Tuesday, July 24, 2012

Planned Parenthood of Minn., N.D., S.D., v. Rounds[1]

Opinion handed down July 24, 2012

Abortion providers brought an action in federal court challenging the constitutionality of South Dakota’s amended abortion statute, contending that several of the statute’s provisions constituted an undue burden on abortion rights and facially violated patients’ and physicians’ free speech rights.[2]  The case has been the subject of litigation for years.[3]  This appeal to the U.S. Court of Appeals for the Eighth Circuit focused on whether the statute’s suicide advisory provision was constitutional.  The Eighth Circuit, sitting en banc, concluded that the suicide advisory provision of the South Dakota abortion statue presented neither an undue burden on abortion rights nor violated a physician’s free speech rights.[4]

 I.  Facts and Holding

In 2005, legislators in South Dakota enacted a bill (“the Act”) that amended the requirements for obtaining informed consent from a woman prior to an abortion as codified in S.D.C.L § 34-23A-10.1.[5] The amended statute requires that a physician obtain voluntary and informed written consent from a patient before the physician is legally able to perform an abortion.[6]  The provision of the amended statue, 34-23A-10.1(1)(e)(ii) or the “suicide advisory provision,” which was the center of this Eighth Circuit litigation, required that a physician provide a patient with a statement in writing with the following information:
            (e) a description of all known medical risks of the procedure and statistically significant   
            risk factors to which a pregnant woman would be subjected, including . . .
                        (ii) increased risk of suicide ideation and suicide.

In June 2005, Planned Parenthood sued to prevent the Act from taking effect, arguing that several of the Act’s provisions constituted an undue burden on abortion rights and facially violated both patient’s and physician’s free speech rights.[7]  The district court preliminary enjoined the Act and the Eighth Circuit, siting en banc, later vacated the preliminary injunction and remanded for further proceedings.[8]

On remand, both parties filed cross-motions for summary judgment.[9]  The district court ruled that certain parts of the Act were constitutional.[10]  However, the court found that disclosure regarding the protected relationship between the patient and unborn child and the disclosure regarding suicide advisory failed to meet both constitutional requirements.[11]  Additionally, the district court found the requirement to disclose “statistically significant risk factors” of abortion was unconstitutionally vague.[12]

The Governor and Attorney General of South Dakota (“the State”), along with two intervening crisis pregnancy centers, appealed the district court’s decision on the relationship disclosure and suicide advisory requirement.  Furthermore, Planned Parenthood cross-appealed the district court’s decision upholding the constitutionality of the biological disclosure and the “all known medical risks” disclosure.  The Eighth Circuit unanimously affirmed the lower court’s holding regarding the biological and “all known medical risks” disclosure.[13]  However, the court unanimously reversed the district court’s decision with respect to the relationship disclosure and affirmed in a divided decision as to the suicide advisory disclosure.[14]  The Eighth Circuit subsequently granted a rehearing en banc solely on the issue of the suicide advisory disclosure.[15]

Upon rehearing, the full court ultimately concluded that the suicide advisory, or § 34-23A-10(1)(e)(ii) of the Act, presented neither an undue burden on abortion rights nor violated a physician’s free speech rights.[16]  As a result, the Eighth Circuit reversed the district court’s granting of summary judgment to Planned Parenthood, directed the entry of summary judgment for the State as to that provision, and vacated the permanent injunction against the enforcement of that decision.[17]

II.  Instant Decision

Planned Parenthood argued that requiring a physician to disclose the “suicide advisory” to a potential abortion patient during the informed consent process imposed an undue burden on abortion rights and violated the free speech rights of the physician.[18]  The Eighth Circuit analyzed this argument according to a seminal Supreme Court decision regarding abortion statutes that compelled a physician’s disclosure of health risks associated with abortion.[19]  Following the Supreme Court’s precedent, the Eighth Circuit determined that Planned Parenthood must show that the suicide advisory disclosure provision was either “untruthful, misleading or not relevant to the patient’s decision to have an abortion” in order for the organization to succeed on either its undue burden or compelled speech claims.[20]   In evaluating the constitutional merits of Planned Parenthood’s argument, the Court first examined what disclosure was actually required, second, whether that disclosure was truthful, and third, whether the disclosure was non-misleading and relevant to the patient’s decision to have an abortion.[21]

