The District Court of the Southern District of South Dakota granted Planned Parenthood a preliminary injunction barring the state from enforcing almost every section of a recently adopted anti-abortion law. The plaintiffs, Planned Parenthood Minnesota, North Dakota, South Dakota and Carol E. Ball, M.D. sued on behalf of themselves and their patients. The court agreed with their challenges to four provisions of the new law. First, a section requiring women seeking abortions to submit to interviews at “pregnancy help centers” violated the First Amendment’s freedom of speech and the Fourteenth Amendment’s Due Process Clause. Second, the law’s requirement that women wait 72 hours between a consultation and an abortion imposed an undue burden on the right to abortion in violation of the Due Process Clause of the Fourteenth Amendment. Third, a cause of action the law created against physicians was so vague that it would discourage physicians from performing abortions and thereby impose an undue burden on Due Process rights. Finally, a requirement that doctors disclose all possible risk factors, even those later discredited, to their patients was overly broad and would impose an undue burden on due process rights. The court concluded that the plaintiffs were likely to succeed on the merits, that the violation of their Constitutional rights would be an irreparable harm, and that the balance of the harms and the public interest favored granting a preliminary injunction against enforcing the new law. Planned Parenthood Minnesota, North Dakota, South Dakota v. Daugaard, 2011 WL 2582731, CIV. 11-4071-KES (S.D.S.D. June 30, 2011). Chief Judge Karen E. Schreier, appointed by President Clinton, wrote the opinion.
In 2011 the state legislature of South Dakota passed an act that imposed new burdens on women seeking abortions and on physicians trying to provide them. The new law contained four principal elements. First, the law required women to consult with a “pregnancy help center” prior to obtaining an abortion. The law required women to disclose to pregnancy help centers information such as the fact of her pregnancy and her intent to undergo an abortion. The act defined pregnancy help centers as “any entity … that has as one of its principle 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.” Pregnancy help centers were not allowed to perform abortions or be associated with any entity that performs abortions. The law required women to allow the pregnancy help center to interview them prior to an abortion, and it banned physicians from performing an abortion until the patient had consulted with the pregnancy help center.
The second element of the law was a requirement that women wait at least 72 hours between her initial consultation for an abortion and receiving the abortion procedure. Third, the law imposed a duty on physicians to ensure that their patients were not being coerced into seeking an abortion, and it made physicians liable if they failed to prevent coercion. The law defined a coerced abortion as one that was against the “desire” of the pregnant woman, and the law provided that coercion might happen through “inducement, influence, or persuasion”. If a physician performed an abortion, she would be liable for any intentional, knowing, or negligent failure to detect coercion. Finally, the law required physicians to disclose any risk factors associated with an abortion to the patient. The law’s broad definition of “risk factors” included all peer-reviewed, English-language medical literature since 1973 that has been indexed in one of several sources. According to the court, this definition would require physicians to disclose even risk factors suggested by research that was later discredited.
The plaintiffs challenged the pregnancy help center provisions on the grounds that they violated freedom of expression and the Due Process clause of the Fourteenth Amendment. The plaintiffs argued that the interviews required by the pregnancy help center section would compel speech in violation of the First Amendment. The court agreed that the First Amendment protects the right to refrain from speaking as well as the right to speak. If a state’s action compels protected speech, then the action must be narrowly tailored a compelling state interest. The court concluded that the speech here was protected because the First Amendment protects people from disclosing facts they do not wish to disclose and because the disclosures at issue here did not involve “essential operations of government”. Having found that the speech was protected, the court accepted that there was a compelling state interest in protecting women from coerced abortions and in informing women truthfully about abortion and abortion alternatives. However, the court did not accept that the law was narrowly tailored to achieve that goal. The court found that other alternatives to the law were available to satisfy the government’s interest, and that the government failed to prove that the law under consideration was effective at promoting the interest. For example, state law already required physicians to inform patients about the existence of pregnancy help centers at least 24 hours before an abortion. The court concluded that the pregnancy help center provisions of the law therefore violated the First Amendment.
