Friday, July 1, 2011

Update on South Dakota

Back in March South Dakota gov Dennis Daugaard signed into law a bill that would require women seeking an abortion to have a 72 hour wait, go to a "crisis pregnancy center", and that doctors must tell a women about all sorts of "complications" she may have due to the abortion. Remember: South Dakota has ONE clinic and its doctors must come in from out of state to provide abortion services.

Yesterday, one day before the law was to start taking effect, U.S. District Court Chief Judge Karen Schreier found in favor of Planned Parenthood, who sought an injunction of the law. You know, beyond the defunding via Medicaid, I think part of the strategy against Planned Parenthood is to drain them via legal fees and their now-constant need to battle for women in court. But I digress! Judge Schreier wrote a 61-page decision, some of which I'll excerpt, but you can also download and read it from here. As Reuters notes:
South Dakota has been at the center of some of the most bitter recent fights over abortion, which was legalized in 1973 by the U.S. Supreme Court in Roe v. Wade.

State lawmakers passed laws in 2006 and 2008 to ban most abortions unless they were necessary to save a woman's life. Voters later overturned both bans.
We've written A LOT on South Dakota and its attempts to ban abortion--which I noticed when I went looking for the post about the law. South Dakota was one, if you recall, who also proposed to make killing an abortion provider "justifiable homicide" (the bill was later shelved). Hostile is an understatement.

Onto Jude Schreier's ruling. The excerpts are long--and the ruling is truly an example of common sense and awesomeness.

On the Pregnancy Care Center clause (emphasis mine):
Defendants argue that the patients’ free speech rights are not implicated because a pregnant woman is only required to “speak” inasmuch as she is required to disclose that she is pregnant and that she has chosen to undergo an abortion. First, the plain language of the Pregnancy Help Center Requirements contradict defendants’ construction. Subsection 3(a) of section 3 states that the “pregnant mother must . . . have a private interview to discuss her circumstances that may subject her decision to coercion.” An interview necessarily requires questions and answers. And defendants offer no explanation on how an interview “to discuss her circumstances” could be done without the pregnant woman actually disclosing “her circumstances.”

Second, and in the alternative, if the pregnant woman does not have to actually discuss her circumstances during an interview and she only has to disclose that she is pregnant and has chosen to undergo an abortion, the Pregnancy Help Center Requirements still implicate the patient’s free speech rights. At the very least, the requirements on their face compel a patient to not only disclose that she is pregnant and is seeking an abortion, but also to disclose the name of her abortion physician so the pregnancy help center knows to whom to send the written statement or summary of assessment. See Section 6 of the Act (authorizing a pregnancy help center to forward “documents to the abortion physician”). This compelled disclosure necessarily reveals private factual information, such as she is pregnant, she is choosing to undergo an abortion, she has spoken with an abortion physician, and the name of her abortion physician. And she is being compelled to disclose this information to someone who is opposed5 to her decision to undergo an abortion. Even these “limited” compelled disclosures implicate the protection afforded by the First Amendment’s Free Speech Clause.


[...] If the woman wishes to consult with a pregnancy help center, read pamphlets, or study the website, she is free to do so. Because the Pregnancy Help Center Requirements only apply to women who have chosen to undergo an abortion, they do nothing to inform pregnant women who may not be seeking an abortion but are seeking information about alternatives to abortion and information about assistance for raising children.

Defendants argue that using printed materials or the patient’s physician to provide information to pregnant women who have chosen to undergo an abortion have not always been successful. Thus, according to defendants, the legislature is allowed to experiment with different message delivery mechanisms in an attempt to ensure that the woman is fully informed. The court rejects defendants’ underlying assumption that legislatures are allowed to use more intrusive means that regulate speech because the alternatives are not 100 percent successful in achieving a compelling state interest.

On the Crisis Center being an undue burden

With the relevant cases in mind, the next issue is whether the Pregnancy Help Center Requirements create “a substantial obstacle to a woman’s choice to undergo an abortion.” See Miller, 63 F.3d at 1458. The plain language of sections 3, 4, 5, and 6 makes it clear that a woman can obtain an abortion if, and only if, she first consults a pregnancy help center when she otherwise would not. Forcing a woman to divulge to a stranger at a pregnancy help center the fact that she has chosen to undergo an abortion humiliates and degrades her as a human being. The woman will feel degraded by the compulsive nature of the Pregnancy Help Center Requirements, which suggest that she has made the “wrong” decision, has not really “thought” about her decision to undergo an abortion, or is “not intelligent enough” to make the decision with the advice of a physician.

