Planned Parenthood v. Rounds, 686 F.3d 889 (8th Cir. 2012) (en banc), is an Eighth Circuit decision addressing the constitutionality of a South Dakota law which forced doctors to make certain disclosures to patients seeking abortions.Planned Parenthood v. Rounds, 686 F.3d 889 (8th Cir. 2012). The challenged statute required physicians to convey to their abortion-seeking patients a number of state-mandated disclosures, including a statement that abortions caused an "[i]ncreased risk of suicide ideation and suicide."S.D. Codified Laws. §34-23A-10.1, available at https://sdlegislature.gov/Statutes/Codified_Laws/DisplayStatute.aspx?Type=Statute&Statute=34-23A-10.1. Planned Parenthood of Minnesota, North Dakota, South Dakota, along with its medical director Dr. Carol E. Ball, challenged the South Dakota law, arguing that it violated patients' and physicians' First Amendment free speech rights and Fourteenth Amendment due process rights.First Amended Complaint, Planned Parenthood v. Rounds, 4:05-cv-04077 (D.S.D. Aug. 10, 2006), ECF No. 208. After several appeals and remands, the Eighth Circuit, sitting en banc, upheld the South Dakota law, holding that the mandated suicide advisement was not "unconstitutionally misleading or irrelevant," and did "not impose an unconstitutional burden on women seeking abortions or their physicians." This supplemented the Eighth Circuit's earlier rulings in this case, where the court determined that the state was allowed to impose a restrictive emergency exception on abortion procedures and to force physicians to convey disclosures regarding the woman's relationship to the fetus and the humanity of the fetus.

Background

Legal backdrop In Roe v. Wade, 410 U.S. 113 (1973), the United States Supreme Court held that the United States Constitution protects a woman's right to choose to have an abortion without being subject to excessive government restrictions.Roe v. Wade, 410 U.S. 113 (1973). The Court-based this right in the fundamental "right to privacy" which it found to be inherent to the Due Process Clause of the Fourteenth Amendment. Per Roe, a women's right to an abortion must be balanced against the government's legitimate interests in protecting women's health and the "potentiality of human life" (i.e., a fetus).Roe v. Wade, 410 U.S. 113, 164-65 (1973).

Almost twenty years after Roe, the Supreme Court issued its next major abortion decision in a case challenging a Pennsylvania statute that imposed—among other requirements—mandatory waiting periods, spousal notice, and parental consent for minors seeking abortions.Planned Parenthood v. Casey, 505 U.S. 833 (1992). In Planned Parenthood v. Casey, 505 U.S. 833 (1992), the Court reaffirmed the constitutional right to have an abortion, as established in Roe v. Wade, but changed the standard employed to evaluate restrictions on that right. The Supreme Court created the "undue burden" standard for abortion restrictions, whereby a restriction is deemed impermissible if "its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability."Planned Parenthood v. Casey, 505 U.S. 833, 878 (1992).

The challenged law In 2005, the South Dakota legislature enacted House Bill 1166, which revised the requirements for obtaining patients' informed consent to an abortion by expanding the law's disclosure requirements. The law was set to go into effect on July 1, 2005, and subjected abortion providers to the risk of criminal prosecution if they did not meet the statutory requirements.S.D. Codified Laws. §34-23A-10.2, available at https://sdlegislature.gov/Statutes/Codified_Laws/DisplayStatute.aspx?Type=Statute&Statute=34-23A-10.2.

The bill required physicians who perform abortions to inform abortion-seeking patients, in writing, that "the abortion will terminate the life of a whole, separate, unique living being,"S.D. Codified Laws. §34-23A-10.1(1)(b), available at https://sdlegislature.gov/Statutes/Codified_Laws/DisplayStatute.aspx?Type=Statute&Statute=34-23A-10.1. 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,"S.D. Codified Laws. §34-23A-10.1(1)(c), available at https://sdlegislature.gov/Statutes/Codified_Laws/DisplayStatute.aspx?Type=Statute&Statute=34-23A-10.1. and that "by having an abortion, her existing relationship and her existing constitutional rights with regards to that relationship will be terminated" (relationship disclosures).S.D. Codified Laws. §34-23A-10.1(1)(d), available at https://sdlegislature.gov/Statutes/Codified_Laws/DisplayStatute.aspx?Type=Statute&Statute=34-23A-10.1. The law further required a physician performing an abortion to "certify in writing" that he or she had made all of the state-mandated disclosures and that the "physician is, to the best of his or her ability, satisfied that the pregnant woman has read" the state-mandated disclosures and that "the physician believes she understands the information imparted." The South Dakota law also forced the pregnant woman to "sign[] each page of the written disclosure with the certification that she has read and understands all of the disclosures."S.D. Codified Laws. §34-23A-10.1(1)(i), available at https://sdlegislature.gov/Statutes/Codified_Laws/DisplayStatute.aspx?Type=Statute&Statute=34-23A-10.1.

