Planned Parenthood Minnesota v. Rounds

• Decision Date: 30 October 2006
• Docket Number: No. 05-3093.,05-3093.
• Citation: 467 F.3d 716
• Parties: PLANNED PARENTHOOD MINNESOTA, North Dakota, South Dakota; Carol E. Ball, M.D., Plaintiffs-Appellees, v. Mike ROUNDS, Governor, in his official capacity; Larry Long, Attorney General, in his official capacity, Defendants-Appellants, Alpha Center; Black Hills Crisis Pregnancy Center, doing business as Carenet; Dr. Glenn A. Ridder, M.D.; Eleanor D. Larsen, M.A., LSWA, Intervenors on Appeal.
• Court: U.S. Court of Appeals — Eighth Circuit

467 F.3d 716

PLANNED PARENTHOOD MINNESOTA, North Dakota, South Dakota; Carol E. Ball, M.D., Plaintiffs-Appellees, v. Mike ROUNDS, Governor, in his official capacity; Larry Long, Attorney General, in his official capacity, Defendants-Appellants Alpha Center; Black Hills Crisis Pregnancy Center, doing business as Carenet; Dr. Glenn A. Ridder, M.D.; Eleanor D. Larsen, M.A., LSWA, Intervenors on Appeal.

No. 05-3093.

United States Court of Appeals, Eighth Circuit.

Submitted: April 20, 2006.

Filed: October 30, 2006.

John P. Guhin, argued, Assistant Attorney General, Pierre, SD, for appellants.

Harold J. Cassidy, argued, Shrewsbury, NJ, for intervenors.

Timothy E. Branson, argued, Minneapolis, MN, for appellees.

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 action under the First and Fourteenth Amendments against Governor Mike Rounds and Attorney General Larry Long (state officials) to enjoin enforcement of measures enacted in 2005 revising the South Dakota law on informed consent to abortion. The district court¹ granted a preliminary injunction enjoining the new law from going into effect, and the state officials appeal.² Because we conclude that the plaintiffs showed a likelihood of prevailing on their constitutional arguments and that the district court did not abuse its discretion in granting injunctive relief at this preliminary stage of the proceedings, we affirm.

I.

In 1993 South Dakota enacted a law providing that no abortion can be performed without the patient's voluntary and informed consent unless it is impossible to obtain such consent due to a medical emergency. S.D.C.L. § 34-23A-10.1 (2003). Under this statute, the patient's consent will be informed only if certain information has been given to her at least 24 hours before an abortion procedure. The information required by the 1993 law includes the name of the physician who will perform the abortion, the medical risks associated with abortion and with carrying her child to term, and the probable gestational age of the embryo or fetus she is carrying. The patient must also have been told that medical assistance benefits may be available, that the father may be liable for support if she has her child, and that she has the right to view complimentary printed materials with pictures and drawings of embryos and fetuses at various gestational ages. Id. After the patient has received all of this information, she must sign an informed consent certification. Id. A provider's failure to comply with the state's informed consent requirements is a class 2 misdemeanor. S.D.C.L. § 34-23A-10.2 (2005).³ We upheld the constitutionality of this 1993 law in Planned Parenthood, Sioux Falls Clinic v. Miller, 63 F.3d 1452, 1467 (8th Cir.1995).

In 2005 South Dakota enacted House Bill 1166 (the Act) which is the subject of this action. The Act amended the 1993 version of § 33-23A-10.1 and expanded the disclosure requirements for informed consent to abortion. The disclosures required under the new law are contained in § 7 of the Act. Under § 7, a woman contemplating abortion must receive oral disclosures from the physician scheduled to perform the abortion or a designee 24 hours in advance of the procedure and other written disclosures must be given by the physician no less than 2 hours before the procedure. The mandatory disclosures include all of the information required under the prior law as well as the new provisions.

As part of the new disclosures required under § 7, the doctor's written statement provided 2 hours before an abortion must inform the patient:

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

(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....

S.D.C.L. § 34-23A-10.1(1)(b)—(d)(2005). Section 8 of the Act defines "human being" as an "individual living member of the species Homo sapiens." Although this definition is not part of the written statements required by § 7, the state officials suggest that a physician could choose to include it.