The court then agreed with the plaintiffs that the pregnancy help centers also violated the Due Process Clause by placing an undue burden on the right to abortion. The court recited that a law imposing a “substantial obstacle to a woman’s choice to undergo an abortion” for a “large fraction of the cases for which it is relevant,” is invalid under the Due Process Clause. See Planned Parenthood Sioux Falls Clinic v. Miller, 63 F.3d 1452 (8th Cir. 1995). The court found that the relevant class to consider should be the class of women who have chosen to undergo an abortion in South Dakota and have not chosen to consult a pregnancy help center. The court also found the pregnancy help center provisions imposed a substantial burden on the choice to have an abortion. The law required women who had chosen to have an abortion to enter “into a hostile environment”, and the court explained the requirement “humiliates and degrades [a woman] as a human being”. These factors and the fear that the centers might publicly disclose the identities of women seeking abortions created a substantial burden on the choice to undergo an abortion. The law imposed this burden on a sufficiently large fraction of the relevant class. According to the court, the requirement will impose the burden on nearly every woman in the relevant class because the class is composed of women who have chosen an abortion and the law is forcing all of them to endure a consultation with a pregnancy help center that is opposed to their decision. Thus the court concluded that the plaintiffs were likely to succeed on the merits of the claim that the pregnancy help center provisions violated the Due Process Clause.
The plaintiffs also convinced the court that they were likely to succeed in their claim that the requirement of a 72-hour delay between a consultation and an abortion constituted an undue burden on the right to choose abortion. First, the court held the “relevant” class included every woman who chose to undergo abortion. Next, the court found that the 72-hour delay constituted a substantial burden. There is only one clinic in South Dakota and each physician only visits the clinic once a month. In practice, the 72 hour waiting period would extend for up to a month. The delay would double the expense of traveling to get the procedure and increase the danger to women in abusive relationships. The delay could also make it impossible for some women to get abortions in time. This burden affected all women who chose to get abortions. Like the pregnancy help center provisions, the 72-hour delay requirement imposed an undue burden on the right to choose abortion.
The court next analyzed the constitutionality of the cause of action against physicians who failed to uncover coercion in a woman’s choice to terminate a pregnancy. The court first found that the cause of action was unconstitutionally vague. The statute included within the definition of coercion inducing a woman to have an abortion “against her desire.” The term “against her desire”, the court found, was too vague to give a physician fair notice of what his responsibilities were. According to the court, the uncertainty would dissuade physicians from performing abortions because of the fear they would face civil liability under the vague statute. The statute, therefore, was unconstitutionally vague.
Finally the court examined the constitutionality of the requirement that physicians inform patients of all risk factors. The court agreed with the plaintiffs that the requirement compelled speech in violation of the First Amendment. The First Amendment does not prevent a state from requiring physicians to provide truthful information. However, the law required physicians to inform patients even of risk factors that were based on studies long since discredited in the medical community, and “nothing in the statute permits physicians to use their medical judgment to avoid disclosing information that is untrue, misleading or irrelevant.” Even if the state had a compelling interest in ensuring that abortion patients are fully informed, the court held that the law here was not narrowly tailored to promote that interest. The law required disclosures of information that was untruthful, irrelevant, or misleading, and consequently the law compelled speech in violation of the First Amendment.
The court also agreed with the plaintiffs that the risk factor requirement imposed an undue burden on the choice to have an abortion. The relevant class, the court decided, included all women who had chosen to seek an abortion. Furthermore the court decided the requirement imposed a substantial burden on the right to choose abortion. The law required physicians to search through an impossibly vast universe of medical literature, and imposed liability on them if they failed to find any risk factor mentioned anywhere and disclose that factor to a patient. The law would discourage physicians from performing abortions, and therefore created a substantial burden on the right to choose an abortion. The law was a substantial obstacle to choosing abortion in a “large fraction” of the relevant cases because it would apply to every single abortion and subject physicians to the risk of liability for every single abortion.
Having found that the plaintiffs could likely show that the challenged provisions were unconstitutional, the court found that two subsections of the law could be severed from the unconstitutional sections, but that the rest would be enjoined if remaining requirements for a preliminary injunction could be met.
The court quickly concluded that the plaintiffs risked irreparable harm if they did not receive a preliminary injunction. The court recalled, “Constitutional violations, however brief, are unquestionably irreparable.”
The court also concluded that the plaintiffs risked a greater harm from an improperly withheld injunction than the defendants risked from an improperly granted one. The plaintiffs risked a violation of the personal liberty interests. The defendants only risked being delayed in carrying out their official duties.
And finally, the court held that the public interest was served by issuing an injunction. The court cited the public interest in protecting the right to choose abortion and the interest in assuring the supremacy of the Constitution. The public interest in enforcing state laws is important, but less so than the interest in protecting the Constitution and the rights it provides. The court entered its order giving a preliminary injunction against the enforcement of South Dakota’s anti-abortion statute.