Doctors were prohibited from performing an abortion unless the doctor provided her patient that with a list of "all known medical risks of the procedure and statistically significant risk factors to which the pregnant woman would be subjected, including:...[i]ncreased risk of suicide ideation and suicide" (medical risk disclosures/suicide advisory).S.D. Codified Laws. §34-23A-10.1(1)(e)(ii), available at https://sdlegislature.gov/Statutes/Codified_Laws/DisplayStatute.aspx?Type=Statute&Statute=34-23A-10.1. The law also stated that a physician may not perform a medically emergent abortion to which a pregnant woman has not consented "unless the physician determines that obtaining an informed consent is impossible due to a medical emergency and further determines that delaying 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" (medical emergency exception).

Procedural history

Planned Parenthood's challenge Planned Parenthood of Minnesota, North Dakota, South Dakota along with its medical director Dr. Carol E. Ball (hereinafter collectively "Planned Parenthood") challenged the South Dakota law in a lawsuit filed with the District Court for the District of South Dakota, asking the district court to declare the contested provisions unconstitutional and to grant injunctive relief precluding enforcement of those provisions. Planned Parenthood argued that various provisions of the South Dakota law constituted an undue burden on abortion rights, facially violated patents' and physicians' First Amendment rights, and were unconstitutionally vague. Planned Parenthood believed that the amendments to South Dakota's notice law forced abortion providers to convey the state of South Dakota's ideology and philosophical beliefs regarding abortion, in violation of their First and Fourteenth Amendment rights. Planned Parenthood also argued that the law violated pregnant women's First and Fourteenth Amendment rights by forcing them to listen to and understand the state's anti-abortion beliefs. Planned Parenthood further contended that the state violated pregnant women's Fourteenth Amendment right to privacy and liberty by forcing them to listen to and certify an understanding of untrue and misleading information about abortion, and that this amounted to an undue burden on women's right to choose an abortion. Plaintiff finally argued that other provisions in the statute were impermissibly vague, in violation of the Fourteenth Amendment's due process clause, and that the law's health exception was inadequate.

District court ruling The district court preliminarily enjoined the Act, preventing the statute from taking effect.Planned Parenthood v. Rounds, 375 F.Supp.2d 881 (D.S.D. June 30, 2005). The district court found that the informed consent provisions contained in the challenged South Dakota law went "much further than the informed consent statute upheld in Casey, and other cases reviewing similar statutes."Planned Parenthood v. Rounds, 375 F.Supp.2d 881, 886 (D.S.D. June 30, 2005). The district court held that the mandated disclosures were not a reasonable regulation of the medical profession, and instead violated the physicians' First Amendment rights "by compelling them to espouse the state's ideology" "on an unsettled medical, philosophical, theological, and scientific issue."Planned Parenthood v. Rounds, 375 F.Supp.2d 881, 886-887 (D.S.D. June 30, 2005). The district court found it significant that the statute lacked a provision expressly allowing a physician to disassociate herself from the required disclosures (which had been a feature of a similar North Dakota law).Planned Parenthood v. Rounds, 375 F.Supp.2d 881, 887 (D.S.D. June 30, 2005). The district court granted a preliminary injunction based on its finding that Planned Parenthood had a fair chance of success on its claim that the law violated physicians' free speech rights, and that the balance of the harms came out in Planned Parenthood's favor.

Appeal to the Eighth Circuit On July 26, 2005, the state, along with crisis pregnancy centers that had intervened in the case, appealed the district court's preliminary injunction to the Eighth Circuit.Brief of Appellant, Planned Parenthood v. Rounds, No. 05-3093 (8th Cir. September 2005). A divided panel of the Eighth Circuit affirmed the lower court's decision to grant the preliminary injunction.Planned Parenthood v. Rounds, 467 F.3d 716 (8th Cir. 2006). The defendants and intervenors then petitioned the Eighth Circuit for a re-hearing en banc, which the Eighth Circuit granted.

The Eighth Circuit, sitting en banc, vacated the preliminary injunction and remanded the case to the district court for future proceedings.Planned Parenthood v. Rounds, 530 F.3d 724 (8th Cir. 2008). The Eighth Circuit found that Planned Parenthood had failed to demonstrate the requisite likelihood of success on its claim that the statutorily-required disclosure was untruthful and misleading. As part of its holding, the Eighth Circuit clarified that "where a preliminary injunction of a duly enacted state statute is sought, we require a more rigorous threshold showing that the movant is likely to prevail on the merits."Planned Parenthood v. Rounds, 530 F.3d 724, 730 (8th Cir. 2008) The Eighth Circuit stated that Planned Parenthood could only succeed on the merits of its claim that the law violated the First Amendment if it showed that the required disclosures were untruthful, misleading, or not relevant to the pregnant woman's decision to abort.Planned Parenthood v. Rounds, 530 F.3d 724, 735 (8th Cir. 2008). The Eighth Circuit found that the district court had based its conclusion "on an error of law when it ignored the statutory definition of 'human being.'"Planned Parenthood v. Rounds, 530 F.3d 724, 733 (8th Cir. 2008)

Remand to the District Court On remand to the district court, all sides moved for summary judgment with respect to the challenged provisions.Planned Parenthood v. Rounds, 650 F. Supp. 2d 972, 975 (D.S.D. 2009). The district court issued rulings on the biological disclosure, the relationship disclosures, the medical risk disclosures, and the medical emergency exception.

Biological disclosure