In establishing its argument that the suicide advisory disclosure was unconstitutional, Planned Parenthood first contended that the language of the suicide advisory provision “should have been construe[d] to require a disclosure of a conclusive causal link between abortion and suicide.”[22]  Planned Parenthood argued that the language in the suicide informed consent provision implied that an abortion procedure directly caused suicide.[23]  The Eighth Circuit rejected this argument and concluded that the term “increased risk . . . [of suicide]” only suggested that a patient who goes through an abortion procedure would become a member of group for which an increased risk of suicide is documented relative to other groups.[24]  Furthermore, the Court noted its interpretation of the term “increased risk,” as it related to suicide, was consistent with the usage of the term in the relevant medical field, which further supported its contention that the usage of the term in § 34-23a-10.1(1)(e)(ii) did not imply a disclosure of a causal relationship.[25]

Regarding whether the suicide advisory disclosure was truthful, Planned Parenthood argued that the medical studies submitted by the State to support the contention that increased suicide was a genuine risk did not examine the correlation in sufficient detail “to prove a causal link” and that an “increased risk of suicide after abortion [was] not ‘known’ as required by the statute.”[26]  The Eighth Circuit also rejected this position and reemphasized its conclusion that the statute did not require a “causal link” between abortion and suicide.[27]  Additionally, the Court stated that it was satisfied with the medical literature and expert testimony offered by the State, which further bolstered the Court’s conclusion that the suicide advisory was “truthful.”[28]

Lastly, Planned Parenthood claimed that a suicide advisory disclosure would be misleading and irrelevant to a patient seeking an abortion.[29]  Particularly, the organization argued that it is more plausible that certain underlying factors predispose some women to have both unwanted pregnancies and suicidal tendencies, resulting in a misleading correlation between abortion and suicide and an absence of a causal component.[30]  In response, the Eth Circuit ruled that Planned Parenthood would have to prove, to a degree of scientifically accepted certainty, that abortion has been ruled out as a statistically significant causal factor in post-abortion suicides.[31]  Planned Parenthood attempted to overcome this threshold by citing several medical studies that suggested abortion procedures do not “increase the risk of suicide;” however, the court concluded that the studies did not rule out abortion as a statically significant causal factor in post-abortion suicides.[32]  Furthermore, the Eighth Circuit found glaring weaknesses in each of the studies submitted by Planned Parenthood that made the studies somewhat unreliable.[33]  Ultimately, the Court found that Planned Parenthood failed to show that abortion had been statistically ruled out as a causal factor in post-abortion suicide and that the suicide advisory was non-misleading and relevant to the patient’s decision to have an abortion.[34]

As a result of these three findings, the Eighth Circuit held that the suicide advisory disclosure requirement in § 34-23A-10.1(1)(e)(ii) did not present an undue burden on abortion rights of patients nor violate physicians’ free speech rights. 

Judge Murphy, with whom Judge Wollman, Bye, and Melloy joined, dissented and argued that South Dakota’s 2005 suicide advisory was unconstitutional because it [would] not provide information that would benefit a woman’s free choice to have an abortion because the information was not consistent with medical evidence.[35]  Judge Murphy focused on the language of the statute and emphasized that the amendments to 34-23A-10.1(1)(e) required doctors to tell a pregnant woman of the “known medical risk[s]” of having an abortion.[36]  In Judge Murphy’s view, suicide was “not a known medical risk of abortion” and was caused by factors pre-existing an abortion as described in numerous medical studies.[37]  Judge Murphy set forth medical evidence that supported the position that “abortion itself was not a cause of suicide” and also highlighted inconsistencies in the medical studies presented by the State and interveners that purported to show a correlation between suicide and abortion.[38] 

Therefore, Judge Murphy concluded that by forcing doctors to inform women that abortion subjects them to a risk which the record medical evidence refutes, the suicide advisory places an undue burden on a pregnant woman’s due process rights and violates a doctor’s First Amendment right against compelled speech.[39]

III.  Legal Background

Since the historical Roe v. Wade decision in 1973, state-enacted statutory legislation purporting to control the administration of abortions has been challenged on constitutional grounds in several federal circuit Court of Appeals and in the U.S. Supreme Court.[40]  The United States Supreme Court decision in Planned Parenthood of Se. Penn. v. Casey established an “undue burden” test that has become the standard for determining the constitutionality of abortion regulation.[41]  Furthermore, the Casey holding suggested that states have broad discretion in determining what information physicians will be required to give potential abortion patients without violating the physicians’ First Amendment rights.[42]

In Casey, abortion clinics and physicians challenged, on due process and First Amendment grounds, the constitutionality of a Pennsylvania statute’s informed consent provision that required a physician to provide women with information about the health risks and the possible complications of an abortion procedure.[43]  The Supreme Court upheld the constitutionality of the informed consent provision and ultimately concluded that “when the government requires [as part of the informed consent process] . . . the giving of truthful, non-misleading information about the nature of the procedure, the attendant health risks and those of childbirth,” and other information broadly relevant to the decision to have an abortion, it “does not impose an undue burden” on abortion rights and “is no different from a requirement that a doctor give certain specific information about any medical procedure.”[44]

