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South Dakota’s Anti-Abortion “Counseling” Mandate Still Misogynist and Unconstitutional; Noem Still Hilarious

South Dakota loses another lawsuit, this time over its effort to force women to listen to lies and religious propaganda before aborting a pregnancy, and Governor Kristi Noem is cracking jokes:

Today’s decision by the District Court refused to dissolve the injunction, so the law passed by the people’s representatives is suspended until a final court decision is rendered. In doing so, the Court rejected the will of the people when it comes to protecting unborn life [Gov. Kristi Noem, press release, 2021.08.20].

Kristi Noem is mad that a court has overturned the will of the people.

Noem’s inconsistency is hilarious. Her disregard for women’s rights and the Constitution is not.

This injunction blocking most of 2011 House Bill 1217, a misogynist law inserting non-medical anti-abortion “counseling” agencies between women and their doctors, was first issued in June 2011. It’s been whittled down since as the law has changed, but the court still refuses to allow the state to force women to go to the Alpha Center in Sioux Falls, the Care Net Pregnancy Resource Center in Rapid City, or any other Handmaid’s Tale shop before terminating a pregnancy. Those Jesus shops and the theocrats they’ve sent to Pierre returned to court to argue that circumstances have changed since 2011 and the court should dissolve the injunction.

Judge Karen Schreier said no.

In her ruling (posted helpfully by SDPB, thank you!), Judge Schreier first rejected the anti-abortion intervenors’ argument that Planned Parenthood lacks standing to bring the lawsuit that prompted the injunction. Judge Schreier reminded the defendants that the law they are fighting for would subject Planned Parenthood and physicians to the threat of civil liability, so they have direct standing to challenge the law. Judge Schreier also noted that copious case law has recognized the standing of Planned Parenthood and abortion providers in general “to invoke the rights of their actual or potential patients in challenges to abortion-related regulations.” And Judge Schreier rejected the defendants’ argument that Planned Parenthood is opposing a law passed by the Legislature to protect pregnant women and thus itself cannot be an “effective proponent” of the rights of pregnant women. Unfooled by that circular usurpation of fact, Judge Schreier wrote, “Legislatures often enact restrictions on medical care and treatment to protect patients, but medical providers nonetheless continue to be the parties best positioned to challenge those laws.”

On the substance of the law and the injunction, the anti-abortion intervenors claimed that the due process clause of the Fourteenth Amendment (quoting from Schreier) “‘requires‘ the state to mandate counseling before a woman receives an abortion.” Judge Schreier noted that due process is “triggered by state action” [p. 11], and the state is not providing or authorizing abortions. Women seeking medical services at a Planned Parenthood clinic trigger no more obligation for intervention from the state than do my Aberdeen neighbors when they creak into the Millstone and order their 4:30 p.m. supper.

The anti-abortion clinics claimed that mandating counseling for women seeking abortions guarantees equal protection of parental rights. South Dakota law requires parents putting children up for adoption to sit for counseling before the court will terminate their parental rights; so, argue the intervenors, should the state require women to sit through counseling before terminating their parental rights with their fetuses. Judge Schreier agrees that “those who are similarly situated must be treated alike” but finds again that the analogy fails because there is no state action in the abortion process comparable to the court order in an adoption terminating parental rights: “a woman whose parental rights are being terminated by state action is not similarly situated to one who chooses to terminate those rights via abortion of an unborn child at a private clinic. Thus, the court finds PHC [pregnancy health centers] intervenors unlikely to succeed on the merits of their equal protection claim” [p. 13].

The intervenors claimed that the portions of the law compelling physicians to make certain statements to their patients do not violate the First Amendment but align with the recognized obligation of licensed physicians to give patients “truthful, nonmisleading information” to support informed consent. But Judge Schreier responded that 2011 HB 1217 compels women to speak to the anti-abortion counselors, disclosing “deeply personal information about her pregnancy to the pregnancy help center, along with her name and identifying information” [p. 14].

Judge Schreier found that compelling women to make such disclosures justified her injunction in 2011. Judge Schreier said that amendments to the anti-abortion counseling mandate since 2011 have only made the intrusions on women’s First Amendment rights worse:

The 2012 amendments increased the scope of counseling appointments, adding the ability for counselors to screen whether a woman seeking an abortion has been subjected to “pressure,” in addition to coercion. 2012 S.D. Sess. Laws ch. 186 § 7. That amendment broadens the scope of the counseling session and increases the personal issues that a woman may be asked to discuss.

