South Dakota appeals decision blocking requirement that pregnant women meet with pregnancy help center counselors prior to a scheduled abortion

By Dave Andrusko

As she promised she would in August, South Dakota’s pro-life Gov. Kristi Noem has filed her appeal brief with the U.S.  8th Circuit Court of Appeals in the case of Planned Parenthood v. Noem. HB 1217, a law passed in 2011, required that a pregnant woman consult with a pregnancy help center.

“Following last week’s historic oral arguments in the Dobbs case, South Dakota is moving forward with our legal fight to protect unborn lives,” said Gov.  Noem. “I look forward to the day when all life – born and unborn – is protected by law, and this litigation will be helpful in achieving that ultimate goal.”

As the governor’s office explained

The District Court had previously enjoined the provision in South Dakota state law requiring that a pregnant woman consult with a pregnancy help center, ensuring that she had all facts available and that she was not being coerced into an abortion, before deciding whether to abort her unborn child. The State of South Dakota appeals the District Court ruling to ensure that women considering an abortion have all of the facts regarding their unborn child, the potential risks of an abortion procedure, and to ensure that the mother is not being coerced into an abortion.

Pro-life advocates in South Dakota had waited patiently for almost a decade for a positive legal response to HB 1217. But with Judge Karen Schreier [a Clinton appointee] involved, the chances were slim to none. 

True to form, in September, Judge Schreier refused to dissolve the injunction she’d issued in June 2011 that blocked the consultation component. Fortunately, the three-day wait period eventually became law and remains in effect.

Judge Schreier’s 30-page decision was pro forma in every sense.

She tells us that “In the order granting preliminary injunction [handed down in 2011], the court… analyzed whether the pregnancy health center requirement operate[s] as a substantial obstacle to a woman’s choice to undergo an abortion ‘in a large fraction of the cases in which [it] is relevant,’ ” and is therefore invalid” [quoting another decision which quoted the Supreme Court’s 1992 Casey decision]. She also concluded the requirement “implicate[d] pregnant women’s free speech rights.”

Judge Schreier concluded the answer on both counts then and now was yes. Her conclusion read

No legal or factual change since the court’s preliminary injunction in 2011 warrants dissolution of the preliminary injunction of the pregnancy help center requirement. It continues to likely infringe on women’s right to free speech secured in the First Amendment, and it presents an undue burden on a woman’s right to access abortion.

But the state of South Dakota saw it very differently:

The record in this case reveals that pregnant women are being railroaded into abortions they do not want. Planned Parenthood of Minnesota, North Dakota and South Dakota (PPMNS), focused on the volume of abortions and bottom line revenue, cannot be counted on properly to inform a pregnant woman’s consent to abortion or to screen for or prevent coercion, and in fact will facilitate coerced abortions. To protect women against coerced abortions and to fill the void created by PPMNS’s deficient informed consent and screening practices, South Dakota enacted a statutory program providing women considering abortion free counseling at independent, third party, tightly regulated pregnancy help centers (PHCs). PPMNS challenged the third party counseling requirement as unconstitutionally compelling speech and unduly burdening abortion.  The district court granted a preliminary injunction in 2011 and, in 2021, after ten years of discovery and statutory amendments, denied defendants’ and intervenors’ joint motion to dissolve that injunction.                                                                                                                                       

This appeal followed.

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