Additionally, the Casey Court addressed the physicians’ argument that the informed consent provision of the Pennsylvania statute amounted to compelled speech and thus violated the physicians’ First Amendment rights because it “required” the physicians to inform patients of health-related risks of abortion.[45]  The court noted that the “physician’s First Amendment rights not to speak [were] implicated, but only as a part of the practice of medicine.”[46]  The court further determined that “the practice of medicine [is] subject to reasonable licensing and regulation by the State.”[47] As a result, the informed consent provision in the Pennsylvania abortion statute did not constitute “compelled speech” and did not violate the physicians’ First Amendment rights.[48]

Based upon the Supreme Court holding in Casey, lower federal courts have developed a test to evaluate the constitutional merits of state-enacted abortion regulations that contain a required disclosure or an informed consent provision.[49]  When a plaintiff claims that such a provision constitutes either an “undue burden” on a patient’s ability to obtain an abortion or “compelled speech” in that it requires a physician to divulge medical risks of an abortion procedure, the plaintiff must show that the provision is either “untruthful, misleading or not relevant to the patient’s decision to have an abortion.”[50]

Regarding whether a required disclosure or an informed consent provision is “untruthful,” a plaintiff must show that the medical evidence supporting the State’s argument for the disclosure is flawed and not sufficiently reliable.[51]  To support the truthfulness of the information that is required to be disclosed, a state typically submits into evidence respected peer-review studies and medical journals that provide data showing that the required disclosure contains reliable health related information that a patient should be aware of.[52]  Therefore, federal courts have rarely found disclosure or informed consent provisions that appear in abortion regulations to be “untruthful” even if there exists some medical evidence contrary to the state’s position.[53] But, contrary medical evidence may support a plaintiff’s argument that the disclosure provision is misleading and irrelevant.[54] 

However, if the provision is considered “truthful,” it will not be ruled unconstitutionally misleading or irrelevant simply because of some degree of “medical and scientific uncertainty.”[55]   The Supreme Court “has given state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty” and “medial uncertainty does not foreclose the exercise of legislative power in the abortion context any more than it does in any other context.”[56]  Moreover, federal courts have noted that the “non-misleading” and “relevant” requirements of Casey do not create a basis for imposing a new, more stringent standard, which requires “medical certainty” of health risk information a physician is required to disclose because the procedure at issue is an abortion.  In other words, in order for a plaintiff to render a required disclosure or informed consent provision unconstitutionally misleading or irrelevant, the plaintiff would have to show that the health risk related information a physician would be required to disclose is ruled out, to a degree of scientifically accepted certainty, as a risk of abortion.[57]

In the end, federal courts have established that “the point of [required disclosure] or informed consent laws is to allow the patient to evaluate her condition and render her best decision under difficult circumstances.”[58]  Denying a patient up-to-date medical information hinders her ability to decide more than providing the information.[59]  Therefore, there is no unconstitutional hindrance of a woman’s choice when a state is merely using “its regulatory authority to require a physician to provide truthful, non-misleading information relevant to a patient’s decision to have an abortion.[60]

IV.  Comment

In its analysis, the Eighth Circuit correctly concluded that the suicide advisory provision of South Dakota’s abortion statute was truthful, non-misleading, and relevant to a patient’s informed decision.[61]  The Court’s decision was supported by established federal precedent, and contrary to the dissent’s position, was also supported by sufficient medical evidence. 

While there is compelling evidence to bolster the dissent’s position that suicide is not a known medical risk of abortion, the legal history, as highlighted by the majority, does not require legislative decisions to be based upon absolute medical certainty.[62]  The majority noted that as long as a legislative abortion provision is considered “truthful,” it will not be considered misleading or irrelevant simply because of some degree of medical or scientific uncertainty.[63]  The State offered medical evidence that displayed a correlation between suicide and abortion procedures that the Eighth Circuit felt was thorough and reliable enough to support the State’s argument that the suicide advisory provision was truthful.  Therefore, the mere presence of contrary evidence would not make the provision automatically misleading or irrelevant as the dissent attempts to propose. 

