Planned Parent. Mn, N. Dakota, S. Dakota v. Rounds

• Citation: 530 F.3d 724
• Decision Date: 27 June 2008
• Docket Number: No. 05-3093.,05-3093.
• Parties: PLANNED PARENTHOOD MINNESOTA, NORTH DAKOTA, SOUTH DAKOTA; Carol E. Ball, M.D., Appellees, v. Mike ROUNDS, Governor, in his official capacity; Larry Long, Attorney General, in his official capacity, Appellants, Alpha Center; Black Hills Crisis Pregnancy Center, doing business as Carenet; Dr. Glenn A. Ridder, M.D.; Eleanor D. Larsen, M.A., LSWA, Intervenors on Appeal.
• Court: U.S. Court of Appeals — Eighth Circuit

530 F.3d 724

PLANNED PARENTHOOD MINNESOTA, NORTH DAKOTA, SOUTH DAKOTA; Carol E. Ball, M.D., Appellees, v. Mike ROUNDS, Governor, in his official capacity; Larry Long, Attorney General, in his official capacity, Appellants Alpha Center; Black Hills Crisis Pregnancy Center, doing business as Carenet; Dr. Glenn A. Ridder, M.D.; Eleanor D. Larsen, M.A., LSWA, Intervenors on Appeal.

No. 05-3093.

United States Court of Appeals, Eighth Circuit.

Submitted: April 11, 2007.

Filed: June 27, 2008.

John P. Guhin, AAG, argued, Patricia J. DeVaney and Bobbi J. Rank, on the brief, Pierre, SD, for appellant.

Timothy E. Branson, argued, Steven D. Bell and Michael R. Drysdale, on the brief, Minneapolis, MN, for appellees.

Harold J. Cassidy, argued, Robert W. Ruggieri and Thomas J. Viggiano, III, Shrewsbury, NJ, Jeremiah D. Murphy, on the brief, Sioux Falls, SD, for Intervenors.

Benjamin W. Bull and Jordan W. Lorence, on the brief, Scottsdale, AZ, for amicus parties.

Before, LOKEN, Chief Judge, WOLLMAN, MURPHY, BYE, RILEY, MELLOY, SMITH, COLLOTON, GRUENDER, BENTON and SHEPHERD, Circuit Judges, en banc.

GRUENDER, Circuit Judge.

The Governor and Attorney General of South Dakota ("the State"), along with the intervenor crisis pregnancy centers, appeal the district court's preliminary injunction preventing the 2005 version of South Dakota's statute regulating informed consent to abortion from becoming effective. For the reasons discussed below, we vacate the preliminary injunction and remand to the district court for further proceedings.

I.

In 2005, South Dakota enacted House Bill 1166 ("the Act"), amending the requirements for obtaining informed consent to an abortion as codified in S.D.C.L. § 34-23A-10.1. Section 7 of the Act requires the performing physician to provide certain information to the patient as part of obtaining informed consent prior to an abortion procedure and to certify that he or she believes the patient understands the information. The provisions of § 7 relevant to the preliminary injunction are as follows (emphases added):

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, 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, which determinations shall then be documented in the medical records of the patient. A consent to an abortion is not voluntary and informed, unless, in addition to any other information that must be disclosed under the common law doctrine, the physician provides that pregnant woman with the following information:

(1) A statement in writing providing the following information:

(a) The name of the physician who will perform the abortion;

(b) That the abortion will terminate the life of a whole, separate, unique, living human being;

(c) 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;

(d) That by having an abortion, her existing relationship and her existing constitutional rights with regards to that relationship will be terminated;

(e) A description of all known medical risks of the procedure and statistically significant risk factors to which the pregnant woman would be subjected, including:

(i) Depression and related psychological distress;

(ii) Increased risk of suicide ideation and suicide;

* * *

* * *

(2) A statement by telephone or in person, by the physician who is to perform the abortion, or by the referring physician, or by an agent of both, at least twenty-four hours before the abortion, providing the following information:

(a) That medical assistance benefits may be available for prenatal care, childbirth, and neonatal care;

(b) That the father of the unborn child is legally responsible to provide financial support for her child following birth, and that this legal obligation of the father exists in all instances, even in instances in which the father has offered to pay for the abortion;

(c) The name, address, and telephone number of a pregnancy help center in reasonable proximity of the abortion facility where the abortion will be performed; ...

