Case Nos. 09-3231, 09-3233, 09-3362
IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

PLANNED PARENTHOOD MINNESOTA, NORTH DAKOTA,
SOUTH DAKOTA, and CAROL E. BALL, M.D.,
Plaintiffs-Appellees,
v.
MIKE ROUNDS, Governor, LARRY LONG, Attorney General,
in their official capacities,
Defendants-Appellants,
ALPHA CENTER, BLACK HILLS CRISIS PREGNANCY CENTER,
doing business as CARENET, DR. GLENN A. RIDDER, M.D.,
and ELEANOR D. LARSON, M.A., LSWA,
Intervening DefendantsAppellants

Appeal from the United States District Court for the District of South Dakota
Decision and Order filed
August 20, 2009, in 4:05-cv-01077-KES
Hon. Karen E. Schreier

BRIEF OF AMICI CURIAE, FAMILY RESEARCH COUNCIL, CARE NET,
HEARTBEAT INTERNATIONAL INC., AND NATIONAL INSTITUTE OF
FAMILY AND LIFE ADVOCATES, INC. IN SUPPORT OF APPELLANTS

(Counsel Listed on Following Page)

 Steven H. Aden
(DC Bar No. 466777)
ALLIANCE DEFENSE FUND
801 G St., N.W., Suite 509
Washington, DC 20001
Tel.: 202.393.8690
Fax: 202.347.3622
saden@telladf.org
Counsel for Amici Curiae

 CORPORATE DISCLOSURE STATEMENT
Family Research Council is a non-profit corporation with no parent
corporation and no stockholders.
Care Net is a non-profit corporation with no parent corporation and no
stockholders.
Heartbeat International, Inc. is a non-profit corporation with no parent
corporation and no stockholders.
The National Institute of Family and Life Advocates, Inc. is a non-profit
corporation with no parent corporation and no stockholders.

i

 TABLE OF CONTENTS
CORPORATE DISCLOSURE STATEMENT ...........................................................i
TABLE OF AUTHORITIES .....................................................................................iv
INTEREST OF AMICI CURIAE ................................................................................ 1
SUMMARY OF ARGUMENT .................................................................................. 3
PROCEDURAL HISTORY ........................................................................................ 4
ARGUMENT .............................................................................................................. 9
I.

PLAINTIFF-APPELLEE PLANNED PARENTHOOD LACKS STANDING. .................. 10

II.

PLAINTIFFS-APPELLEES LACK ARTICLE III STANDING TO CHALLENGE THE
RELATIONSHIP AND MEDICAL DISCLOSURES ON BEHALF OF THE THIRD
PARTY RIGHTS OF MOTHERS CONSIDERING ABORTION. .................................. 12

III.

A.

BECAUSE THE INFORMED CONSENT STATUTE WAS ENACTED TO
PROTECT PREGNANT MOTHERS FROM PLAINTIFFS’ OWN ABUSIVE
PRACTICES, THE INTERESTS OF PLAINTIFFS ARE IN CONFLICT WITH
THEIR PATIENTS, NOT IN ALIGNMENT WITH THEM................................ 17

B.

PLAINTIFFS-APPELLEES LACK STANDING TO ASSERT THE RIGHTS OF
WOMEN CONSIDERING ABORTION BECAUSE NOTHING HINDERS
THEM FROM ASSERTING THEIR OWN INTERESTS. ................................... 26

PLAINTIFFS-APPELLEES LACK ARTICLE III STANDING TO CHALLENGE THE
MEDICAL EMERGENCY EXCEPTION TO THE STATUTE WHERE THE RECORD
REVEALS THAT THEY DO NOT PERFORM EMERGENCY ABORTIONS. ................ 27

CONCLUSION ......................................................................................................... 28
CERTIFICATE OF COMPLIANCE WITH RULE 32(a)........................................ 30
ii

 CERTIFICATION THAT CD-ROM COPY IS VIRUS FREE ................................ 31
CERTIFICATE OF SERVICE ................................................................................. 32

iii

 TABLE OF AUTHORITIES
CASES
Allen v. Wright,
468 U.S. 737 (1984) ........................................................................................ 13
Baker v. Carr,
369 U.S. 186 (1962) .......................................................................................... 9
Barrows v. Jackson,
346 U.S. 249 (1953) ..................................................................................12, 26
Bender v. Williamsport,
475 U.S. 534 (1986) .......................................................................................... 8
Broadrick v. Oklahoma,
413 U.S. 601 (1973) ........................................................................................ 11
Diamond v. Charles,
476 U.S. 54 (1986) ............................................................................................ 9
Doe v. Bolton,
410 U.S. 179 (1973) ..................................................................................15, 27
Elk Grove Unified Sch. Dist. v. Newdow,
542 U.S. 1 (2004) ...............................................................................13, 14, 20
Hein v. Freedom from Religion Foundation, Inc.,
551 U.S. 587 (2007) ........................................................................................ 11
Kowalski v. Tesmer,
543 U.S. 125 (2004) ............................................................................13, 14, 27
Los Angeles Police Dep’t v. Untied Reporting Publ’g Corp.,
528 U.S. 32 (1999) ............................................................................................ 9
Lujan v. Defenders of Wildlife,
504 U.S. 555 (1992) .......................................................................................... 4
iv