Although the information physicians are required to provide here constitutes a sensitive, disturbing, and controversial psychological medical risk that has been found to be potentially linked to abortion, the provision ultimately promoted the end purpose of informed consent laws: to adequately inform a woman’s free choice.  A patient should be provided with up-to-date medical information that will allow her to evaluate her condition and render her best decision under difficult circumstances.[64]  Denying a patient such information is more of an abuse to her ability to decide than providing the information.[65]

-  Haden Crumpton

[1]  Nos. 09-3231/3233/3362 (8th Cir. July 24, 2012), available at http://www.ca8.uscourts.gov/opndir/12/07/093231P.pdf. The West reporter citation is Planned Parenthood of Minnesota, North Dakota, South Dakota v. Rounds, 686 F.3d 889 (8th Cir. 2012) (en banc). 
[2]  Id. at 893. (remember to cite to the slip opinion “Rounds, slip op. at X.”) 
[3]  Initially, the district court granted the providers’ request for a preliminary injunction, and the case was subsequently appealed to the U.S. Court of Appeals for the Eighth Circuit where the injunction was vacated and the case remanded for further proceedings. See id.
[4]  See id. at 906. 
[5]  Id. at 892. 
[6]  See S.D. Codified Laws § 34-23A-10.1 (the statute does not require informed consent in the event of an emergency). 
[7]  Id. (Planned Parenthood also contended that other parts of the Act were “unconstitutionally vague”)
[8]  Id.; see also Planned Parenthood Minn., N.D., S.D., v. Rounds, 530 F.3d 724, 727 (8th Cir. 2008). 
[9]  Id.
[10]  See id.
[11]  Id.; see also S.D.C.L. § 34-23A-10.1(1)(c);  § 34-23A-10.1(10(e)(ii). 
[12]  Id. at 893. 
[13]  Id.
[14]  Id.
[15]  Id.
[16]  See id. at 906. 
[17]  Id.
[18]  Id. at 893. 
[19]  See id.; see also Planned Parenthood of Se. Penn. v. Casey, 505 U.S. 833, 882-83 (1992). 
[20]  Id.
[21]  Id.
[22]  Id. at 894. 
[23]  See id. at 896. 
[24]  See id. 
[25]  See id. at 898.
[26]  Id.
[27]  See id. at 899. 
[28]  See id.
[29]  Id.
[30]  See id.
[31]  Id.
[32]  See id. at 902 (Planned Parenthood also attempted to show that the FDA did not require the manufacturer of the abortion drug Mifeprex to list “increased risk of suicide” as a “potential safety hazard” associated with taking the drug.  The Court also rejected this argument, stating that “an FDA label does not represent the definitive or exclusive list of risks associated with a drug.”)
[33]  See id. at 904-05.
[34]  See id. at 905. 
[35]  See id. at 907 (J. Murphy dissent).
[36]  Id.
[37]  See id. 
[38]  See id. at 909. 
[39]  See id. at 912.
[40]  See Tex. Med. Providers Performing Abortion Servs v. Lakey, 667 F.3d 570 (5th Cir. 2012); see also Planned Parenthood of Se. Penn. v. Casey, 505 U.S. 833, 882-83 (1992). 
[41]  See generally Casey, 505 U.S. at 882 (1992). 
[42]  See id. at 884. 
[43]  See Casey, 505 U.S. at 834 (1992). 
[44]  See id. at 882-83. 
[45]  See id. at 884.
[46]  See id. (citations omitted).
[47]  Id.
[48]  See id.
[49]  see id.; see also Tex. Med. Providers Performing Abortion Servs. v. Lakey, 667 F.3d 570, 576-77 (5th Cir. 2012).
[50]  See Lakey, 667 F.3d at 576 (5th Cir. 2012).
[51]  See id; see also Planned Parenthood of Minn., N.D., S.D., v. Rounds, 686 F.3d 889, 892 (8th Cir. 2012). 
[52]  See Rounds, 686 F.3d at 898-99 (8th Cir. 2012). 
[53]  See Lakey, 667 F.3d at 576 (5ht Cir. 2012).
[54]  Id. at 576.
[55]  Id. at 577. 
[56]  See Gonzales, 505 U.S. 124, 163-64 (2007). 
[57]  See Rounds, 686 F.3d at 899 (8th Cir. 2012). 
[58]  See Lakey, 667 F.3d at 579 (5th Cir. 2012). 
[59]  See id. 
[60]  See Rounds, 686 F.3d at 899 (8th Cir. 2012) (slip opinion on all of these). 
[61]  See Rounds, 686 F.3d at 906 (8th Cir. 2012).
[62]  See id. at 900. 
[63]  Id. (citing Gonzales, 550 U.S. at 163 (2007)). 
[64]  Lakey, 667 F.3d at 579 (5th Cir. 2012).
[65]  Id.