* * *

[¶ 2] Prior to the pregnant woman signing a consent to the abortion, she shall sign a written statement that indicates that the requirements of this section have been complied with. Prior to the performance of the abortion, the physician who is to perform the abortion shall receive a copy of the written disclosure documents required by this section, and shall certify in writing that all of the information described in those subdivisions has been provided to the pregnant woman, that the physician is, to the best of his or her ability, satisfied that the pregnant woman has read the materials which are required to be disclosed, and that the physician believes she understands the information imparted.

In addition, § 8(4) of the Act amended S.D.C.L. § 34-23A-1 to define "Human being" for the purposes of the informed-consent-to-abortion statute as "an individual living member of the species of Homo sapiens, including the unborn human being during the entire embryonic and fetal ages from fertilization to full gestation." A physician who violates the Act knowingly or in reckless disregard is guilty of a Class 2 misdemeanor. S.D.C.L. § 34-23A-10.2.

Planned Parenthood Minnesota, North Dakota and South Dakota and its medical director Carole E. Ball, M.D. (collectively "Planned Parenthood") sued to prevent the Act from taking effect, claiming that the disclosure requirements in § 7(1)(b)-(d) and the physician certification requirement in § 7 ¶ 2 violate physicians' free speech rights; that the disclosure requirements in §§ 7(1)(e)(i)-(ii) and (2)(c) are unconstitutionally vague in that they fail to give physicians adequate notice of the conduct proscribed; that being subjected to the disclosures in § 7(1)(b)-(d) unduly burdens patients' rights to an abortion and violates their free speech rights; and that § 7 unduly burdens patients' right to an abortion because its health exception is inadequate.

In June 2005, Planned Parenthood moved for a preliminary injunction to prevent the Act from taking effect as scheduled on July 1, 2005. In support of the argument that §§ 7(1)(b)-(d) would violate physicians' free speech rights by compelling them to deliver the State's ideological message, rather than truthful and non-misleading information relevant to informed consent to abortion, Planned Parenthood's evidence consisted solely of affidavits from Dr. Ball and bioethicist Paul Root Wolpe, Ph.D. In her affidavit, Dr. Ball described her professional background, including a board certification in obstetrics and gynecology. Without elaboration, Dr. Ball stated that the disclosures in §§ 7(1)(b)-(d) "are statements of ideology and opinion, not medicine or fact." Ball Aff. ¶ 2. Dr. Ball also stated that she would be unable to clarify the disclosures upon a patient's request, as required by § 7, "because these are not medical statements or facts that I am trained as a Medical Doctor to address." Id. ¶ 4. The affidavit made no reference to the Act's definition of "human being" in § 8(4).

Dr. Wolpe's affidavit included a curriculum vitae detailing his expertise in "the area of ideology in medicine and bioethics." Wolpe Aff. ¶ 1. Dr. Wolpe stated that the proposition "that from the moment of conception, an embryo or fetus is a `whole, separate, unique, living human being' ... is not a scientific or medical fact, nor is there a scientific or medical consensus to that effect." Id. ¶¶ 2, 3. Dr. Wolpe further averred that "to describe an embryo or fetus scientifically and factually, one would say that a living embryo or fetus in utero is a developing organism of the species Homo Sapiens which may become a self-sustaining member of the species if no organic or environmental incident interrupts its gestation." Id. ¶ 6.

In its opposition to the motion for preliminary injunction, the State introduced portions of the Act's legislative history¹ and several affidavits. The legislative history includes testimony from several women who had obtained abortions in South Dakota and felt their decisions would have been better informed if they had received from their abortion providers the information required by § 7. In addition, the legislative history includes testimony from experts such as Marie Peeters-Ney, M.D., a physician and geneticist, explaining the scientific basis for the disclosure required by § 7(1)(b) that "the abortion will terminate the life of a whole, separate, unique, living human being." Dr. Peeters-Ney testified that use of the term "human being" was accurate because:

Becoming a member of our species is conferred immediately upon conception. At the moment of conception a human being with 46 chromosomes comes into existence. These chromosomes, the organization, the chromosomal pattern is specifically human. The RNA, the messenger protein, the proteins are distinctly human proteins. So this new human being is a member of our species, and humanity is not acquired sometime along the path, it occurs right at conception.

Senate State Affairs Comm. Hearing at 25. Dr. Peeters-Ney also stated that an embryo or fetus is whole in the sense that "[a]ll the genetic information sufficient and necessary to mature, and the information that is needed for this human being's entire life is present at the time of conception"; that it is "separate from the mother" because "[t]he genetic program is totally complete and this human being will mature according to his or her own program";...