Planned Parenthood Minn. v. Noem
| Decision Date | 08 February 2022 |
| Docket Number | 4:22-CV-04009-KES |
| Parties | PLANNED PARENTHOOD MINNESOTA, NORTH DAKOTA, SOUTH DAKOTA and SARAH A. TRAXLER, M.D., Plaintiffs, v. KRISTI NOEM, Governor, in official capacity; JOAN ADAM, Interim Secretary of Health, Department of Health, in official capacity; PHILIP MEYER, D.O.; President, South Dakota Board of Medical and Osteopathic Examiners, in official capacity, Defendants. |
| Court | U.S. District Court — District of South Dakota |
Plaintiffs Planned Parenthood Minnesota, North Dakota, South Dakota and Sarah A. Traxler, M.D. (jointly referred to as Planned Parenthood), move under Federal Rule of Civil Procedure 65 for a temporary restraining order and preliminary injunction enjoining defendants, Kristi Noem, Joan Adam, and Philip Meyer, D.O. (jointly referring to as state defendants), from enforcing portions of South Dakota Administrative Rule 44:67:04:13. Docket 3. The court granted the motion for a temporary restraining order on January 26, 2022, and held an evidentiary hearing on the motion for preliminary injunction on February 1, 2022. Docket 18; Docket 20. The state defendants resist Planned Parenthood's motion. Docket 19. For the following reasons, the court grants Planned Parenthood's motion for a preliminary injunction.
Planned Parenthood is a non-profit organization that operates a clinic in Sioux Falls, South Dakota, where it offers a broad range of reproductive health services, including medication and procedural abortions. Docket 1 ¶ 18. Its Sioux Falls clinic is the only generally available abortion provider in the state. Docket 5 ¶ 13. The clinic provides medication abortion through 11 weeks since a patient's last menstrual period (LMP) and procedural abortions through 13.6 weeks LMP. Id. ¶ 12. In 2021, Planned Parenthood performed 190 abortions at its Sioux Falls clinic about 40% of which were medication abortions. Id. ¶ 13. And in 2020, of the 125 abortions performed at the clinic, 39.2% were medication abortions. Docket 19-1 at 13.
South Dakota Department of Health's 2020 Report of Induced Abortions provides relevant insight on abortion patients in the state. See generally Id. Of the patients who received abortions in South Dakota in 2020, 44% reside outside the two counties-Minnehaha and Lincoln-that comprise and surround Sioux Falls. See Id. at 5. Eighty-six percent of patients were not married; a high school degree or less was the highest educational attainment for 56% of patients. Id. at 7. Nearly two-thirds of patients already had one or more living children. See Id. at 9. Seventy-nine percent of patients had an abortion through 11 weeks LMP. See Id. at 11. Fifty percent reported that they “could not afford the child” as a reason for abortion; 17.6% reported that the patient's “emotional health was at risk” as a reason for abortion. Id. at 15.
Planned Parenthood provides additional statistics about its abortion patients in Sioux Falls. Specific to medication abortion patients, about 24% travel more than 150 miles round trip to reach the clinic and return home, and 11% travel more than 300 miles round trip. Docket 5 ¶ 41. These distances and associated costs are doubled under the state's existing two-appointment requirement. Id. Many of Planned Parenthood's patients rely on public transportation, ride-sharing, or a borrowed car to reach the Sioux Falls clinic. Id. ¶ 42. Thirty-one percent of medication abortion patients and 39% of all abortion patients at the Sioux Falls clinic have income below 110% of the federal poverty level.[1] Id. ¶ 45. Many abortion patients experience domestic violence, and some are unable to access healthcare without an abusive partner's interference. Docket 6 ¶ 33.
The most common method of medication abortion, and the method used by Planned Parenthood, requires a two-drug regimen: first, mifepristone, and second, misoprostol. Docket 5 ¶ 14; Docket 6 ¶ 11. This method causes a patient to expel their pregnancy in a manner similar to miscarriage. Docket 5 ¶ 14. Under existing South Dakota law, a person who wishes to receive a medication abortion first must meet with a physician at the clinic to begin the informed consent process. Docket 1 ¶ 28; see SDCL § 34-23A-56. This is the patient's “first appointment.” At least 72 hours later, the person must return to the clinic for the “second appointment” where the physician-the same physician who met with the patient during the first appointment-dispenses and administers mifepristone while the patient is at the clinic. Docket 5 ¶¶ 31-32. During the second appointment, the physician also dispenses the second drug, misoprostol, and instructs the person to self-administer it 24 to 48 hours later at a location of their choosing. Id. ¶¶ 32, 34. The state defendants note that the current FDA protocol calls for misoprostol to be administered 24 to 48 hours after mifepristone. Docket 19-2 ¶ 7. Medication abortion is safe for most women through 11 weeks LMP. Docket 6 ¶ 25.