 Meyer v. Nebraska,
262 U.S. 390 (1923) ........................................................................................ 22
Osediacz v. City of Cranston,
414 F.3d 136 (1st Cir. 2005).......................................................................... 11
Pierce v. Society of Sisters,
268 U.S. 510 (1925) ........................................................................................ 22
Planned Parenthood v. Rounds,
530 F.3d 724 (8th Cir. 2008) ............................................................................ 5
Planned Parenthood v. Rounds,
375 F. Supp. 2d 881 (Dist. S.D. 2005).............................................................. 4
Planned Parenthood v. Rounds,
467 F.3d 716 (8th Cir. 2006) ........................................................................ 4-5
Planned Parenthood v. Rounds,
650 F. Supp. 2d 972 (Dist. S.D. 2009).......................................................... 6-8
Powers v. Ohio,
499 U.S. 400 (1991) .................................................................................. 13-14
Roe v. Wade,
410 U.S. 113 (1973) ............................................................................ 15-16, 27
Singleton v. Wulff,
428 U.S. 106 (1976) .................................................................. 7, 12, 14-17, 20
Summers v. Earth Island Inst.,
__ U.S.__, 129 S. Ct. 1142 (2009) .................................................................... 9
Troxel v. Granville,
530 U.S. 57 (2000) .......................................................................................... 22

v

 United States v. Foley,
73 F.3d 484 (2nd Cir. 1996).............................................................................. 8
United States v. Students Challenging Regulatory Agency Procedures,
412 U.S. 669 (1973) ......................................................................................... 9
Warth v. Seldin,
422 U.S.498 (1975) ...............................................................................9, 12, 13
STATUTES
SDCL § 34-23A-1(7) ................................................................................................ 10
SDCL § 34-23A.10.1 ................................................................................................ 11
SDCL § 34-23A-10.2 ................................................................................................ 11
SDCL § 34-23A-22 ................................................................................................... 11
SDCL § 34-23A-23 ................................................................................................... 27
SDCL § 36-4-8.1 ....................................................................................................... 10

OTHER AUTHORITIES
Hearing on House Bills 1166 and 1233 Before the House State Affairs
Comm. (S.D. Feb. 9, 2005) ................................................................................. 22-23
Hearing Re: House Bills 1166, 1233, 1249 Before the Senate State
Affairs Comm. (S.D. Feb. 23, 2005) ......................................................................... 23
Report of the South Dakota Task Force to Study Abortion (December 2005),
available at http://www.docstoc.com/docs/2912381/REPORT-OF-THESOUTH-DAKOTA-TASK-FORCE-TO-STUDY-ABORTION (last viewed
Jan. 21, 2010) ............................................................................................... 17-19, 23

vi

 INTEREST OF AMICI CURIAE1
Family Research Council (“FRC”) is a non-profit organization located in
Washington, D.C. that exists to develop and analyze governmental policies that
affect the family. FRC is committed to strengthening traditional families in
America and advocates continuously on behalf of policies designed to accomplish
that goal. FRC contends that many women who undergo an abortion experience
unexpected emotional and physical harms, including infertility, which they might
not risk if adequately informed about the potential harms. Accordingly, FRC
further contends that the interests of abortion providers conflict with the interests of
women considering abortion. Thus, FRC argues that abortion providers lack
standing under Article III of the United States Constitution to assert the third party
rights of women considering abortion in their challenge to the South Dakota
“informed consent” law found at S.D.C.L. § 34-23A.10.1(1).
Care Net is a District of Columbia non-profit corporation which serves as the
largest affiliation organization for pregnancy resource centers in North America.
The mission of Care Net is to promote a culture of life through the delivery of
valuable, life-affirming, evangelistic ministry to people facing unplanned
pregnancies and related sexual issues. To accomplish this mission, Care Net

1

Amici file this brief by the consent of all parties.
1

 provides education, support and training for its 1190 affiliate pregnancy centers in
the United States and Canada, four of which are located in South Dakota. Care Net
pregnancy centers serve approximately 372,000 clients annually.
Heartbeat International ("Heartbeat") is a non-profit organization located in
Columbus, Ohio. Heartbeat is an interdenominational Christian association of
faith-based pregnancy resource centers, medical clinics, maternity homes, and
nonprofit adoption agencies. Since 1971, Heartbeat has supported, strengthened and
started more than 1,500 pregnancy centers. Currently, Heartbeat serves over 1,100
affiliates in nearly 50 countries to provide alternatives to abortion. Heartbeat’s
affiliates know first-hand the pain that women feel after going through an abortion
experience. Several Executive Directors who run pregnancy centers have
themselves experienced abortion: and now seek to assist other women facing this
life-changing decision. In addition, many Heartbeat affiliates offer post-abortion
healing programs to bring healing to women and men affected by an abortion
decision.
Heartbeat affiliates have also seen the profound impact that true informed
consent has on women who are considering abortion. The vast majority of women
who view an ultrasound of their unborn child, choose life for that child. Women are
entitled to all of the facts about the development of their unborn child, the abortion
2

