Planned Parenthood Minn. v. Daugaard

Decision Date30 June 2011
Docket NumberCIV. 11-4071-KES
PartiesPLANNED PARENTHOOD MINNESOTA, NORTH DAKOTA, SOUTH DAKOTA, and CAROL E. BALL, M.D.,Plaintiffs, v. DENNIS DAUGAARD, Governor, MARTY JACKLEY, Attorney General, DONEEN HOLLINGSWORTH, Secretary of Health, Department of Health, and ROBERT FERRELL, President, Board of Medical and Osteopathic Examiners, in their official capacities, Defendants.
CourtU.S. District Court — District of South Dakota

PLANNED PARENTHOOD MINNESOTA,
NORTH DAKOTA, SOUTH DAKOTA, and CAROL E. BALL, M.D.,Plaintiffs,
v.
DENNIS DAUGAARD, Governor, MARTY JACKLEY,
Attorney General, DONEEN HOLLINGSWORTH,
Secretary of Health,
Department of Health, and ROBERT FERRELL, President,
Board of Medical and Osteopathic Examiners,
in their official capacities, Defendants.

CIV. 11-4071-KES

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA SOUTHERN DIVISION

Dated June 30, 2011.


MEMORANDUM OPINION AND ORDER

Plaintiffs, Planned Parenthood Minnesota, North Dakota, South Dakota and Dr. Carol Ball, move for a preliminary injunction or temporary restraining order that would enjoin defendants, Governor Dennis Daugaard, Attorney General Marty Jackley, Secretary Doneen Hollingsworth, and Board President Robert Ferrell, in their official capacities, from enforcing South Dakota House Bill 1217 (hereinafter "the Act"), which takes effect on July 1, 2011.

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BACKGROUND

In 2005, the South Dakota Legislature amended SDCL 34-23A-10.1 to include various requirements to ensure a pregnant woman's voluntary and informed consent before she underwent an abortion. Some of those amendments were challenged by plaintiffs on the grounds that they violated the First and Fourteenth Amendments of the United States Constitution. See generally Planned Parenthood Minn., N.D., S.D. v. Rounds, 530 F.3d 724 (8th Cir. 2008) (en banc). That case is currently before the Eighth Circuit Court of Appeals.

In 2011, the South Dakota Legislature passed the Act at issue in this case. Plaintiffs challenge the constitutionality of the Act on the grounds that it violates the First Amendment's Free Speech Clause and the Fourteenth Amendment's Due Process Clause and Equal Protection Clause.1 A hearing on plaintiffs' motion for preliminary injunction was held on June 27, 2011.

There are essentially four parts to the Act: (1) The Pregnancy Help Center Requirements; (2) The 72-Hour Requirement; (3) the Risk Factors Requirement; and (4) the Coercion Provisions. Generally, the Pregnancy Help Center Requirements require a pregnant woman to consult with a registered "pregnancy help center" before she is able to undergo an abortion. The 72-Hour

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Requirement establishes at least a three-day waiting period between the pregnant woman's initial consultation with her physician and the abortion. The Coercion Provisions impose a duty on the physician to certify that the pregnant woman has not been "coerced" as defined in the Act. Finally, the Risk Factors Requirement establishes what information the physician must tell a pregnant woman with regard to the "complications associated with abortion."

Defendants acknowledge that no court has upheld a requirement that is similar to the Risk Factors Requirement. Defendants also acknowledge that no other state currently has requirements that are comparable to the Pregnancy Help Center Requirements, the 72-Hour Requirement, or the Coercion Provisions.

DISCUSSION

I. Preliminary Injunction Standard

When ruling on a motion for a temporary restraining order or preliminary injunction the court must consider: (1) the threat of irreparable harm to the moving party; (2) the balance of this harm with any injury a preliminary injunction would inflict on other parties; (3) the likelihood of success on the merits; and (4) the public interest. Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 113 (8th Cir. 1981) (en banc). See also S.B. McLaughlin & Co. v. Tudor Oaks Condominium Project, 877 F.2d 707, 708 (8th Cir. 1989) (noting that the trial court applied the same standard for a temporary restraining order

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and the preliminary injunction). "Where a preliminary injunction is sought to enjoin the implementation of a duly enacted state statute, [] district courts [must] make a threshold finding that a party is likely to prevail on the merits."2 Rounds, 530 F.3d at 732-33.

