Planned Parenthood Minnesota v. Rounds
| Decision Date | 30 June 2005 |
| Docket Number | No. Civ. 05-4077-KES.,Civ. 05-4077-KES. |
| Citation | 375 F.Supp.2d 881 |
| Parties | PLANNED PARENTHOOD MINNESOTA, North Dakota, South Dakota; and Carol E. Ball, M.D., Plaintiffs, v. Mike ROUNDS, Governor, and Larry Long, Attorney General, in their official capacities, Defendants. |
| Court | U.S. District Court — District of South Dakota |
Stephen D. Bell, Dorsey & Whitney LLP, Denver, CO, Timothy Earl Branson, Dorsey & Whitney LLP, Minneapolis, MN, for Plaintiffs.
Patricia J. DeVaney, John P. Guhin, Attorney General's Office, Pierre, SD, for Defendants.
ORDER GRANTING MOTION FOR PRELIMINARY INJUNCTION
Plaintiffs, Planned Parenthood Minnesota, North Dakota, South Dakota and Carol E. Ball, M.D., move for a preliminary injunction preventing amendments to South Dakota Codified Laws 34-23A-10.1 from going into effect on July 1, 2005. Plaintiffs allege that the amendments (34-23A-10.1 (1)(b), (1)(c), (1)(d), (1)(e) and (2)) violate the First and Fourteenth Amendments of the United States Constitution. Defendants, Governor Mike Rounds and Attorney General Larry Long, oppose the motion. Plaintiffs' motion for preliminary injunction is granted.
Unless there is a medical emergency, no abortion may be performed in South Dakota without the voluntary and informed consent of the patient. SDCL 34-23A-10.1. Consent is informed only if the patient is told the name of the physician who will perform the abortion, the medical risks associated with the procedure, the probable gestational age of the unborn child, the medical risks associated with carrying her child to term, that medical assistance benefits may be available, that the father is liable to assist in supporting the child, and that she has the right to review printed materials provided by the state of South Dakota and a website. Id. The patient must then sign an informed consent certification. Id.
In 2005, the South Dakota Legislature passed House Bill 1166 to expand the physician disclosure requirements. H.B. 1166 (S.D.2005). Legislative findings include the following:
Section 1. The Legislature finds that all abortions, whether surgically or chemically induced, terminate the life of a whole, separate, unique, living human being.
Section 2. The Legislature finds that there is an existing relationship between a pregnant woman and her unborn child during the entire period of gestation.
Section 3. The Legislature finds that procedures terminating the life of an unborn child impose risks to the life and health of the pregnant woman. The Legislature further finds that a woman seeking to terminate the life of her unborn child may be subject to pressures which can cause an emotional crisis, undue reliance on the advice of others, clouded judgment, and a willingness to violate conscience to avoid those pressures. The Legislature therefore finds that great care should be taken to provide a woman seeking to terminate the life of her unborn child and her own constitutionally protected interest in her relationship with her child with complete and accurate information and adequate time to understand and consider that information in order to make a fully informed and voluntary consent to the termination of either or both.
Section 4. The Legislature finds that pregnant women contemplating the termination of their right to their relationship with their unborn children, including women contemplating such termination by an abortion procedure, are faced with making a profound decision most often under stress and pressures from circumstances and from other persons, and that there exists a need for special protection of the rights of such pregnant women, and that the State of South Dakota has a compelling interest in providing such protection.
If the law goes into effect as scheduled on July 1, 2005, no abortion may be performed in South Dakota unless the following requirements, in pertinent part, are met:
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 [sic] 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:
* * * * * *
(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;
* * * * * *
The disclosures set forth above shall be provided to the pregnant woman in writing and in person no later than two hours before the procedure is to be performed. The physician shall ensure that the pregnant woman signs each page of the written disclosure with the certification that she has read and understands all of the disclosures, prior to the patient signing a consent for the procedure. If the pregnant woman asks for a clarification or explanation of any particular disclosure, or asks any other question about a matter of significance to her, the explanation or answer shall be made in writing and be given to the pregnant woman before signing a consent for the procedure and shall be made part of the permanent medical record of the patient;
(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:
* * *
(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; and
* * * * * *
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.
H.B. 1166. SDCL 34-23A-10.2 provides in pertinent part that a physician who, knowingly or in reckless disregard, violates SDCL 34-23A-10.1 is guilty of a class 2 misdemeanor.
Plaintiffs contend that requiring abortion providers to notify their patients that "the abortion will terminate the life of a whole, separate, unique, living human being" and the notifications regarding the existing relationship and the relationship termination language violate the United States Constitution. Plaintiffs also object to the physician's certification that he or she is satisfied "that the pregnant woman has read" the state-mandated disclosures and that "the physician believes she understands the information imparted." Plaintiffs believe the amended notice law forces abortion providers to articulate the state's abortion ideology and philosophical beliefs about abortion, in violation of their First and Fourteenth Amendment rights. Plaintiffs also allege that the notice requirements violate the First and Fourteenth Amendment rights of pregnant women by forcing them to listen to and understand the state's anti-abortion views. Plaintiffs further allege that forcing women to receive and understand untrue, misleading information about abortion violates their right to privacy and liberty protected by the Fourteenth Amendment, and constitutes an undue burden on their right to choose abortion. Plaintiffs also contend that several provisions in the statute are impermissibly vague in violation of the due process clause of the Fourteenth Amendment and that the health exception is inadequate. Defendants Rounds and Long oppose the motion for preliminary injunction.
When ruling on a motion for a preliminary injunction, the court must consider (1) the likelihood of success on the merits; (2) the threat of irreparable harm to the moving party; (3) balancing this harm with any injury an injunction would inflict on other interested parties; and (4) the effect on the public interest. Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 113 (8th Cir.1981). "No single factor is dispositive; rather, each factor must be considered to determine whether the balance of equities weighs toward granting the injunction." United Indus. Corp. v. Clorox Co., 140 F.3d 1175, 1179 (8th Cir.1998).
The moving party need not demonstrate a mathematical probability of success on the merits, such as greater than 50 percent. Heartland Academy Cmty. Church v. Waddle, 335 F.3d 684, 690 (8th Cir.2003). Rather, the...
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