The 2016 amendments mandate that pregnancy help center counseling be conducted in accordance with the Uniform Policy Procedures and Guidelines promulgated by the South Dakota Association of Registered Pregnancy Help Centers. 2016 S.D. Sess. Laws ch. 179 § 3. Those guidelines, in turn, require that before making an appointment, a pregnant woman give the center “her name, telephone number, name of the physician who referred her, and the address or location of the physician who referred her.”

The “1217 intake form”—which pregnancy help staff are required to fill out in its entirety—also must include “sufficient space to record the following information:”

  1. The reason for the phone call and the services sought by the woman;
  2. Full name of the client;
  3. A client identification number . . . ;
  4. Client’s telephone number and address;
  5. Whether the 1217 client needs a translator during the counseling session, and, if so, which language she speaks;
  6. A provision by which she either gives or declines permission to call her at the telephone number provided;
  7. Date of birth;
  8. Whether she has tested positive for pregnancy;
  9. Marital status;
  10. Whether she has already had a sonogram, and if so, where;
  11. First day of last menstrual period, number of weeks gestation, if known, or due date, if known;
  12. Whether she has been referred to a pregnancy help center by a physician with whom she met to have an abortion? Is she seeking consultation because an abortion doctor told her she must do so; [and]
  13. If so, the identity of the abortion provider . . . .

Even without contemplating the speech a pregnant woman would be compelled to divulge during a pregnancy help center interview, the pre-interview requirements alone demonstrate that the pregnancy help center requirement compels a pregnant woman to speak. During the interview itself, it is likely the pregnancy help center counselor would probe further into deeply personal issues, including how the pregnant woman’s parents reacted to her pregnancy, what “her boyfriend sa[id]” when informed about the pregnancy, and what advice friends had given her [Schreier, 2021.08.20, pp. 16–17].

So yes, circumstances have changed since Judge Schreier issued her original injunction in 2011; the Legislature has made it even easier to support an injunction on the grounds that the lawsuit is likely to prevail in court based in the infringements of women’s First Amendment rights.

In Friday’s ruling as in her original injunction ten years ago, Judge Schreier grants that the state has a “compelling interest in protecting a woman from being forced against her will to have an abortion” [p. 17]. But the state and the intervenors still haven’t proven that the state’s only way to satisfy this interest is to force every woman to submit to anti-abortion counseling. The state has never proven that Planned Parenthood or physicians are unable to advise women of their rights. Absent such proof, forced anti-abortion counseling goes too far.

The defendants and intervenors also failed to show any circumstances or evidence to change Judge Schreier’s original finding that “women were likely to feel ‘humiliate[d] and degrade[d]’ because of the requirement…. The ‘compulsive nature’ of the requirement suggests that a woman is incapabale of making the decision to an abortion or seek counseling on her own and is ‘not intelligent enough’ to make such a decision” [pp. 21–22]. The state would still force women who don’t want to go to an anti-abortion agency “into a hostile environment” where the “counselor enters an interview with a pregnant woman under the paternalistic assumption that the woman has not decided to seek an abortion of her own volition, but rather because she is unable to make a decision on her own and is subject to societal health pressures” [p. 22].

The defendants and the intervenors aver to the court that their mandatory counseling is “ideologically neutral,” but Judge Schreier sees through that thin smoke by looking at the intervenors’ own website:

…the centers’ facilities show a clear ideological opposition to abortion. One pregnancy help center, intervenor Alpha Center, boasts on its website a “Memorial Garden for the Unborn” that offers “a place of hope and recovery for women and families who are suffering the aftermath of abortion.” Docket 322-4; Memorial Garden for the Unborn, Alpha Center, https://alphacenterfriends.com/memorial-garden (last visited July 29, 2021). Alpha Center’s memorial garden claims that women who have had an abortion must seek “forgiveness and redemption.” Id. This evinces Alpha Center’s ideological opposition to abortion: the assumption that abortion, coerced or not, results in an “aftermath” and period of mourning and necessary “forgiveness and redemption” shows that Alpha Center considers abortion, coerced or not, immoral. A pregnant woman would be subjected to that messaging by merely attending a mandatory interview at Alpha Center’s facility. “[A] woman will likely be unwilling to actually consult with a pregnancy help center because she will fear being ridiculed, labeled a murderer, and subjected to anti-abortion ideology . . . .” Docket 39 at 20. Intervenors and state defendants have not shown any factual change that would alter that conclusion [Schreier, 2021.08.20, p. 23].