Furthermore, these women are forced into a hostile environment. Aside from its compulsive nature, the hostility of the consultation is evidenced by the fact that section 5 of the Act establishes that the only entities that can be listed on the state registry of pregnancy help centers are those that routinely “consult[] with women for the purpose of helping them keep their relationship with their unborn children” and that “one of [their] principal missions is to educate, counsel, and otherwise assist women to help them maintain their relationship with their unborn children.” A pregnancy help center cannot have even “referred any pregnant women for an abortion at any time in the three years immediately preceding July 1, 2011.” Requiring these women to “have a consultation,” and a “private interview” with a “pregnancy help center” destroys “[t]he right to avoid unwelcome speech” that is “protected in confrontational settings.” Cf. Hill v. Colorado, 530 U.S. 703, 717 (2000). And it forces an unnecessary confrontation on one of the most volatile subjects in America. See Stenberg v. Carhart, 530 U.S. at 920 (acknowledging that “[m]illions of Americans believe that . . . abortion is akin to causing the death of an innocent child”); Casey, 505 U.S. at 852 (recognizing that “some deem [abortions as] nothing short of an act of violence against innocent human life”).

There are clear ideological differences between a woman who has chosen to undergo an abortion and a “pregnancy help center.” When considering these differences, a woman will likely be unwilling to actually consult with a pregnancy help center because she will fear being ridiculed, labeled a murderer, subjected to anti-abortion ideology, and repeatedly contacted by the pregnancy help center. Moreover, a woman may likely believe, rightly or wrongly, that her decision to have an abortion could become public information. And it will not matter to her that in the future she may be able to obtain legal relief from the pregnancy help center worker who disclosed the information. By then it will be too late. Thus, rather than risk having such information being made public or to avoid “consulting” with someone who is not supportive of her decision to have an abortion, she will be forced to remain pregnant.

On the 72 hour waiting period:
With regard to whether the 72-Hour Requirement constitutes a substantial obstacle, plaintiffs argue with supporting evidence that women could be forced to wait up to one month between their initial consultation and the abortion procedure if the same physician is required to conduct both the initial consultation and the abortion. See Docket 10-6 at 6 (“[D]ue to the physicians’ schedules, a woman could be delayed up to a month in order to have two appointments with the same physician.”). This is because there is only one clinic in South Dakota, which provides abortions one day a week on average. Docket 10-6 at 4. And the three to four physicians who perform the abortions take turns flying into Sioux Falls about once a month. Docket 10-6 at 4. Defendants argue that such a delay will not occur because there is no requirement that the initial consultation be performed by the same physician who performs the abortion.


Even if the physician who performed the abortion was not required to have conducted the initial consultation, the 72-Hour Requirement still creates a substantial obstacle considering the circumstances that surround many of the women who choose to undergo an abortion in South Dakota. For example, 56 percent of women who chose to undergo an abortion “during the year beginning March 1, 2010,” had “incomes that [were] 100% or less than the federal poverty level.” Docket 10-6 at 4. And 87 percent of the women who chose to undergo an abortion during that same time period lived “at or below 200 percent of the [Federal Poverty Level].” Docket 10-6 at 4. Furthermore, approximately 30 percent of the women who chose to undergo an abortion during this time period traveled more than 150 miles to the abortion clinic, for a total of 300 miles. Docket 10-6 at 3.

Because the 72-Hour Requirement effectively requires two trips, almost every woman will be forced to cope with the financial burdens created by the additional trip. These burdens are great when considering the fact that approximately 87 percent of the women are at or below 200 percent of the Federal Poverty Level. For many of these women, it stands to reason that they will be unable to afford the second trip and will abstain from obtaining an abortion even though they have chosen to undergo one. And women who live farther away are even more likely to be unable to afford a second trip. The inability to pay for the additional trip also becomes worse for the women who are stay-at-home mothers because they will be required to make additional arrangements for childcare. Docket 10-6 at 4. And if a pregnant woman has a job, she will be required to take twice as much time off from work. Docket 10-6at 4. The court finds that these financial circumstances constitute a substantial obstacle for a large fraction of the relevant cases.

The effective doubling of the financial burden created by the 72-Hour Requirement is arguably insignificant when compared to the other obstacles created by the 72-hour delay. For example, even if the delay between the initial consultation and the abortion is only one week, pregnant women who choose to undergo an abortion can be denied the ability to undergo a medication abortion, which may be their chosen method of abortion, because of the delay. Docket 10-6 at 2-3. A medication abortion is only available until 9 weeks after the first day of the woman’s last menstrual period, after which time a surgical abortion is required. Docket 10-6 at 2. For those women who refuse to undergo a surgical abortion in such situations, the 72-Hour Requirement effectively denies them of their right to an abortion. As to those women who choose a surgical abortion near the end of the first trimester, the delay created by the 72-Hour Requirement will prevent them from being able to obtain any abortion in South Dakota because these abortions are only available through the first 13.6 weeks after the first day of the woman’s last menstrual period. Docket 10- 6 at 2-3. It stands to reason that the number of women who are effectively denied their right to undergo an abortion increases as the required period of delay increases.

Moreover, it is generally accepted that women are often the victims of abuse. And abusers often forcibly impregnate their partners to maintain control or increase their control over their women. Docket 10-7 at 7-8. [...] For those women who are in such relationships, the 72- Hour Requirement creates an incredible obstacle because it requires them to make separate trips, which for many is effectively impossible to do because two trips double the chances of being “caught” and punished by the abusive partner. Docket 10-7 at 9-10. [...]

