63 F.3d 1452 (8th Cir. 1995), 94-3326, Planned Parenthood, Sioux Falls Clinic v. Miller

Docket Nº:94-3326SD, 94-3398SD.
Citation:63 F.3d 1452
Party Name:PLANNED PARENTHOOD, SIOUX FALLS CLINIC; Buck J. Williams, M.D.; and Women's Medical Services, P.C., Appellees/Cross-Appellants, v. Walter D. MILLER, Governor, in his Official Capacity, and Mark W. Barnett, Attorney General, in his Official Capacity, Appellants/Cross-Appellees.
Case Date:August 31, 1995
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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63 F.3d 1452 (8th Cir. 1995)


M.D.; and Women's Medical Services, P.C.,



Walter D. MILLER, Governor, in his Official Capacity, and

Mark W. Barnett, Attorney General, in his Official

Capacity, Appellants/Cross-Appellees.

Nos. 94-3326SD, 94-3398SD.

United States Court of Appeals, Eighth Circuit

August 31, 1995

Submitted May 15, 1995.

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John P. Guhin, Pierre, SD, argued (Janine Kern, Frank Geaghan and Robert Mayer, on the brief), for appellants.

Dara Klassel, New York City, argued (Beth Otten, Roger K. Evans and Michael B. Crew, on the brief), for appellees.

Before RICHARD S. ARNOLD, Chief Judge, JOHN R. GIBSON, Senior Circuit Judge, and FAGG, Circuit Judge.


The Governor and Attorney General of South Dakota ("the State") appeal from a District Court 1 ruling that the parental-notice provision of its abortion law is unconstitutional on its face because it fails to provide a bypass mechanism to allow mature and "best interest" minors to proceed with an abortion without notifying a parent. The State also appeals the District Court's holding that its provisions for civil and criminal penalties for performing illegal abortions are unconstitutional because they lack a scienter requirement. In the alternative, the State asks us to certify to the South Dakota Supreme Court the issue of whether that court would interpret the civil- and criminal-penalty provisions to include scienter requirements.

Planned Parenthood, Sioux Falls Clinic, Dr. Buck Williams, and Women's Medical Services (collectively, "Planned Parenthood") cross-appeal the District Court's ruling that South Dakota may constitutionally require physicians to provide certain information to all abortion patients 24 hours before the abortion is performed. They also argue that the constitutional provisions of the South Dakota law are not severable from the unconstitutional criminal- and civil-penalties provisions, and that the District Court erred in not striking the challenged Act in its entirety.

We affirm in all respects.


After South Dakota amended its abortion law in 1993, Planned Parenthood challenged the amended Act as facially unconstitutional. South Dakota's Act to Regulate the Performance of Abortion, S.D.Codified Laws Ann. Sec. 34-23A-1 et seq., amended by 1993 S.D.Laws ch. 249, restricts a woman's choice to have an abortion in several ways. Section 34-23A-7, the parental-notice provision, requires a physician or his agent to notify a pregnant minor's parent of the impending abortion 48 hours before the abortion is to be performed. 2 Section 34-23A-10.1, the mandatory-information

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provision, provides that no abortion may be performed unless certain information is provided to the patient at least 24 hours beforehand. 3 Section 34-23A-22 provides for civil damages when an abortion is performed in violation of the medical-emergency provision, 4 the parental-notification provision, or the mandatory-information provision. 5 And Section 34-23A-10.2 makes

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it a misdemeanor for a physician to violate the same provisions of the Act. 6

Since 1973, the Supreme Court has recognized that women have a fundamental constitutional right to choose whether to terminate or continue their pregnancies. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). This right is not absolute or unqualified; instead, the woman's right to decide whether or not to carry her pregnancy to term is balanced by the State's interest in protecting both her health and the potential life of the fetus. Id. at 162, 93 S.Ct. at 731. After the fetus becomes viable--able to survive outside the womb--the State's interest in protecting its potential life becomes compelling enough in some circumstances to outweigh the woman's right to seek an abortion. Planned Parenthood of Southeastern Pennsylvania v. Casey, --- U.S. ----, ----, 112 S.Ct. 2791, 2804, 120 L.Ed.2d 674 (1992). 7 Before viability, however, "the State's interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman's effective right to elect the procedure." Ibid. The State can impose regulations designed to ensure that the woman makes a thoughtful and informed choice, but only if such regulations do not unduly burden her right to choose whether to abort. Id. at ----, 112 S.Ct. at 2818.

Planned Parenthood claims that South Dakota's regulations unduly burden a woman's right to choose. The State of South Dakota counters that its regulations merely ensure that the woman's choice is informed and thoughtful. On cross-motions for summary judgment, the District Court held that the parental-notice, civil-damages, and criminal-penalty provisions of South Dakota's abortion law place an undue--and thus unconstitutional--burden on a woman's right to privacy, but that the mandatory-information provision does not. Both parties appeal.