 procedure that they are considering, and the risks of that procedure to their physical
and emotional well-being.
The National Institute of Family and Life Advocates (NIFLA) is a charitable
501(c)(3) tax-exempt organization which exists to provide life-affirming Pregnancy
Help Centers the best legal education, consultation, and training possible. NIFLA
empowers women to choose life by equipping Pregnancy Help Centers with legal
counsel and support, enabling Pregnancy Help Centers to convert to medical clinic
status and energizing Pregnancy Help Centers with a renewed vision for the future.
Currently NIFLA has more than 1,195 member Pregnancy Help Centers in all 50
states.
SUMMARY OF ARGUMENT
Amici urge this Court to rule that Plaintiffs-Appellees lack standing to bring
this action. Planned Parenthood entirely lacks Article III standing because it is not
a “physician” subject to the challenged statute. Plaintiffs-Appellees lack prudential
standing to represent the third party interests of women considering abortion.
Finally, Plaintiffs-Appellees lack Article III standing to challenge the “medical
emergency” provision of the statute because none of the four providers at Planned
Parenthood’s Sioux Falls location will foreseeably face emergent situations.

3

 PROCEDURAL HISTORY
The party seeking to invoke the federal court’s jurisdiction - normally, the
plaintiff - bears the burden of pleading and proof on each step of the standing
analysis. Lujan v. Defenders of Wildlife, 504 U.S. 555, at 561 (1992). PlaintiffsAppellees’ First Amended Complaint (Docket #208, filed August 10, 2006),
challenged the informed consent provisions as violative of “the physicians’ First
and Fourteenth Amendment rights.” Id. at 2, ¶ 2; at 8, ¶ 17. Plaintiffs-Appellees
also asserted their patients’ rights to be free from coerced exposure to the State’s
message under the First and Fourteenth Amendments. Id. at 2, ¶ 3; at 8, ¶ 18.
The District Court did not consider standing in granting Plaintiffs-Appellees’
Motion for Preliminary Injunction in the first instance. Planned Parenthood v.
Rounds, 375 F. Supp. 2d 881 (Dist. S.D. 2005).

On their first appeal to the

Eighth Circuit, Appellants-Defendants and Appellants-Intervenors raised the issue
of Plaintiffs-Appellees’ standing to assert claims belonging to their patients.
Nonetheless, the panel ruled that the abortion providers did have standing to
challenge the informed consent provisions by representing the interests of women
considering abortion:
Although ordinarily one may not claim standing to assert the rights of a
third party, the Supreme Court has carved out an exception for
physicians asserting their patients’ right to have access to abortion.
Singleton v. Wulff, 428 U.S. 106, 114-18 (1976). Singleton did not
4

 adopt a per se rule, id. at 118 n. 7, but the Court has never held since
then that a physician lacks standing in this context. The test is not
whether interests are perfectly aligned, but whether the plaintiff
physician will “adequately represent” the absent woman's
constitutional rights. Okpalobi v. Foster, 190 F.3d 337, 353 (5th
Cir.1999). We conclude that Planned Parenthood has standing here to
assert the liberty interest of its patients.
Planned Parenthood v. Rounds, 467 F.3d 716, 726 (8th Cir. 2006) (emphasis added;
interior citations omitted). Intervenors urged the Eighth Circuit to review the
panel’s decision on standing among other issues, Petition for Rehearing and Petition
for Rehearing En Banc on Behalf of Intervenors Alpha Center, et al., Appeal No.
05-3093, filed November 10, 2006 at 25-26, but while the full Court granted en
banc rehearing, it did not consider the issue in its opinion. See generally Planned
Parenthood v. Rounds, 530 F.3d 724 (8th Cir. 2008) (en banc). However, as the
full Court of Appeals noted, “[t]he district court granted the preliminary injunction
based solely on Planned Parenthood’s claim that [the biological disclosure] violates
physicians’ First Amendment rights to be free from being compelled to speak.” 530
F.3d at 733. Thus, insofar as standing to bring the physicians’ own claims under
the First Amendment coerced speech doctrine is perhaps the only strong link in
Plaintiffs-Appellees’ asserted chain of Article III standing, the District Court’s
analysis was arguably unnecessary dicta.
On remand, Intervenors again raised the issue of Plaintiffs-Appellees’
5

 standing to bring claims on behalf of their patients. The District Court’s opinion on
summary judgment did not discuss standing in the context of the First Amendment
and vagueness challenges to the informed consent provisions, nor, arguably, need it
have, except to clarify that any standing possessed by a “physician” who is subject
to the terms of the Act does not extend to third parties such as Planned Parenthood
and the physicians’ patients.

