconstitutionally vague.[3] Planned Parenthood believed that the amendments to South Dakota's notice law forced abortion providers to convey the state of South Dakota's ideology and philosophical beliefs regarding abortion, in violation of their First and Fourteenth Amendment rights.[3] Planned Parenthood also argued that the law violated pregnant women's First and Fourteenth Amendment rights by forcing them to listen to and understand the state's anti-abortion beliefs.[3] Planned Parenthood further contended that the state violated pregnant women's Fourteenth Amendment right to privacy and liberty by forcing them to listen to and certify an understanding of untrue and misleading information about abortion, and that this amounted to an undue burden on women's right to choose an abortion.[3] Plaintiff finally argued that other provisions in the statute were impermissibly vague, in violation of the Fourteenth Amendment's due process clause, and that the law's health exception was inadequate.[3]

The district court preliminarily enjoined the Act, preventing the statute from taking effect.[16] The district court found that the informed consent provisions contained in the challenged South Dakota law went "much further than the informed consent statute upheld in Casey, and other cases reviewing similar statutes."[17] The district court held that the mandated disclosures were not a reasonable regulation of the medical profession, and instead violated the physicians' First Amendment rights "by compelling them to espouse the state's ideology" "on an unsettled medical, philosophical, theological, and scientific issue."[18] The district court found it significant that the statute lacked a provision expressly allowing a physician to disassociate herself from the required disclosures (which had been a feature of a similar North Dakota law).[19] The district court granted a preliminary injunction based on its finding that Planned Parenthood had a fair chance of success on its claim that the law violated physicians' free speech rights, and that the balance of the harms came out in Planned Parenthood's favor.

On July 26, 2005, the state, along with crisis pregnancy centers that had intervened in the case, appealed the district court's preliminary injunction to the Eighth Circuit.[20] A divided panel of the Eighth Circuit affirmed the lower court's decision to grant the preliminary injunction.[21] The defendants and intervenors then petitioned the Eighth Circuit for a re-hearing en banc, which the Eighth Circuit granted.

The Eighth Circuit, sitting en banc, vacated the preliminary injunction and remanded the case to the district court for future proceedings.[22] The Eighth Circuit found that Planned Parenthood had failed to demonstrate the requisite likelihood of success on its claim that the statutorily-required disclosure was untruthful and misleading. As part of its holding, the Eighth Circuit clarified that "where a preliminary injunction of a duly enacted state statute is sought, we require a more rigorous threshold showing that the movant is likely to prevail on the merits."[23] The Eighth Circuit stated that Planned Parenthood could only succeed on the merits of its claim that the law violated the First Amendment if it showed that the required disclosures were untruthful, misleading, or not relevant to the pregnant woman's decision to abort.[24] The Eighth Circuit found that the district court had based its conclusion "on an error of law when it ignored the statutory definition of 'human being.'"[25]

On remand to the district court, all sides moved for summary judgment with respect to the challenged provisions.[26] The district court issued rulings on the biological disclosure, the relationship disclosures, the medical risk disclosures, and the medical emergency exception.

The biological disclosure was the statutory requirement that a doctor tell a pregnant patient "[t]hat the abortion will terminate the life of a whole, separate, unique, living human being."[11] Although defendants' oral argument and Judge Gruender's dissent in the initial Eighth Circuit opinion both suggested that the statute did not require doctors to dictate the statute verbatim to their patients, the district court was bound to follow the Eighth Circuit's en banc opinion which stated that the disclosure had to consist of the language laid out in the statute.[27] The district court, therefore, found that prior to performing an abortion, a doctor must recite the biological disclosure outlined in the statute.[27]

The South Dakota statute mandated two relationship disclosures. Physicians were required to tell a pregnant patient that she had an existing "relationship" with an unborn human being which was protected by the U.S. Constitution and South Dakota law, and that procuring an abortion would end that existing "relationship."[28] The statute did not define the term "relationship" and the state had conceded in an earlier proceeding that the term was used in a legal—not biological—context.[29] The district court found that the legal definition of a relationship requires at least two people. Furthermore, the U.S. Constitution does not comprehend an embryo or fetus to be a "person," in the legal sense of that word.[30] In fact, the district court noted that in Roe v. Wade, which remained controlling precedent, the Supreme Court stated that "the word 'person,' as used in the Fourteenth Amendment, does not include the unborn" and that "the unborn have never been recognized in the law as persons in the whole sense."[30] South Dakota similarly had not established that an embryo or fetus was a "person" in the context of a legal relationship with a pregnant woman.[31] The district court thus found the relationship disclosures to be untruthful and misleading, and thus unconstitutional.[31]