On the "risk factors" requirement (what docs had to say to patients regarding "complications":
Under South Dakota law, when a statute is “not ambiguous,” “[i]t is to be assumed that [the statute] means what it says and that the legislature has said what it meant.” Kreager v. Blomstrom Oil Co., 298 N.W.2d 519, 521 (S.D. 1980) (citation omitted). Thus, the Act requires the physician to tell the patient about “any factor . . . for which there is a statistical association with an increased risk of” “any adverse physical, psychological, or emotional reaction, for which there is a statistical association with legal abortion, such that there is a less than five percent probability that the statistical association is due to sampling error” that can be found anywhere in the nearly forty years of published literature covered by the Act. The literature covered by the Act also includes studies conducted in countries where abortion may be legal, but not practiced as safely as in the United States. And nothing in the text of the statute permits physicians to use their medical judgment to avoid disclosing information that is untrue, misleading, or irrelevant.


Defendants argue that the physician is free to explain to the patient that this type of forced disclosure is untruthful or misleading. The court rejects this argument because even if the physician is allowed to tell the patient that the previously disclosed information is untruthful or misleading, then that information is irrelevant to the patient. And a physician cannot be forced to disclose information that is “untruthful, misleading or not relevant to the patient’s decision to have an abortion.” See Rounds, 530 F.3d at 735.


The second issue is whether the Risk Factors Requirement constitutes a substantial obstacle. The Risk Factors Requirement departs from standard medical practice by mandating that physicians identify, retrieve, and review every article published in English, after 1972, in every peer-reviewed journal indexed by PubMed or MEDLINE or PsycINFO that could trigger an assessment or disclosure obligation because it could include a “risk factor” or “complication” as defined in the Act. After this undertaking, physicians are required to assess every patient for the resulting list of “risk factors,” discuss the assessment, and disclose the associated “complications,” as well as “the rate at which those complications occur both in the general population and in the populations of persons with the risk factor.” See Section 3(6) of the Act.


Even if a physician could formulate a search and retrieve all of the required materials, the volume of articles the physician would have to review and analyze would be prohibitive. For example, a search for the term “abortion,” restricted to journals published in English between January 1973 and July 2010 yields more than 45,000 results in PubMed and more than 2,000 results in PsycInfo. Docket 10-12 at ¶ 24. Even ignoring the fact that some responsive articles will be missed in the above search, no physician could review the thousands of articles yielded by searching the two databases.


The barrier imposed by the Risk Factors Requirement is compounded by the Act’s provisions imposing civil liability on physicians who perform abortions. The Act creates a new civil action by the woman or her survivors against both the physician and the facility where the abortion was performed if the physician fails to comply with any of the Act’s requirements, including the Risk Factors Requirement. Future plaintiffs may receive a wide range of damages and attorneys’ fees.18 Moreover, the Act creates a presumption that a woman would not have had the abortion if the physician had complied with the Act’s requirements.

This presumption is a rebuttable presumption. But the Act provides that if a physician presents evidence rebutting the presumption, the “finder of fact” must determine whether the woman would have consented to the abortion “if she had been given . . . all information required by this Act to be disclosed[.]” See Section 9(3) of the Act. And as explained above, this includes information that is presented in an article as being true but is actually untrue and therefore misleading or irrelevant. Understandably, physicians will be unwilling to perform abortions when faced with likely litigation that will include this type of situation.


The third issue in the undue burden analysis is whether the Risk Factors Requirement is a substantial obstacle in a large fraction of the relevant cases. Every woman who chooses to undergo an abortion will be unable to obtain one because the Risk Factors Requirement applies to every woman who seeks an abortion in South Dakota and no physician will be able, or willing, to perform an abortion without violating these requirements. The Risk Factors Requirement is therefore a substantial obstacle in a large fraction of the relevant cases. Thus, plaintiffs are likely to demonstrate that the Risk Factors Requirement constitutes an undue burden on a woman’s constitutional right to a pre-viability abortion.
Governor Daugaard said he wasn't surprised by the ruling and thinks it is merely a "setback". He is particularly fond of that 72 hour period which he called in a written statement regarding the ruling "time to reflect and let women make good choices". (Ahem, fuck you.)

Leslee Unruh, who is a founder of one of the "crisis pregnancy centers" registered to provide "counseling" to women under the new law, is promising to file a motion to intervene in the lawsuit on the state's behalf:
Unruh said the Alpha Center plans to introduce evidence from the women who told South Dakota legislators that they'd been coerced into having abortions and that Planned Parenthood failed to learn that before going ahead with the procedure.

"I don't want those women to feel discouraged tonight," Unruh said Thursday. "I do feel very strongly that this law will ultimately be upheld."
Planned Parenthood is going to fight everything about that move. As for South Dakota itself:
Attorney General Marty Jackley said his staff intends to take time to fully digest the ruling before making its next move.

"At this point, I need to fully review the decision and discuss it with the attorneys involved in the case, the governor and legislative leadership," Jackley said.
And so they regroup to plan the next method of denying women access to health care.