II. Likelihood of Success on the Merits

Plaintiffs challenge the constitutionality of the Act as a whole3 and several specific provisions in the Act. The court will first analyze the threshold issue of whether plaintiffs are likely to succeed on the merits with regard to each challenged provision.

A. The Pregnancy Help Center Requirements

Section 5 of the Act sets forth the requirements for maintaining a registry of pregnancy help centers and the requirements that a pregnancy help center must satisfy in order to be on the registry. Section 7 of the Act defines "pregnancy help center" as follows:

any entity . . . that has as one of its principal missions to provide education, counseling, and other assistance to help a pregnant mother maintain her relationship with her unborn child and care for her unborn child, which entity has a medical director who is

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licensed to practice medicine in the state of South Dakota, or that it has a collaborative agreement with a physician licensed in South Dakota to practice medicine to whom women can be referred, which entity does not perform abortions and is not affiliated with any physician or entity that performs abortions, and does not now refer pregnant mothers for abortions, and has not referred any pregnant mother for abortions for the three-year period immediately preceding July 1, 2011[.]

Subsection 3 of section 3 of the Act reads as follows with regard to the requirements that pertain to pregnancy help centers:

During the initial consultation between the physician and the pregnant mother, prior to scheduling a surgical or medical abortion, the physician shall . . . [p]rovide the pregnant mother with the names, addresses, and telephone numbers of all pregnancy help centers that are registered with the South Dakota Department of Health pursuant to this Act, and provide her with written instructions that set forth the following:
(a) That prior to the day of any scheduled abortion the pregnant mother must have a consultation at a pregnancy help center at which the pregnancy help center shall inform her about what education, counseling, and other assistance is available to help the pregnant mother keep and care for her child, and have a private interview to discuss her circumstances that may subject her decision to coercion;
(b) That prior to signing a consent to an abortion, the physician shall first obtain from the pregnant mother, a written statement that she obtained a consultation with a pregnancy help center, which sets forth the name and address of the pregnancy help center, the date and time of the consultation, and the name of the counselor at the pregnancy help center with whom she consulted[.]

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Section 6 of the Act then sets forth what the pregnancy help center is required and allowed to do during the required consultation. Specifically, section 6 states that a pregnancy help center:

shall be permitted to interview the pregnant mother to determine whether the pregnant mother has been subject to any coercion to have an abortion, and shall be permitted to inform the pregnant mother in writing or orally, or both, what counseling, education, and assistance that is available to the pregnant mother to help her maintain her relationship with her unborn child and help her care for the child both through the pregnancy help center or any other organization, faith-based program, or governmental program. . . . Any written statement or summary of assessment prepared by the pregnancy help center as a result of counseling of a pregnant mother as a result of the procedures created by this Act, may be forwarded by the pregnancy help center, in its discretion, to the abortion physician. If forwarded to the physician, the written statement or summary of assessment shall be maintained as a permanent part of the pregnant mother's medical records. Other than forwarding such documents to the abortion physician, no information obtained by the pregnancy help center from the pregnant mother may be released, without the written signed consent of the pregnant mother or unless the release is in accordance with federal, state, or local law.

Section 4 of the Act then states that "no physician may take a consent for an abortion nor may the physician perform an abortion, unless the physician . . . first obtains from the pregnant mother, a written, signed statement setting forth all information required by subsection 3(b) of section 3[,]" which is set forth above.

Plaintiffs challenge these sections, hereinafter referred to as the Pregnancy Help Center Requirements, on six grounds: (1) they violate the patients' rights to obtain an abortion; (2) they violate the patients' right to free

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speech; (3) they violate the patients' informational privacy rights; (4) they violate the patients' and plaintiffs' rights to equal protection of the laws; (5) they violate the Establishment Clause; and (6) they violate plaintiffs' right to free speech.4

1. Compelled Speech (Patient) Analysis

"[T]he right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all." Wooley v. Maynard, 430 U.S. 705, 714 (1977). In analyzing whether "state action violates the right not to speak, a court first determines whether the action implicates First Amendment...

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