The medical risk disclosures mandated by the statute required a physician to tell a patient of "all known medical risks of the procedure and statistically significant risk factors to which the pregnant woman would be subjected, including ... (ii) Increased risk of suicide ideation and suicide."[32] Although the district court found the "all known medical risks" phrase constitutional on its face, since an individual could ascertain the meaning of that phrase in order to comply with it, the district court found the phrase "statistically significant risk factors" unconstitutionally vague because its meaning was not readily ascertainable.[33] Following common cannons of statutory construction, the district court reasoned that the statute dictated that physicians inform patients of medical risks caused by abortions.[34] Because no party presented evidence that proved that it was a generally recognized fact that abortions cause an increased risk of suicide ideation and suicide, the district court found the mandated disclosure of that "risk" to be untruthful and misleading, and thus unconstitutional.[35]

The medical emergency exception is found in the portion of the statutes that required the physician to obtain the informed consent of the pregnant woman unless it is impossible due to do so due to a medical emergency and where delaying the procedure in order to get consent from the woman's next of kin is similarly impossible. The district court dismissed the defendants' argument that the plaintiffs lacked standing to sue on this matter, citing controlling precedent which gave abortion doctors standing to challenge a statute that might subject them to criminal prosecution.[36] The district court further concluded that the physician plaintiffs had third-party standing. The district court nevertheless found the emergency medical exception to be constitutional on its face.[37]

In summary, the District Court granted summary judgement in favor of Planned Parenthood on the relationship and suicide advisories—which it struck down as unconstitutional under the First and Fourteenth Amendments—and summary judgement in favor of South Dakota on the human being and risk advisories.

South Dakota and the intervening crisis pregnancy centers appealed the District Court's rulings in Planned Parenthood's favor, and Planned Parenthood cross appealed the rulings in South Dakota's favor.[38]

On appeal, the Eighth Circuit panel rejected Planned Parenthood's facial challenge to the human being advisory contained within the statute's relationship disclosures. The panel said that an as-applied challenge would be the only appropriate means for a court to consider whether a doctor would be permitted to use language other than that detailed in the advisory.[39] The Eighth Circuit also rejected Planned Parenthood's allegation that the relationship disclosure unconstitutionally forced doctors to convey moral and philosophical messages regarding abortion. Instead, the Eighth Circuit adopted the reading proposed by South Dakota, holding that the relationship disclosure merely informed a woman that she "is legally and constitutionally protected against being forced to have an abortion."[40] The Eighth Circuit described this reading of the statute to be "truthful, not misleading, and relevant to the abortion decision," and thus constitutional.[41] The Eighth Circuit rejected Planned Parenthood's broad challenge to the medical risk disclosure as being void for vagueness, reasoning that a doctor of ordinary intelligence could figure out how to comply with the statute.[42] The Eighth Circuit panel, however, did agree with the district court and Planned Parenthood on the unconstitutionality of the suicide advisory that formed part of the medical risk disclosure. The Eighth Circuit found the suicide advisory to be compelled untruthful speech, which placed an undue burden on women's due process right to voluntary abortion and violated physicians' "First Amendment right to be free from compelled speech that is untruthful, misleading, or irrelevant."[42]

The defendants and the intervening crisis pregnancy centers then petitioned for a rehearing en banc. The rehearing en banc was "limited to the issue of whether the district court erred in enjoining the provisions of South Dakota Century Law 34–23A–10.1(1)(e)(ii) dealing with the suicide advisory."[43]

Judge Loken wrote a brief concurrence in which he noted that he agreed with the dissent that the plain language of the statute regarding the medical risks disclosure "strongly suggest[ed] legislative intent to require that a physician make an untruthful, misleading causation disclosure."[57] Nevertheless, Judge Loken joined the majority because he read the Eighth Circuit's decision as limiting the facial constitutionality of the statute to "only a disclosure as to relative risk that the physician can adapt to fit his or her professional opinion of the conflicting medical research" regarding abortion.[57]

Judge Colloton wrote a brief concurrence which almost exclusively endorsed the en banc panel's opinion. Judge Colloton's only disagreement with the majority opinion was that he found "it unnecessary to consider the meaning of the hypothetical phrase 'a description of all known medical risks of the procedure...to which the pregnant women would be subjected.'"[57]