Planned Parenthood Minn., N.D., S.D. v. Rounds

• Decision Date: 24 July 2012
• Docket Number: 09–3362.,09–3233,Nos. 09–3231,s. 09–3231
• Citation: 686 F.3d 889
• Court: U.S. Court of Appeals — Eighth Circuit
• Parties: PLANNED PARENTHOOD MINNESOTA, NORTH DAKOTA, SOUTH DAKOTA; Carol E. Ball, M.D., Appellees/Cross Appellants, v. Mike ROUNDS, Governor; Marty J. Jackley, Attorney General, in their official capacities, Appellants/Cross Appellees, Alpha Center; Black Hills Crisis Pregnancy Center, doing business as Care Net; Dr. Glenn A. Ridder, M.D.; Eleanor D. Larsen, M.A., L.S.W.A., Appellants. Christian Medical & Dental Associations; American Association of Pro–Life Obstetricians & Gynecologists; Catholic Medical Association; Physicians for Life; National Association of Pro–Life Nurses; Family Research Council; Care Net; Heartbeat International, Incorporated; National Institute of Family and Life Advocates, Incorporated; Eagle Forum Education and Legal Defense Fund; American College of Pediatricians, Amici Curiae.

686 F.3d 889

PLANNED PARENTHOOD MINNESOTA, NORTH DAKOTA, SOUTH DAKOTA; Carol E. Ball, M.D., Appellees/Cross Appellants,

v.Mike ROUNDS, Governor; Marty J. Jackley, Attorney General, in their official capacities, Appellants/Cross Appellees,Alpha Center; Black Hills Crisis Pregnancy Center, doing business as Care Net; Dr. Glenn A. Ridder, M.D.; Eleanor D. Larsen, M.A., L.S.W.A., Appellants.

Christian Medical & Dental Associations; American Association of Pro–Life Obstetricians & Gynecologists; Catholic Medical Association; Physicians for Life; National Association of Pro–Life Nurses; Family Research Council; Care Net; Heartbeat International, Incorporated; National Institute of Family and Life Advocates, Incorporated; Eagle Forum Education and Legal Defense Fund; American College of Pediatricians, Amici Curiae.

Nos. 09–3231, 09–3233, 09–3362.

United States Court of Appeals,

Eighth Circuit.

Submitted: Jan. 9, 2012.

Filed: July 24, 2012.

John P. Guhin, AAG, argued, Patricia J. DeVaney, AAG, on the brief, Pierre, SD, for appellants/cross-appellees, Mike Rounds, Governor, Marty J. Jackley, Attorney General.

Harold J. Cassidy, argued, Shrewsbury, NJ, Robert W. Ruggieri, Thomas J. Viggiano, III, Derek M. Cassidy, Shrewsbury, NJ, Jeremiah D. Murphy, Sioux Falls, SD, on the brief, for appellants, Alpha Center, Black Hills Crisis Pregnancy Center, Dr. Glenn A. Ridder, and Ms. Eleanor D. Larsen.

Timothy E. Branson, argued, Minneapolis, MN, Michael Drysdale, Minneapolis, MN, Steven D. Bell, Denver, CO, Roger Evans, New York, NY, Mimi Liu, Washington, DC, on the brief, for appellees/cross-appellants, Carol E. Ball, M.D., and Planned Parenthood Minnesota, North Dakota, South Dakota.

Steven H. Aden, on the brief, Washington, DC, for amici curiae, Family Research Council, Care Net, Heartbeat International Inc., and National Institute of Family and Life Advocates, Inc.

Mailee R. Smith, William L. Saunders, Denise M. Burke, on the brief, Washington, DC, for amici curiae, Christian Medical & Dental Associations, American Association of Pro–Life Obstetricians & Gynecologists, Catholic Medical Association, Physicians for Life, and National Association of Pro–Life Nurses.

Before RILEY, Chief Judge, WOLLMAN, LOKEN, MURPHY, BYE, 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 two intervening crisis pregnancy centers and two of their personnel (collectively “Intervenors”), appeal the district court's permanent injunction barring enforcement of a South Dakota statute requiring the disclosure to patients seeking abortions of an “[i]ncreased risk of suicide ideation and suicide,” seeS.D.C.L. § 34–23A–10.1(1)(e)(ii) (“suicide advisory”), and the underlying grant of summary judgment in favor of Planned Parenthood of Minnesota, North Dakota, South Dakota and its medical director Dr. Carol E. Ball (collectively “Planned Parenthood”) that this advisory would unduly burden abortion rights and would violate physicians' First Amendment right to be free from compelled speech. For the reasons discussed below, we reverse.

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 physicians, in the course of obtaining informed consent, to provide certain information to the patient seeking an abortion. In June 2005, Planned Parenthood sued to prevent the Act from taking effect, contending that several of its provisions constituted an undue burden on abortion rights and facially violated patients' and physicians' free speech rights, while other provisions were unconstitutionally vague. After the district court preliminarily enjoined the Act and a divided panel of this court affirmed, this court sitting en banc vacated the preliminary injunction and remanded for further proceedings. See Planned Parenthood Minn., N.D., S.D. v. Rounds, 530 F.3d 724 (8th Cir.2008) (en banc).