The court did, however, engage in an extended

discussion of Plaintiffs-Appellees’ standing to challenge the “medical emergency”
exception. Planned Parenthood v. Rounds, 650 F. Supp. 2d 972, 984 (Dist. S.D.
2009). Relying principally on the United States Supreme Court’s decision in Doe v.
Bolton (410 U.S. 179, 188 (1973)), the court found that the Plaintiffs-Appellees
possess standing “because they are challenging a statute that may subject them to
criminal prosecution.” Planned Parenthood, 650 F. Supp. 2d at 984. With no
explanation of its reasoning and no record citation, the court conclusorily stated,
“The physicians at Planned Parenthood have stated their intention to continue to
perform abortions for patients, some of whom may require an emergency abortion.”
Id.
Turning to the question of Plaintiffs-Appellees’ standing to assert their
patient’s rights, the District Court noted that a plaintiff may assert the rights of
others where two factual elements are present: “The first is the relationship of the
6

 litigant to the person whose right he seeks to assert.” Id. at 985, quoting Singleton
v. Wulff, 428 U.S. 106, 114 (1976). “The other factual element to which the Court
has looked is the ability of the third-party to assert his own right.” Id., quoting
Singleton, 428 U.S. at 115-16. As to the first element, the court held based on
Singleton’s plurality opinion that the Plaintiffs-Appellees have a “close
relationship” with women considering abortion:
Here, as in Singleton, a woman needs the aid of a physician to undergo
a safe abortion procedure, the statute in question puts a woman's right
to an abortion into jeopardy, and the physician is significantly involved
in a woman's abortion decision. Accordingly, as in Singleton, in the
instant case, physicians are qualified to litigate the constitutionality of
the state statute which regulates abortions because of their intimate
relationship with their patients.
Id. The court further concluded that “[P]laintiffs’ interests align with those of their
patients in the event a medical emergency arises, such that they can provide proper
representation of those rights.” Id. at 986.
Regarding the ability of the third-party patients to assert their own rights, the
District Court again cited the Singleton plurality’s conclusion that obstacles exist to
a woman’s assertion of her right to an abortion:
Using [Singleton] as guidance, the court finds that plaintiffs’ patients
do indeed face genuine obstacles to asserting their claims. A woman
needing an abortion in an emergency situation would face the obstacle
of imminent mootness. Her rights would be lost in a very short, limited
period of time. Further, women may be hindered from asserting their
rights because they do not want their health care decisions to be public
7

 information. Accordingly, the court finds that plaintiffs also meet the
second consideration for third-party standing because of the difficulty
a woman faces in pursuing her own claim.
Id. In other words, the court relied on the same factors stated in Singleton by
parroting the plurality opinion in that case, without regard to the record in the
present case and without regard to the fact that the Supreme Court has made it clear
that mootness and privacy concerns are no barrier to women bringing an abortion
case. It thus remains for this Court to ascertain whether Plaintiffs-Appellees
possess Article III jurisdictional and prudential standing to bring this case in light of
the well-developed record below.2 For the reasons discussed below, the Court’s
Amici assert that they do not. Because the court erred by ruling that the abortion
providers meet the requirements of jurisprudential and prudential standing, Planned
Parenthood should be dismissed entirely and Plaintiff Ball’s claims on behalf of her
patients should likewise be dismissed. Moreover, Plaintiffs-Appellees’ challenge to
the medical emergency provisions should also be dismissed because, on their own
admission, Planned Parenthood’s contract physicians do not provide “emergency”

2

That the parties did not raise Planned Parenthood’s standing or the standing
of Plaintiffs viz. the informed consent provisions is no bar to this Court’s
consideration of those jurisdictional issues. “[A]n appellate court that sees that the
lower court proceeded without subject matter jurisdiction must correct the error
even if neither party brought it to the lower court’s attention.” United States v.
Foley, 73 F.3d 484, 487 (2nd Cir. 1996), citing Bender v. Williamsport, 475 U.S.
534, 540 (1986).
8

 abortions and will not foreseeably face such situations.
ARGUMENT
The standing requirement ensures that “the decision to seek review” is not
“placed in the hands of ‘concerned bystanders,’ who will use it simply as a ‘vehicle
for the vindication of value interests.’” Diamond v. Charles, 476 U.S. 54, 62
(1986) (quoting United States v. Students Challenging Regulatory Agency
Procedures, 412 U.S. 669, 687 (1973)). “[F]ederal courts [must] satisfy themselves
that the plaintiff has ‘alleged such a personal stake in the outcome of the
controversy’ as to warrant his invocation of federal-court jurisdiction.” Summers v.
Earth Island Inst., __ U.S. __, 129 S. Ct. 1142, 1149 (2009) (quoting Warth v.
Seldin, 422 U.S. 490, 498 (1975)).
Requiring that plaintiffs have been directly impacted by challenged
governmental enactments “assure[s] that concrete adverseness which sharpens the
presentation of issues.” Baker v. Carr, 369 U.S. 186, 204 (1962). “By focusing on
the factual situation” presented to the court by a plaintiff whose own interests are
truly at stake, courts ensure that they are adjudicating “‘flesh and blood’ legal
problems with data ‘relevant and adequate to an informed judgment.’” Los Angeles
Police Dep’t v. United Reporting Publ’g Corp., 528 U.S. 32, 39 (1999).
This Court should rule that the Plaintiffs-Appellees lack standing to represent
9

 the interests of women considering abortion in this case.
I.