Other new disclosures mandated by § 7 of the Act include more specific information about the psychological risks of abortion, including depression, suicide, and suicidal ideation, to be given as part of the written statements 2 hours before the procedure. See S.D.C.L. § 34-23A-10.1(1)(e) (2005). The name, address, and telephone number of a nearby crisis pregnancy center must also be provided with the other oral disclosures 24 hours in advance. After the patient has read the written portion of the required disclosures, § 7 requires that she sign each page of the statement verifying that she has understood all the disclosures. S.D.C.L. § 34-23A10.1(1) ¶ 2 (2005). If she asks for clarification or explanation about any required disclosure or has any other significant question, the physician's response must also be in writing. Id. That response becomes part of the patient's permanent medical record. Once all of the required disclosures have been provided, § 7 requires that the physician certify that she is satisfied that the patient "understands the information imparted." S.D.C.L. § 34-23A-10.1(2) (2005).

Section 10 of the 2005 Act provides that the 1993 informed consent requirements shall remain in effect if the provisions of § 7 are enjoined, suspended, or delayed. Section 11 provides that if any part of § 7 is found unconstitutional, it shall be severed from the remaining valid provisions of the Act.

Before the Act was to go into effect on July 1, 2005, Planned Parenthood brought this action and moved for a preliminary injunction. Planned Parenthood argued that requiring physicians to state in writing to their patients that abortion "terminates the life of a whole, separate, unique, living human being" violates the First and Fourteenth Amendment rights of both doctors and women, as do the two related required written statements about the patient's "existing relationship" with that unborn human being and the potential termination of that relationship. Planned Parenthood argued that the constitutional injuries were reinforced by the physician's obligation to certify that the patient has not only received these messages but also understood them.⁴ In its opposition to the motion, the state officials characterized these three challenged disclosures as statements of medical and scientific fact which are necessary to give complete and accurate information to women contemplating abortion.

The district court evaluated the request for injunctive relief under the four Dataphase factors: 1) the probability of success on the merits; 2) the threat of irreparable harm to the movant; 3) the balance between this harm and the injury which will result from granting the injunction; and 4) whether issuance of the injunction was in the public interest. Dataphase Sys., Inc. v. C L Sys. Inc., 640 F.2d 109, 114 (8th Cir.1981) (en banc).

The district court found that the challenged disclosures express the state's ideology on an "unsettled medical, philosophical, theological, and scientific issue." Planned Parenthood of South Dakota v. Rounds, 375 F.Supp.2d 881, 887 (D.S.D. 2005) (citing Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973)). The court concluded that the requirement that physicians give these messages likely violates their First Amendment rights against compelled speech and that Planned Parenthood had shown that it was likely to succeed on the merits. The court further determined that Planned Parenthood had demonstrated a threat of irreparable harm and that the balance of the harms and the public interest were also in its favor. It accordingly granted preliminary injunctive relief, enjoining the new provisions in § 7 of the Act but providing that the prior informed consent law remain in effect during the pendency of the preliminary injunction pursuant to § 10 of the Act.

II.

On appeal the state officials and the intervenors (collectively South Dakota) argue that the district court erred in granting preliminary injunctive relief and alternatively that the court should have enjoined only those provisions of § 7 which it specifically found likely to be constitutionally infirm. We review a decision to grant preliminary injunctive relief with the assistance of the Dataphase factors, United Indus. Corp. v. Clorox Co., 140 F.3d 1175, 1178-79 (8th Cir.1998). We will reverse if there was an abuse of discretion. Coca-Cola Co. v. Purdy, 382 F.3d 774, 782 (8th Cir.2004). An abuse of discretion occurs if the decision of the district court is based on clearly erroneous factual findings or erroneous legal conclusions. Lankford v. Sherman, 451 F.3d 496, 503-04 (8th Cir.2006).

A.

The best starting point for our Dataphase analysis is consideration of the plaintiffs' likelihood of success on the merits. Cf. Clorox, 140 F.3d at 1179. This test is not one of mathematical probability, but rather a question of whether Planned Parenthood has a "fair chance of prevailing" after discovery and a full trial. Heartland Acad. Cmty. Church v. Waddle, 335 F.3d 684, 690 (8th Cir.2003). We will uphold a preliminary injunction "if the underlying constitutional issue is close." Planned Parenthood of the St. Louis Region, Inc. v. Nixon, 428 F.3d 1139, 1145 (8th Cir.2005) (internal quotations omitted).

Statutes regulating informed consent to abortion can implicate both a woman's fundamental due process right to have access to the procedure free from any undue burden as well as her doctor's First Amendment right against...