On remand, the parties filed cross-motions for summary judgment with respect to the challenged provisions. The district court ruled that a biological disclosure, see§§ 34–23A–10.1(1)(b), 34–23A–1(4), and a medical emergency exception, see§ 34–23A–10.1, were facially sound with respect to the First Amendment and imposed no undue burden, while disclosures regarding the protected relationship between the patient and the unborn child, see§ 34–23A–10.1(1)(c), (d), and the suicide advisory, see§ 34–23A–10.1(1)(e)(ii), failed to meet both constitutional requirements. The district court also held that a requirement to disclose “all known medical risks of the procedure,” see§ 34–23A–10.1(1)(e), was not unconstitutionally vague, but that a requirement to disclose “statistically significant risk factors,” see id., was.

Planned Parenthood appealed the district court's decision on the biological disclosure and the “all known medical risks” disclosure, while the State and Intervenors appealed the district court's decision on the relationship disclosures and the suicide advisory. A panel of this court affirmed unanimously with respect to the biological disclosure and the “all known medical risks” disclosure, reversed unanimously with respect to the relationship disclosures, and affirmed in a divided decision as to the suicide advisory. See Planned Parenthood Minn., N.D., S.D. v. Rounds, 653 F.3d 662 (8th Cir.2011). We granted this rehearing en banc solely on the issue of the suicide advisory.¹

II.

We review a grant of summary judgment de novo. Missouri ex rel. Nixon v. Am. Blast Fax, Inc., 323 F.3d 649, 653 (8th Cir.2003). In addition, we review constitutional challenges and questions of statutory interpretation de novo. McDermott v. Royal, 613 F.3d 1192, 1193 (8th Cir.2010) (per curiam).

Planned Parenthood contends that requiring a physician to present the suicide advisory imposes an undue burden on abortion rights and violates the free speech rights of the physician. “[W]hen the government requires [as part of the informed consent process] ... the giving of truthful, nonmisleading information about the nature of the procedure, the attendant health risks and those of childbirth,” and other information broadly relevant to the decision to have an abortion, it does not impose an undue burden on abortion rights, even if the disclosure “might cause the woman to choose childbirth over abortion.” Planned Parenthood of Se. Penn. v. Casey, 505 U.S. 833, 882–83, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). Moreover, “the physician's First Amendment rights not to speak are implicated, but only as part of the practice of medicine, subject to reasonable licensing and regulation by the State.” Id. at 884, 112 S.Ct. 2791 (citations omitted). Thus, with respect to First Amendment concerns, “while the State cannot compel an individual simply to speak the State's ideological message, it can use its regulatory authority to require a physician to provide truthful, non-misleading information relevant to a patient's decision to have an abortion, even if that information might also encourage the patient to choose childbirth over abortion.” Rounds, 530 F.3d at 734–35;accord Tex. Med. Providers Performing Abortion Servs. v. Lakey, 667 F.3d 570, 576–77 (5th Cir.2012).

In short, to succeed on either its undue burden or compelled speech claims, Planned Parenthood must show that the disclosure at issue “is either untruthful, misleading or not relevant to the patient's decision to have an abortion.” Rounds, 530 F.3d at 735. To evaluate the constitutional merits of the suicide advisory, we will examine first what disclosure actually is required, second whether that disclosure is truthful, and third whether it is non-misleading and relevant to the patient's decision to have an abortion.

III.

Section 34–23A–10.1 requires a physician seeking to perform an abortion to present to the patient:

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

* * *

(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;

* * *

Planned Parenthood argues, and the district court agreed, that subsection (ii) must be construed to require a disclosure of a conclusive causal link between abortion and suicide. See Planned Parenthood Minn., N.D., S.D. v. Rounds, 650 F.Supp.2d 972, 982 (D.S.D.2009). However, no language in subsection (ii), or in the heading of section 10.1(1)(e), refers to such a causal link. “The intent of a statute is determined from what the legislature said, rather than what the courts think it should have said, and the court must confine itself to the language used.” Langdeau v. Langdeau, 751 N.W.2d 722, 727 (S.D.2008) (quoting US W. Commc'ns, Inc. v. Pub. Utils. Comm'n, 505 N.W.2d 115, 123 (S.D.1993)).

Here, the language actually used by the legislature—“medical risks,” “statistically significant risk factors,” “[i]ncreased risk”—denotes risk in a medical context. Moreover, while the heading of subsection (e) refers broadly to “all known medical risks of the [abortion] procedure ... including” those listed in its subsections, the suicide advisory is the only subsection to further incorporate the more precise phrase “[i]ncreased risk.” See§ 34–23A–10.1(1)(e)(ii). Therefore, we must presume that the term “increased risk” has a more precise meaning than the umbrella term “risk” by itself. See Maynard v. Heeren, 563 N.W.2d 830, 835 (S.D.1997) (“[N]o wordage should be found to be surplus. No provision can be left without meaning. If possible, effect should be given to every part and every word.” (quoting Cummings v. Mickelson, 495 N.W.2d 493, 500 (S.D.1993))); see also FCC v. AT & T Inc., ––– U.S. ––––, 131 S.Ct. 1177, 1183, 179 L.Ed.2d 132 (2...