PLAINTIFF-APPELLEE PLANNED PARENTHOOD LACKS STANDING.
Planned Parenthood cannot demonstrate the requisite personal stake in this

controversy that is the hallmark of Article III jurisprudence. Planned Parenthood is
a Minnesota corporation doing business as a foreign corporation in South Dakota.
First Amended Compl., at 4, ¶ 10. Although it arranges for the performance of
abortions in its Sioux Falls location, it is not a “physician” within the meaning of
South Dakota Codified Laws § 34-23A-10.1. See SDCL § 34-23A-1(7)
(“Physician” defined as “a person licensed under the provisions of chapter 36-4”).
In fact, “[I]t is the public policy of [South Dakota] that a corporation may not
practice medicine or osteopathy.” SDCL § 36-4-8.1.
It is the physician, not the corporation contracting with the physician, who is
required to obtain full informed consent under the statute. The obligations are
individual and personal to the physician; she must obtain voluntary and informed
written consent from the mother before performing an abortion, or determine that a
medical emergency exists and that the conditions for deemed waiver of consent
pertain.3 It is the physician who must counsel mothers and document their

3

For the reasons set forth below, however, the Court’s Amici urge that
Plaintiffs-Appellees lack standing to challenge the emergency exception because
the Planned Parenthood physicians perform no emergency abortions.
10

 understanding in the medical chart. SDCL § 34-23A-10.1. And it is the physician,
not her employer, that stands in jeopardy of criminal and civil liability for failing to
adhere to the law’s provisions. SDCL § 34-23A-10.2 (criminal liability provision);
SDCL § 34-23A-22 (civil liability provision).
Planned Parenthood has no responsibilities and carries no liabilities under the
challenged statute. Consequently, its interest in this lawsuit is vicarious of the
rights of its contract workers and/or its patients. As to the First Amendment
coerced speech claims, it is well established that outside of the overbreadth context
(see, e.g., Broadrick v. Oklahoma, 413 U.S. 601(1973)), which is inapplicable here,
third parties lack standing to enforce the First Amendment free speech claims of
others. Osediacz v. City of Cranston, 414 F.3d 136, 142-143 (1st Cir. 2005)
(resident lacked standing to bring Free Speech Clause claim on behalf of other
residents who allegedly were being subjected to prior restraint). And absent the
injury in fact required for Article III jurisdiction, a claimant may not come into
court at all, however interested it may be in the outcome. Hein v. Freedom from
Religion Foundation, Inc., 551 U.S. 587 (2007) (plurality opinion). Moreover,
while case law has suggested that under certain limited circumstances a physician
may bring suit on behalf of his patients’ Fourteenth Amendment substantive due

11

 process rights, e.g., Singleton v. Wulff, supra,4 Planned Parenthood is not a
“physician.” Planned Parenthood did not plead that it brought this lawsuit on behalf
of its patients or on behalf of Dr. Ball, though it did assert its own interests as an
“abortion provider” - a term that Amici argue conveys no legal import under the
South Dakota statutes or Article III standing jurisprudence. Planned Parenthood
“provides” abortions only through its contract physicians, including Plaintiff Dr.
Carol Ball, who presents her own claims as a Plaintiff. Consequently, Planned
Parenthood is not a proper party to this action and should be dismissed.
II.

PLAINTIFFS-APPELLEES LACK ARTICLE III STANDING TO
CHALLENGE THE RELATIONSHIP AND MEDICAL DISCLOSURES ON
BEHALF OF THE THIRD PARTY RIGHTS OF MOTHERS CONSIDERING
ABORTION.
Dr. Ball pleads that she brings this lawsuit “on her own behalf and on behalf

of her patients.” First Amend. Compl., at 5, ¶ 11. However, although Dr. Ball’s
standing to assert her own First and Fourteenth Amendment free speech and
vagueness claims may be colorable, she may not bring the First Amendment claims
of third parties for the reasons discussed above. Moroever, Dr. Ball utterly fails to
meet the requisite elements for third-party standing to assert the Fourteenth
Amendment substantive due process rights of her patients under Singleton and
For the reasons set forth below, however, Amici argue that the instant case is
not an appropriate case for the application of the rule announced by the plurality in
Singleton.
4

12

 similar cases. Accordingly, she may not challenge the “medical emergency”
exception on behalf of her patients.
Article III’s “case or controversy” provision requires plaintiffs to “assert
[their] own legal rights and interests, and [they] cannot rest [their] claim to relief on
the legal rights or interests of third parties.” Warth v. Seldin, 422 U.S.498, 499
(1975); Barrows v. Jackson, 346 U.S. 249, 255 (1953) (“Ordinarily, one may not
claim standing… to vindicate the constitutional rights of some third party.”).
“[P]rudential standing encompasses ‘the general prohibition on a litigant’s raising
another person’s legal rights.’” Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S.
1, 12 (2004) (quoting Allen v. Wright, 468 U.S. 737, 751 (1984)). This presumption
against third party standing is not absolute, and the Supreme Court has permitted
parties to represent the constitutional claims of third parties when they meet two
criteria: (1) when the “party asserting the right has a ‘close’ relationship with the
person who possesses the right,” and (2) when there is “a ‘hindrance’ to the
possessor’s ability to protect his own interests.” Kowalski v. Tesmer, 543 U.S. 125,
129-130 (2004), citing Powers v. Ohio, 499 U.S. 400, 411(1991). PlaintiffAppellees meet neither of these two criteria. Abortion providers have no real
relationship, let alone a “close relationship,” with women considering abortion.
Planned Parenthood’s manner of providing abortions through contract workers
13

