Planned Parenthood Minnesota v. Rounds

653 F.3d 662, 2011 WL 3862585
CourtCourt of Appeals for the Eighth Circuit
DecidedSeptember 2, 2011
Docket09-3231, 09-3233, 09-3362
StatusPublished
Cited by15 cases

This text of 653 F.3d 662 (Planned Parenthood Minnesota v. Rounds) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Planned Parenthood Minnesota v. Rounds, 653 F.3d 662, 2011 WL 3862585 (8th Cir. 2011).

Opinions

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 General1 (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 advisories3 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 en[666]*666joys 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. § 34-2SA10.1(l)(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(l)(e). That description must include “[increased risk of suicide ideation and suicide” as a known risk of abortion (the suicide advisory). Id. § 34-23A-10.1(l)(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)(e).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(l) ¶ 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 intervenors5 now [667]*667appeal 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(l)(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(l)(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-l(4),

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Planned Parenthood Minnesota v. Rounds
653 F.3d 662 (Eighth Circuit, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
653 F.3d 662, 2011 WL 3862585, Counsel Stack Legal Research, https://law.counselstack.com/opinion/planned-parenthood-minnesota-v-rounds-ca8-2011.