A great new 8th Circuit en banc (rehearing by the full court) opinion was delivered yesterday. It was simply a denial of Planned Parenthood's attempt to get a preliminary injunction to stay enforcement of the statute, and a preliminary injunction is always hard to get. Even so, an en banc Circuit court finding that "unborn = human" is true and relevant information is pretty powerful..
Planned Parenthood, etc. v. Mike Rounds
U.S. Court of Appeals Case No: 05-3093
U.S. District Court for the District of South Dakota
[PUBLISHED] [Gruender, Author, with Chief Judge Loken, Wollman, Murphy, Bye, Riley, Melloy, Smith, Colloton, Benton, and Shepherd, Circuit Judges] Civil Case - Constitutionality of State Statute; Preliminary Injunction. Grant of preliminary injunction preventing South Dakota statute regulating informed consent to abortion from becoming effective is vacated. District court erred in applying "fair chance of success" standard, as a substantial likelihood of success on merits - a showing that movant" is likely to prevail on the merits" - is required when implementation of state statute
following presumptively reasoned democratic processes is at issue. District court abused its discretion in granting preliminary injunction based on claim that physician's First Amendment rights to be free from compelled speech was violated and in failing to give effect to statutory definition of "human being" in other provision of the Act. Evidence did not support likelihood of prevailing on the merits, as information physicians were required to disclose was truthful, non-misleading and relevant to patient's decision to have an abortion. Chief Judge Loken concurs in the result. Judge Murphy, with Judges Wollman, Bye, and Melloy, dissents.
On the other hand, neither Casey nor any other precedent of which we are aware suggests the proposition that, where a physician is required to disclose truthful and non-misleading information as part of obtaining informed consent to a procedure, the physician's ability to disassociate from that truthful and non-misleading information is relevant to the compelled speech analysis. Because Planned Parenthood has failed to demonstrate the requisite likelihood of success on its claim that the disclosure required by § 7(1)(b) is untruthful or misleading, it has not demonstrated that there is an ideological message from which physicians need to disassociate themselves.10 Therefore, we need not reach the disassociation issue in the instant case.