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:”
- The reason for the phone call and the services sought by the woman;
- Full name of the client;
- A client identification number . . . ;
- Client’s telephone number and address;
- Whether the 1217 client needs a translator during the counseling session, and, if so, which language she speaks;
- A provision by which she either gives or declines permission to call her at the telephone number provided;
- Date of birth;
- Whether she has tested positive for pregnancy;
- Marital status;
- Whether she has already had a sonogram, and if so, where;
- First day of last menstrual period, number of weeks gestation, if known, or due date, if known;
- 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]
- 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].
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.