Planned Parenthood Minn. v. Rounds

• Decision Date: 02 September 2011
• Docket Number: 09–3362.,09–3233,Nos. 09–3231,s. 09–3231
• Citation: 653 F.3d 662
• 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/Cross Appellees.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, Amici Curiae.

653 F.3d 662

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/Cross Appellees.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, Amici Curiae.

Nos. 09–3231

09–3233

09–3362.

United States Court of Appeals, Eighth Circuit.

Submitted: Jan. 11, 2011.Filed: Sept. 2, 2011.

OPINION TEXT STARTS HEREWest CodenotesHeld UnconstitutionalSDCL § 34–23A–10.1(1)(e)(ii)Negative Treatment ReconsideredSDCL § 34–23A–10.1(1)(c, d) John P. Gugin, AAG, argued, Patricia J. DeVaney, AAG, on the brief, Pierre, SD, for Appellants/Cross Appellees, Mike Rounds, Governor, and Marty J. Jackley, Attorney General, and Alpha Center, et al.Harold J. Cassidy, argued, Shrewsbury, NJ, Robert W. Ruggieri, Thomas J. Viggiano, Derek M. Cassidy, Shrewsbury, NJ, Jeremiah D. Murphy, Sioux Falls, SD, on the brief, for Appellants/Cross Appellees, Alpha Center, et al.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, Planned Parenthood, et al.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.Before MURPHY, MELLOY, and GRUENDER, Circuit Judges.MURPHY, Circuit Judge.

Planned Parenthood of Minnesota, North Dakota, South Dakota and its medical director Dr. Carol E. Ball (collectively Planned Parenthood) brought this equitable action against Governor Mike Rounds and the South Dakota Attorney General ¹ (collectively South Dakota) in their official capacities seeking to enjoin enforcement of revisions enacted in 2005 to the South Dakota law on informed consent to abortion. Alpha Center and Black Hills Crisis Pregnancy Center, crisis pregnancy centers located in South Dakota, and their individual staff members intervened. In 2008 our court sitting en banc reversed a preliminary injunction granted to Planned Parenthood in the district court and remanded for further consideration.² On remand the district court granted summary judgment on four statutory provisions challenged by Planned Parenthood, upholding some and striking down others as unconstitutional under the First and Fourteenth Amendments. Planned Parenthood, South Dakota, and the intervenors appeal. After careful consideration of the individual statutory provisions and the arguments of the interested parties, we affirm in part and reverse in part.

I.

In 2005 South Dakota enacted House Bill 1166 (the Act) which is the subject of this action. The Act amended South Dakota's Public Health and Safety Code, expanding the requirements for informed consent to abortion. Under § 7 of the Act, each woman contemplating abortion is to be given oral advisories ³ twenty four hours in advance of the procedure by the doctor scheduled to perform the abortion or by the doctor's designee. The doctor must give other written advisories at least two hours before the procedure.

The written advisories required by § 7(1) are to inform the patient

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

(c) That [the patient] 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 [collectively the relationship advisories].

S.D.C.L. § 34–23A10.1(1)(b)–(d). The advisory must further contain “[a] description of all known medical risks of the procedure” (the risk advisory). Id. § 34–23A–10.1(1)(e). That description must include “[i]ncreased risk of suicide ideation and suicide” as a known risk of abortion (the suicide advisory). Id. § 34–23A–10.1(1)(e)(ii). The Act also requires doctors to provide patients with the name, address, and telephone number of a nearby crisis pregnancy center twenty four hours before the scheduled procedure. Id. § 34–23A–10.1(2)(c).⁴

After the patient has read the written portion of the required communications, § 7 requires that she sign each page of the statement verifying that she has understood all the information provided. Id. § 34–23A–10.1(1) ¶ 2. If she asks about any of the required advisories or has any other significant question, the doctor must respond in writing. Id. That response becomes part of the patient's permanent medical record. Id. Once all of the required communications have been made, the doctor must certify that the patient “understands the information imparted.” Id. A doctor who performs an abortion without meeting these requirements is subject to criminal prosecution. Id. § 34–23A–10.2 ¶ 1.

Before the Act was scheduled to take effect in 2005, Planned Parenthood brought its facial challenge to the constitutionality of the statute under the First and Fourteenth Amendments. It moved for a preliminary injunction enjoining its enforcement. The district court held in Planned Parenthood Minnesota, North Dakota, South Dakota v. Rounds, 375 F.Supp.2d 881 (D.S.D.2005), that the human being advisory violated doctors' First Amendment rights on its face and that invalidation of any portion of the Act required injunctive relief. While a divided panel of this court affirmed, 467 F.3d 716 (8th Cir.2006), its decision was overturned by the en banc court which reversed, holding that the required human being advisory did not on its face violate the First Amendment. Planned Parenthood Minn., N.D., S.D. v. Rounds, 530 F.3d 724, 735–36 (8th Cir.2008) (en banc). It vacated the preliminary injunction and remanded to the district court for resolution of Planned Parenthood's other facial challenges to the Act. Id. at 738.

On remand South Dakota and the intervenors moved for summary judgment in their favor as to the human being advisory, the relationship advisories, the suicide advisory, and the risk advisory. Planned Parenthood in turn moved for summary judgment in its favor as to the latter three provisions, as well as two others not at issue on appeal. The district court granted summary judgment in favor of South Dakota on the human being and risk advisories and in favor of Planned Parenthood on the relationship and suicide advisories. South Dakota and the intervenors ⁵ now appeal the rulings in Planned Parenthood's favor, and Planned Parenthood cross appeals the rulings in South Dakota's favor.

II.

On appeal from a district court's grant of summary judgment we review findings of fact for clear error and conclusions of law de novo. Royer v. City of Oak Grove, 374 F.3d 685, 687 (8th Cir.2004).

A.

Planned Parenthood continues to challenge a provision that the en banc court has already upheld in Planned Parenthood Minn., N.D., S.D. v. Rounds, 530 F.3d 724, 737 (8th Cir.2008), as did the district court on our subsequent remand. 650 F.Supp.2d 972, 976 (D.S.D.2009). This provision is in section 7(1)(b) which requires doctors to provide patients with certain advisories which include a written statement “with the following information: ... That the abortion will terminate the life of a whole, separate, unique, living human being.” S.D.C.L. § 34–23A–10.1(1)(b). A separate code section defines a human being 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.” Id. § 34–23A–1(4). To comply with § 7, a doctor must certify in writing that he or she believes that the woman understands this statement. Id. § 34–23A–10.1 ¶ 2.

The human being advisory requires that the pregnant woman be told that an abortion will “terminate the life of a whole, separate, unique, living human being.” The en banc court held that this provision withstood a First Amendment challenge because it must be read together with the Act's definition of human being. 530 F.3d at 735. Because “human being” has only a “narrow, species-based” meaning in this context, the advisory conveys “scientific[ ] and factual [ ]” information that “should be clear in context to a physician.” Id. at 736. Planned Parenthood now argues that in focusing on the statutory definition of “human being” in § 34–23A–1(4), Rounds implicitly held that South Dakota may not compel doctors to use the exact language of the human being advisory contained in § 34–23A–10.1(1)(b). South Dakota responds that Rounds upheld that human being advisory unconditionally.

It is significant here that Planned Parenthood has challenged § 7 on its face, not as applied to any particular party or circumstance. Our court has recognized that facial challenges to abortion statutes can succeed only if a plaintiff can show that “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.” Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 895, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). This standard is somewhat different than that applicable to facial challenges in general, where the proponent must establish that “no set of circumstances exists under which the [statute] would be valid.” United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). Our court has joined...