Alpha Center, screen cap by DFP 2021.08.21.
Yup, Alpha Center’s website still says what Judge Schreier said it says; Alpha Center, screen cap by DFP 2021.08.21.

Making matters worse, women may justifiably fear that these ideologues could further humiliate and degrade them by releasing their information to the public. The state has subsequently directed pregnancy health centers to follow “the spirit and requirements” of the Health Insurance Portability and Accountability Act of 1996, but anti-abortion agencies are not medical providers and are not subject to federal HIPAA enforcement, and South Dakota has not provided any civil enforcement to hold the anti-abortion counselors to HIPAA standards. The 2012 Legislature made knowing and intentional releases of such information Class 2 misdemeanors, but Judge Schreier says that doesn’t prevent accidental disclosures from non-medical providers not bound by federal standards for medical data security. We have the anti-abortion propagandists’ word that they’ll protect women’s privacy, “but voluntary compliance offers little to assure a pregnant woman that her data is secure” [p. 24].

Along with a lack of privacy and data security, the enjoined law lacks a guarantee that women will have timely access to qualified counselor. Judge Schreier notes that while the law requires the anti-abortion agencies to have some sort of licensed practitioner on staff, the acceptable licenseholders need not be counselors (ER nurses and marriage therapists also satisfy the requirement), and the law doesn’t require the actual counseling be done by the licensed staffer. Judge Schreier also recognizes a gap in the law that I noticed in 2011: “The pregnancy help center requirement does not include a statutory timeframe by which a pregnancy help center must schedule a counseling appointment: a pregnancy help center could wait as long as it wished, stalling for time and hampering a woman’s ability to access a pre-viability abortion. A woman could be prevented from receiving an abortion altogether because of the time she must wait to attend a counseling session [p. 27].”

Forcing women to submit to propaganda from anti-abortion ideologues is as unconstitutional in 2021 as it was in 2011, says Judge Schreier. Alas, since we now have a Governor seeking national headlines and running for President, expect much more public fuss and litigious feathers over this atrocious ten-year-old law that has yet to be enacted.

20 Comments

  1. Mark Anderson 2021-08-21

    You know Cory, my wife worked as Educational Director at Planned Parenthood in Sarasota for 21 years, until they gave that up. She had some scary times later on so it was probably a good thing. Anyway at a party one time I volunteered for a different abortion clinic whenever they needed help. Sarasota had two clinics, this one near out house. I thought it would be when someone didn’t show up but it turned out to be when they had a big group of protesters turn up. One of the protesters fascinated me. He carried a large cross, he had put little wheels on it so he could pull it up and down the sidewalk. I always imagined him making his own cross to bear. Anyway the clinic was near New College so I always had help monitoring the crowd. One time I actually helped save a fetus. The boyfriend wanted the abortion and they always checked with the woman to make sure. So I escorted him away and they called a cab for the woman. The best time was when a short haired girl from New College was called a boy by the crowd. She just threw up her top, no bra of course and said, “this look like a boy to you”. Those students were and are very liberal and didn’t take any sh-t from anyone. She also said something about little boys to the Catholic priest who was their with the group. So much for counseling.

  2. Jake 2021-08-21

    “Make women do all the above requirements forced by the state-but don’t make me wear a mask or get a shot!”
    REAL freedom, that’s where it’s at! The “kind for you and me-but not the guy behind the tree!
    What hypocrites we have running South Dakota!

  3. bearcreekbat 2021-08-21

    Two of the State’ positions really stand out.

    First, it is disheartening that the State apparently failed to understand, or, worse yet, intentionally misrepresented, the requirement of showing “state action” as a pre-requisite to invoking the “due process clause” against conduct of a private individual. First year law students are typically reminded over and over of that fundamental concept in their constitutional law class, although it is usually taught in most undergrad courses in constitutional law. What possibly justifies any attorney worth his or her salt from our state AG office from either failing to understand such a fundamental principle (if I am not mistaken this is also covered on ther bar exam), or worse yet, trying to get a court to disregard that fundamental restriction on the power of the state to limit completely private behavior. Perhaps an ethical lawyer could have argued that the “state action” requirement was a mistake by the SCOTUS and should be over-ruled as a matter of constitutional law, but to pretend it doesn’t control the Court’s actions is beyond pale.

