An en banc panel of the U.S. Court of Appeals for the Eighth Circuit voted 7-4 to overturn a preliminary injunction against South Dakota’s statute requiring “informed consent” prior to an abortion. Among other things, the statute requires physicians to provide a written statement to a patient declaring “the abortion will terminate the life of a whole, separate, unique, living human being.”
The majority opinion in Planned Parenthood Minnesota v. Rounds recognized a higher standard of review for preliminary injunctions that enjoin the enforcement of a state statute. The opinion by Judge Raymond Gruender, instead of using the “fair chance” standard, which requires plaintiffs to show they have a fair chance of prevailing on the merits, now requires district courts to find that “a party is likely to prevail on the merits.”
In addition, instead of remanding the issue to the district court for consideration under the new standard, the court — applying an abuse of discretion standard — concluded that “Planned Parenthood’s evidence at the preliminary injunction stage does not demonstrate that it is likely to prevail,” and vacated the injunction.
The majority limited its review to the question of compelled speech, noting that the district court may address other arguments in support of a preliminary injunction upon remand.
The dissent, written by Judge Diana Murphy, argued that the court “bypassed important principles of Constitutional law” as well as “depart[ed] from established practice by not remanding for the district court to have the opportunity to apply the new standard.” The Court characterized the “South Dakota provisions [as] strikingly different from those which have passed constitutional muster,” saying “the obvious objective of the Act . . . is to use the concept of informed consent to eliminate abortions.”
Judge Murphy concluded the law “more than likely violates constitutionally recognized fundamental rights of women seeking an abortion and of attending physicians.” It “compel[s] doctors to communicate the state’s ideology,” and interferes “with the doctor patient relationship.”
The dissenters criticized the new standard, writing that its “pitfalls” include giving the “legislature unwarranted deference,” thereby “avoiding [the court’s] responsibility for careful scrutiny required by established law.” Regardless of which standard is used, according to the opinion, Planned Parenthood “is more than likely to prevail on the merits.”
Lower Court Rulings
The District Court had concluded the law was likely unconstitutional and granted a preliminary injunction. Upon appeal, a three-judge panel ruled 2-1 to uphold the injunction.