 bears no resemblance to the venerated traditional physician-patient relationship
contemplated by the Supreme Court in its seminal abortion cases, so much so that
their interests are at odds with those of their patients in crucial aspects. They also
fail the second Kowalski factor, as there is no “hindrance” to women asserting their
own rights in court.
The lower court erroneously relied on the plurality opinion in Singleton v.
Wulff5 as generally authorizing abortion providers to represent the interests of
women considering abortion. The court did not examine the significant differences

5

Only three Justices joined Justice Blackmun in holding that abortion
physicians may bring the Fourteenth Amendment claims of their patients. 428 U.S.
at 108. Justice Stevens concurred in part, but stated that he was “not sure whether
the analysis” in that part of the plurality’s opinion “would, or should, sustain the
doctors’ standing,” id. at 121-22, and consequently declined to join that part of the
opinion. Justice Powell, joined by the Chief Justice and Justices Stewart and
Rehnquist, dissented from that part of the plurality opinion. Id. at 122.
Moreover, a broad reading of Singleton is no longer tenable in light of the
Supreme Court’s virtually unbroken string of decisions more strictly construing
both jurisdictional and prudential standing in the last several years. See, e.g.,
Kowalski, supra (holding attorneys lacked prudential standing to represent the
interests of their clients); Newdow, supra and discussion, infra (holding that a father
lacked prudential standing to represent the interests of his daughter where their
positions were in conflict); Hein, supra (restricting Article III taxpayer standing);
and Summers, supra (restricting Article III standing in environmental cases). The
Supreme Court has before it a petition addressing whether “offended observer”
standing in Establishment Clause cases contravenes the Article III “injury in fact”
requirement. Salazar, Sec. of Interior v. Buono, Docket No. 08-472 (argued
October 7, 2010). The Court’s decision in that case is forthcoming, and may be
instructive for the Court of Appeals in considering Plaintiffs-Appellees’ standing.
14

 between this case and Singleton, and should not have relied upon it to allow third
party standing in this case. Singleton involved a suit in which abortion providers
sought to recover payment from the State of Missouri for abortions they performed
for women on public assistance. 428 U.S. at 109. There was no potential conflict
of interest between the abortionists and their patients under those circumstances.
Further, although the women in Singleton could have brought their own
lawsuit, the Supreme Court allowed the abortion providers to represent the interests
of the women for two reasons, neither of which apply here (and arguably did not
exist in Singleton, either). First, the Supreme Court allowed the abortion providers
to represent women who obtained abortions because such women “may be chilled
from such assertion by a desire to protect the very privacy of her decision from the
publicity of a court suit.” Id. at 117. However, women frequently appear as
plaintiffs in abortion-related lawsuits and hide their identities with pseudonyms.
Indeed, the Supreme Court’s major decisions on abortion, Roe v. Wade, 410 U.S.
113 (1973) and Doe v. Bolton, 410 U.S. 179 (1973) were brought by women using
aliases to hide their identities. Women in South Dakota who believe the informed
consent statute interferes with their right to abortion could bring such a lawsuit and
effectively hide their identities as the women did in Roe and Doe.
The Singleton plurality’s second reason why abortion providers could
15

 represent the third party interests of women who had abortions was the fact that a
woman makes the decision to get an abortion in only a few months of pregnancy,
and that “her right [to an abortion] will have been irrevocably lost, assuming, as it
seems fair to assume, that unless the impecunious woman can establish Medicaid
eligibility she must forgo abortion.” Singleton, 428 U.S. at 117. However, the
plurality admitted that this obstacle could be overcome by asserting the exception to
the mootness doctrine for situations that are “capable of repetition yet evading
review,” 428 U.S. at 117, quoting Roe v. Wade, 410 U.S. at 124-25. The Singleton
plurality also admitted that a class action would avoid the mootness problem of
pregnancy being too short a time to litigate claims to a right to abortion in federal
court actions lasting several years. Id. The Court allowed abortion providers to
represent women who had abortions nonetheless, stating that because the courts
allow “the assertion of the right is to be ‘representative’ to such an extent anyway,
there seems little loss in terms of effective advocacy from allowing its assertion by
a physician.” Singleton, 428 at 117-18. Here, there is much to be lost if Planned
Parenthood and its physicians are permitted to “advocate” for women considering
their services even though the statute they challenge was enacted by the State of
South Dakota to protect women from Planned Parenthood’s own practices. For the
reasons discussed below, the record in the appeal before the Court presents none of
16

 the factors relied on in Singleton to find standing, and the District Court was
therefore in error in relying upon it.
A.