    Second, making an argument that objectively available information reveals to be factually dishonest is grounds for attorney discipline, including possible disbarment. Here the argument that the State’s intended mandatory counseling is “ideologically neutral,” is a blatantly false statement, as indicated in the Court’s analysis.

    Making a frivolous argument is unethical and making a false factual claim is dishonest. It looks as if such tactics of lawyers like Sidney Powell and Rudy Giuliani have now infected the SD Attorney General’s office.

  4. mike from iowa 2021-08-21

    Your state chooses not to choose to protect citizens from pandemic, my body, my choice.

    Your state chose to choose to protect clumps of cells from their mothers. Her body, our choice.

    And your state has stacked undue burdens on top of undue burdens for women seeking to exercise their reproductive rights.

    Magat AGs appear to be cut from the same rotten cloth.

  5. grudznick 2021-08-21

    That is a very swell story Mr. Anderson. grudznick approves.

  6. kurtz 2021-08-21

    1. A pregnant woman is the patient.

    2. Ectopic pregnancies kill women.

    3. Rich women have full reproductive rights while women at the lower income margins suffer chilling effects on those rights. Women in Texas, Wyoming and South Dakota who can afford it simply jump on a plane and fly to Albuquerque, Minneapolis, Denver or elsewhere for their procedures. Imagine a woman on the Standing Rock or Pine Ridge doing that.

    4. South Dakota’s repeated attempts to restrict access to medical care are not only mean-spirited, they’re discriminatory anti-choice extremism.

    5. “Pro-life” is simply code for white people breeding. African-Americans terminate pregnancies at about the same per capita rate as white people do but don’t take their jobs. Latinas, however, have fewer abortions per capita but the extreme white wing laments it’s hemorrhaging jobs to Latinos.

    6. No foetus in the United States has any civil rights until the third trimester. Republicans preach civil rights for human zygotes but deny the protections of the First, Fourth and Ninth Amendments to people who enjoy cannabis.

    7. Ending reproductive rights in red states is Balkanizing women’s medical care.

  7. O 2021-08-21

    This shows the Theocratic approach the GOP has taken to governance. Moral dictates not supported by a majority of citizens are taken up by an ever more gerrymandered unrepresentative legislature. The real final straw has been the GOP persistent move to create a political, conservative, activist court system through judge appointments (and blockages) to cement these policy changes.

    I wish the “keep the government our of our religion” was a sentiment that flowed both ways. When the GOP decries a “war on religion” it is because they have weaponized religion to intrude in government more and more, so every defense is painted as an attack upon the church.

  8. Arlo Blundt 2021-08-21

    Well…the abortion “controversy (and I don’t think it is controversial…the right to abortion has been established law for nearly 50 years) has created a huge growth industry. Direct Mailers, Professional fund raisers, smarmy “not for profit” executives, tin horn preachers, and Lawyers all churn up a very nice pay day with every lawsuit. God save our Courts.

  9. grudznick 2021-08-21

    Here, in South Dakota, when you out-of-state name-callers show up and fill our emergency rooms because you are not vaccinated, grudznick protests on the street with the libbies to send the unvaccinated to the back of the lines. And I do so with a “your body, your choice” hat on my melon skull.

    Tell me I am not progressive enough for you out-of-state whiners who don’t bother to come here and protest on the ground, with grudznick.

  10. John Dale 2021-08-22

    Killing human babies in the womb is reprehensible.

    I don’t blame young women, who are subjected to an endless stream of “me first” and “anti-family” propaganda.

    Mostly, I blame the bureaucracy who has usurped control and power from elected leaders, then failed to use it to create a robust economy capable of supporting a family without both parents slaving.

  11. M 2021-08-22

    I suspect that the bad experiences you suffer from John Dale are not rape, incest, or pregnancy resulted from them.

    Impregnating women without their consent is reprehensible. Forcing them to birth those babies is reprehensible.

  12. Cory Allen Heidelberger Post author | 2021-08-22

    John Dale, you participate in the theocracy’s misogyny, denying women agency. Women know what they are doing when they exercise their right to end their pregnancies. They don’t need your protection from vague external influences.