At the first appointment, medication abortion patients are given detailed information about the medication abortion method, how and when they would take the two medications, and what to expect in the process. Docket 5 ¶ 29. They are also given the Mifeprex Medication Guide as required by the FDA. Id. At the second appointment, the physician confirms that the patient wishes to proceed with the abortion, the physician reviews what was discussed at the first appointment, and the patient and physician finalize a follow-up plan that is documented in the patient's medical record. Id. ¶ 31.
At both appointments and throughout the medication abortion process, physicians counsel patients about what effects may normally occur and what symptoms may indicate a complication. Docket 6 ¶ 23. Patients are given the chance to ask questions of their physician, and they are provided with information to reach a medical professional at any hour of any day. Docket 5 ¶ 30; Docket 6 ¶ 23. Planned Parenthood states:
In the overwhelming majority of instances, providers can assess patient concerns by phone, reassure them when they are experiencing normal effects (such as cramping and bleeding), help them manage these effects (e.g. with medications or interventions to reduce pain), and as needed prescribe additional medications to help them complete the process or schedule them for follow-up care.
Docket 6 ¶ 24. And in “extremely rare circumstances, providers refer patients to the nearest hospital where emergency care is available.” Id. The state defendants also note the availability of follow-up medical care that patients avail themselves of when necessary. Docket 19-2 ¶¶ 25, 27, 28.
The Department of Health promulgated Rule 44:67:04:13 regarding the induction of medication abortions. This Rule was to take effect January 27, 2022. The Rule, discussed in greater detail below, requires a patient seeking a medication abortion to attend 4 appointments at specific, regulated time intervals: first, for informed consent; second, at least 72 hours later for administration of mifepristone; third, 24 to 72 hours later for administration of misoprostol; and fourth, “a follow-up appointment . . . on the 14th day after taking the misoprostol[.]” S.D. Admin. R. 44:67:04:13 (2022). The third and fourth clinic appointments are new, additional requirements to existing South Dakota law.
Since receiving FDA-approval in 2000, over 4 million people in the United States have completed a medication abortion. Docket 5 ¶ 17. Medication abortion is preferable to a procedural abortion for some people because it is less invasive and offers flexibility in terms of the timing and location for administering the second medication and ultimately completing the abortion. Docket 1 ¶ 30; Docket 5 ¶ 15. Regardless of a patient's preference, a medication abortion is safer and medically indicated for some patients. Docket 5 ¶ 50. For patients with certain conditions, including cervical stenosis, uterine fibroids, or obesity, a medication abortion presents fewer risks than a procedural abortion. Id. ¶ 66. For patients with vulvodynia or vaginismus, a procedural abortion is more painful. Id. Patients who have experienced rape or other sexual violence may choose a medication abortion to feel more in control and avoid having instruments placed in their vagina. Id.; Docket 6 ¶ 29.
As an alternative to a medication abortion, a patient may seek a procedural abortion. In South Dakota, procedural abortion becomes the only option for a patient seeking an abortion after 11 weeks LMP. Docket 6 ¶ 25. A procedural abortion during the first trimester is performed by vacuum aspiration; it requires that the patient's cervix be dilated while a tube is inserted through the vagina and cervix and into the uterus. Id. Suction is then applied through the tube to empty the uterus. Id. A procedural abortion patient typically receives sedation and/or local anesthesia. Id. In 2020 in South Dakota, 58% of patients were under local anesthetic while 2.4% were under general anesthetic. See Docket 19-1 at 14. As gestational age advances, procedural abortion becomes more invasive, requiring increased dilation and possibly the use of forceps. Docket 6 ¶ 25. Many patients consider medication abortion less invasive than procedural abortion. Id. ¶ 28.
Planned Parenthood and the state defendants dispute the safety of medication abortion. Planned Parenthood argues that medication abortion is “one of the safest procedures in contemporary medical practice,...
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