The critical issue in this case is a threshold one: what is the standard for a challenge to the facial constitutionality of an abortion law? The State would have us apply the test set out in United States v. Salerno, 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987), under which "the challenger must establish that no set of circumstances exists

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under which the Act would be valid." Salerno, 481 U.S. at 745, 107 S.Ct. at 2100. Planned Parenthood, on the other hand, contends that the Supreme Court replaced the Salerno test in Casey, --- U.S. ----, 112 S.Ct. 2791. Under Casey, it claims, an abortion law is unconstitutional on its face if, "in a large fraction of the cases in which [the law] is relevant, it will operate as a substantial obstacle to a woman's choice to undergo an abortion." Id. at ----, 112 S.Ct. at 2830.

The Supreme Court had previously applied Salerno in striking down facial challenges to abortion laws. See Rust v. Sullivan, 500 U.S. 173, 182-84, 111 S.Ct. 1759, 1766-68, 114 L.Ed.2d 233 (1991); Webster v. Reproductive Health Services, 492 U.S. 490, 524, 109 S.Ct. 3040, 3059-60, 106 L.Ed.2d 410 (1989). But a majority of the Court in Casey applied a different test--the one Planned Parenthood advocates here--in determining that Pennsylvania's spousal-notification law was facially invalid. Chief Justice Rehnquist highlighted this departure in his dissent in Casey, arguing that "it is insufficient for petitioners to show that the [spousal] notification provision 'might operate unconstitutionally under some conceivable set of circumstances.' " Casey, --- U.S. at ----, 112 S.Ct. at 2870 (quoting Salerno, 481 U.S. at 745, 107 S.Ct. at 2100). The majority made no response to this contention. Indeed, even though the joint opinion's authors "carefully reviewed and selectively departed from other earlier precedent," Fargo Women's Health Org. v. Schafer, 18 F.3d 526, 529 (8th Cir.1994), they did not expressly reject Salerno, even though applying a test incompatible with it.

Other circuits have split on the question whether Casey effectively overruled Salerno for abortion cases. The Third Circuit believes that the Supreme Court "set a new standard for facial challenges to pre-viability abortion laws." Casey v. Planned Parenthood, 14 F.3d 848, 863 n. 21 (3d Cir.1994) (on remand) (dicta). The Fifth Circuit, however, refused to "interpret Casey as having overruled, sub silentio, longstanding Supreme Court precedent governing challenges to the facial constitutionality of statutes," and it continues to apply the Salerno standard. Barnes v. Moore, 970 F.2d 12, 14 & n. 2 (5th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 656, 121 L.Ed.2d 582 (1992).

Indeed, even the Justices of the Supreme Court dispute Casey 's effect. Justice Scalia, joined by Chief Justice Rehnquist and Justice White, has stated that the only exception to the Salerno standard is for First Amendment cases, and "[t]he Court did not purport to change this well-established rule [in Casey ]." Ada v. Guam Soc'y of Obstetricians & Gynecologists, --- U.S. ----, ----, 113 S.Ct. 633, 634, 121 L.Ed.2d 564 (1992) (Scalia, J., dissenting from the denial of certiorari). But Justice O'Connor, joined by Justice Souter, has emphasized that the Supreme Court in Casey "did not require petitioners to show that the provision would be invalid in all circumstances. Rather, we made clear that a law restricting abortions constitutes an undue burden, and hence is invalid, if, 'in a large fraction of the cases in which [the law] is relevant, it will operate as a substantial obstacle to a woman's choice to undergo an abortion.' " Fargo Women's Health Org. v. Schafer, --- U.S. ----, ----, 113 S.Ct. 1668, 1669, 123 L.Ed.2d 285 (1993) (O'Connor, J., concurring in the denial of a stay pending appeal).

We cannot know how the Supreme Court will ultimately resolve this issue, but we must now decide it for ourselves. We were able to avoid the issue of which standard to follow in Fargo Women's Health Organization v. Schafer, supra, 18 F.3d 526. The result in that case would have been the same no matter which test was applied. Id. at 529-30, 532-33. Here, though, Planned Parenthood cannot meet the Salerno test, for circumstances exist under which the South Dakota law would be constitutional--its restrictions, for example, would be quite valid after a pregnancy had progressed past the point of viability. But Planned Parenthood could meet Casey's undue-burden test if, for example, the parental-notice law would be a substantial obstacle to a "large fraction" of minor women seeking pre-viability abortions. Thus, the standard we choose to follow today may well determine the outcome of this case.

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