    Or should we not blame men for rape and incest? Should we instead ascribe their actions to “me first” and “anti-family” propaganda?

    And while I’m thinking of it, I know where to find lots of “me first” propaganda (see any Trump/Noem rally or anti-vax protest), but where is this “endless stream” of “anti-family” propaganda? We still live in a society where people are viewed as weird if they aren’t settling down and raising a family.

    John Dale, you really aren’t speaking to reality. Too many of your arguments rest on a fantasy world.

  13. Cory Allen Heidelberger Post author | 2021-08-22

    Bearcreekbat, excellent point about the bad lawyering by the defense and intervenors. In this case, the legal malpractice is not unique to the Noem/Ravnsborg regime; I got the impression ten years ago when Judge Schreier initially enjoined HB 1217 that the state had offered some terrible legal arguments.

    I get the impression the state and Leslee Unruh and the other anti-abortion crusaders aren’t even trying to construct an honest, watertight legal argument; they’re just trying to keep cases alive long enough to get to a Supreme Court that will finally overlook the plain facts and meaning of words and will render a purely ideological decision in their favor.

  14. Richard Schriever 2021-08-22

    John Dale – Shall we require you by law to father 3-5 children? Or do you choose not to?

  15. bearcreekbat 2021-08-22

    Cory, great post from the way-back machine. Unfortunately for me I had yet to become aware of your exceptional blog or I undoubtedly would have commented back then as well as today.

    The AG lawyers’ arguments from 10 years old that you linked strike me as self-contradictory and indeed grasping for straws, yet they don’t appear to be downright dishonest or even blatantly contrary to settled constitutional law. Today’s claim that the State’s intended mandatory counseling is “ideologically neutral” seems much farther afield from a truthful or honest statement than anything argued 10 years ago in your link. And the point about compelling speech to private crusaders like Leslie Unruh for an “essential government function” seems laughable, but doesn’t seem as obviously frivolous, hence unethical, as the AG’s current argument that “due process” restricts a private woman’s actions despite the lack of the required “state action” connection.

    Despite these subtle differences, you still made a strong bad AG lawyering case way back then.

  16. Mark Anderson 2021-08-22

    Jezz, John Dale, I don’t blame you for the endless proper gander you sling either. Just feel sorry for you. I just wish you could meet some of those New College women, they would open your mind. You know they take control of their lives from the time they enroll at New College. Every student there sets up their own course of study from day one. I actually applied to teach there shortly before I retired when they had an opening. I just wanted to have a class with everyone in the class smarter than me. It would have been nice.

  17. ds 2021-08-22

    Surprised nobody caught the RC Journal in a proofreading error that suggest Noem’s anti-abortion opinion is factual…read this from Saturday August 21 page A7:
    https://rapidcityjournal.com/eedition/page-a7/page_413bb2f3-281a-54f3-ad61-e0b73de8d8f3.html
    …notice that the very last paragraph is obviously OPINION but has no quotation marks thereby presented as FACTUAL.
    BTW i am not a pro-life, pro-choice, or anti-abortion zealot… believe that family planning and reliable forms of birth control male and female would reduce considerably the need for elective abortion services. AND stricter laws aimed at irresponsible, controlling, abusive and violent males are needed. But when anti-abortion peoples expand to anti-birth control then i side with the right to choose.

  18. kurtz 2021-09-03

    Indigenous Women Rising has launched a fund for those in need of reproductive medical care.

    According to SD News Watch 132 South Dakota women traveled to Nebraska for their procedures last year, 152 women scheduled in Minnesota, ten women went to North Dakota, 123 South Dakota women found care in Colorado and Iowa saw a jump of at least 200 out of state women who sought medical care that South Dakota refuses to provide.

    New Mexico is the political inverse of my home state. It’s where if the lopsided Supreme Court of the United States ultimately overturns Roe v. Wade women will still be free to exercise their reproductive rights because Governor Michelle Lujan Grisham signed the Respect New Mexico Women and Families Act that repealed the 1969 state statute banning abortion. In New Mexico Medicaid covers abortions and even transportation in rural areas to get to clinics in Albuquerque.

    Now, red state governors have announced plans to compel even more women to go out of state for their procedures. These actions are not only the way the extreme white wing of the Republican Party raises money it’s designed to break Planned Parenthood in red states and drive abortions even further underground.

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