BECAUSE THE INFORMED CONSENT STATUTE WAS ENACTED
TO PROTECT PREGNANT MOTHERS FROM PLAINTIFFS’ OWN
ABUSIVE PRACTICES, THE INTERESTS OF PLAINTIFFS ARE IN
CONFLICT WITH THEIR PATIENTS, NOT IN ALIGNMENT WITH
THEM.

The interests of abortion providers in challenging this South Dakota law do
not align with the interests of women who are considering abortion. Singleton
required that “[T]he relationship between the litigant and the third party may be
such that the former is fully, or very nearly, as effective a proponent of the right as
the latter.” Singleton, 428 U.S. at 115 (emphasis added). That alignment clearly
does not exist here. The plurality assumed in Singleton that an established
traditional physician-patient relationship exists between an abortionist and her
patient, but that is usually not the case, either in South Dakota or elsewhere. Cf.
Report of the South Dakota Task Force to Study Abortion (December 2005),
available at http://www.docstoc.com/docs/2912381/REPORT-OF-THE-SOUTHDAKOTA-TASK-FORCE-TO-STUDY-ABORTION (last viewed Jan. 21, 2010)
(herein “Task Force Report”), at 9, quoting Roe v. Wade, 410 U.S. at 153 (“All
these factors the woman and her responsible physician necessarily will consider in
consultation.”). After a thoroughgoing survey of Planned Parenthood’s operation,
17

 the South Dakota Task Force to Study Abortion concluded:
We find that there is no true physician-patient relationship in this
process, and once the decision has been made, the woman is seeing the
doctor, not for counseling, consultation, or help in reaching a decision,
but rather to submit to the medical procedure that she has already
committed to, whether or not it was informed.
Task Force Report at 16-17.
The findings of the Task Force were borne out in spades by the District Court
record, which established that all four physicians who perform abortions at the
Sioux Falls Clinic of Planned Parenthood reside in Minnesota and travel to Sioux
Falls approximately one to four times a month, typically arriving during the
morning and flying back home the same day in the late afternoon or early evening.
State Defendants’ Statement of Material Facts (“State’s SSOF”), Docket No. 263,
No. 1, citing Doc. 150, Ex. 1 (McCreary Dep. at 16-17); Ex 2 (Van Oppen Dep. at
26); Ex. 3 (D’Ascoli Dep. at 10-11) (usually stays overnight, but currently does
very few abortions); Ex. 4 (Ball Dep. at 11-12). The typical patient who goes to the
Sioux Falls Planned Parenthood clinic for an abortion does not have an established
doctor-patient relationship with the physicians providing the abortions. State’s
SSOF, No. 4, citing Doc. 150, Ex. 4 (Ball Dep. at 34-35). The woman pays for the
abortion procedure and signs off on various informed consent documents first,
before receiving any one-on-one “counseling” by a “patient educator” or a
18

 physician. State’s SSOF, No. 6, citing Doc 150, Ex. 8 (Andrea Dep. at 39, 47-51);
Ex. 5 (Gues Dep. at 31-34); Ex. 7 (Lobby Dep. at 82-89). Only then does the
patient first meet the abortionist, immediately before the abortion, at which time the
doctor spends only about 2-5 minutes with the patient prior to performing the
procedure. The doctor typically asks the patient if she has any questions, and if she
does not, the abortion is done. State’s SSOF, No. 10, citing Doc. 150, Ex. 1
(McCreary Dep. at 233-234); Ex. 4 (Ball Dep. at 46-47); Ex. 9 (Nelson Dep. at 6465). The typical patient at the clinic spends a very short time in “recovery” after the
abortion during which the focus is on medical complications. Emotional or
psychological consequences of the abortion are not discussed with the woman as a
matter of routine, despite the fact that many are sad or crying. State’s SSOF, No.
13, citing Doc. 150, Ex. 1 (McCreary Dep. at 79); Ex. 4 (Ball Dep. at 61-62); Ex. 2
(Van Oppen Dep. at 52-75). With the exception of the small percentage of abortion
patients at the Planned Parenthood Clinic who undergo a medical abortion and
require a follow-up visit, most of the abortion patients do not see the doctor who
performed the abortion again after the day of the abortion. State’s SSOF, No. 14,
citing Doc. 150, Ex. 3 (D’Ascoli Dep. at 36-38); Ex. 1 (McCreary Dep. at 206-207);
Ex. 2 (Van Oppen Dep. at 77). Accord South Dakota Task Force Report, at 18, Dr.
Ball testimony (“we have a verbal agreement with an Ob/Gyn group in Sioux Falls
19

 who will help us with any complications that occur”). Therefore, if any woman has
complications, local doctors who are unfamiliar with the patient’s history and were
in no way involved in the abortion procedure must see her. Planned Parenthood’s
physicians have no relationship, “close” or otherwise, with their patients, and they
therefore lack standing to assert their legal interests.
Even assuming for the sake of argument that some sort of “relationship”
exists between abortionists and their patients, “the courts should not adjudicate such
[constitutional] rights unnecessarily, and it may be that in fact the holders of those
rights… do not wish to assert them.” Singleton, at 113-14. “Relationship” is not a
legal shibboleth, as the Supreme Court’s decision denying jus tertii standing to the
natural father of a putative third-party minor plaintiff in Elk Grove Unified School
Dist. v. Newdow, 542 U.S. 1 (2004) aptly shows. Newdow was a father who
brought a constitutional challenge to the recital of the Pledge of Allegiance in his
daughter’s public school, citing his “unrestricted right to inculcate in his daughter –
free from governmental interference – the atheistic beliefs he finds persuasive.” Id.
at 15. The Supreme Court demurred, holding that Newdow lacked standing
because “the interests of this parent and this child are not parallel and, indeed, are
potentially in conflict.” Id., distinguishing Singleton, 428 U.S. at 113-18.
Like the dysfunctional familial relationship between father and daughter in
20

 Newdow, the interests of abortion providers are in diametric conflict, not alignment
with, the interests of pregnant women who are considering abortion in at least two
important ways. First, the abortion providers have a financial incentive or stake in
the provision of abortion that creates a conflict of interest with the interests of
women considering abortion. Planned Parenthood’s abortionists are mostly paid on
a contract basis per abortion (State’s SSOF, No. 2, citing Doc. 150, Ex. 1
(McCreary Dep. at 9-10, 19)); Ex. 2 (Van Oppen Dep. at 94); thus, they are paid
only when women receive an abortion. In Planned Parenthood’s clinic, the woman
ordinarily pays for the abortion procedure and signs off on various informed
consent documents prior to receiving any one-on-one “counseling” by a “patient
educator” or a physician. State’s SSOF, No. 6, citing Doc 150, Ex. 8 (Andrea Dep.
at 39, 47-51); Ex. 5 (Gues Dep. at 31-34); Ex. 7 (Lobby Dep. at 82-89). The
information that the statute requires women to receive may cause some of them to
forego their planned abortions. If that occurs, the abortion providers would receive
less income than they would if they were free from the requirements of the law.
Furthermore, SDCL § 34-23A-10.1, SDCL § 34-23A-22 provides a civil cause of
action for the mother and her parents against an abortionist under certain
circumstances. These pecuniary conflicts of interest strongly suggest that women
should represent their own interests in court, and not have them represented by
21

 those who have a financial incentive in providing them abortions.
Second, the interests of women considering abortion are not in alignment
with the abortion providers in the context of this statute because Planned
Parenthood’s practice of misleading its patients and withholding critical information
from them is the very reason that South Dakota enacted the statute to protect its
patients. Plaintiffs-Appellees assert an interest on the part of their patients not to be
given full information regarding the existence of the second patient within them and
the fact that the abortion will affect dramatically the constitutional rights of the
mother and her child.
Parents have a fundamental Fourteenth Amendment liberty interest in raising
their children. See, e.g., Meyer v. Nebraska, 262 U.S. 390, 399 (1923), Pierce v.
Society of Sisters, 268 U.S. 510 534-35 (1925) and Troxel v. Granville, 530 U.S. 57,
66 (2000). Abortion, therefore, is not merely a medical procedure that a woman
undergoes, but more fundamentally it is a procedure that destroys the woman’s
legal right in the parent-child relationship that the Constitution and State laws
protect. The State of South Dakota has reasonably concluded that a woman should
be fully informed that by having an abortion, she is terminating the life of a second
patient and abandoning legally protected rights to her relationship with that patient.
Hearing on House Bills 1166 and 1233 Before the House State Affairs Comm.
22

 (S.D. Feb. 9, 2005); Hearing Re: House Bills 1166, 1233, 1249 Before the Senate
State Affairs Comm. (S.D. Feb. 23, 2005). Both the Task Force and the legislature
relied on unrefuted testimony that a physician who has a pregnant woman as a
patient has two separate patients and has a duty to both the mother and the child.
See Intervenors’ Statement of Material Facts, Docket. No. 296, No. 76, citing
Docket No. 185; 185 A-D, Declaration of Dr. T. Murphy Goodwin; Docket No.
184, First Declaration of Harold Cassidy, American College of Obstetrics and
Gynecologists, Ethics in Obstetrics and Gynecology 34 (2d ed. 2004) (“The
maternal-fetal relationship is unique in medicine…. both the fetus and the woman
are regarded as patients of the obstetrician”). The physician has a duty to disclose
to the pregnant mother the adverse consequences of a procedure upon the mother’s
unborn child. Id., No. 77, citing Docket No. 185; 185A – 185D, Goodwin Decl.
The state law attempts to make sure those disclosures are communicated to women
considering abortion so that they may make fully informed decisions. PlaintiffsAppellees brought this suit seeking to continue to withhold information the State of
South Dakota deemed necessary for full informed consent. There interests are
opposed not, not in alignment with, those of their patients.
Likewise, it is the women, not Planned Parenthood and its physicians, who
would suffer the health consequences that can occur from the withholding of the
23

 medical disclosures required by State law. Women have a right to make the final
decision about whether to undergo a medical procedure or not. The South Dakota
statute in question supplies information to the women contemplating abortion
information relevant to their decision-making. It is not relevant to the question of
standing whether the abortion providers dispute the relevance or accuracy of the
disclosures required by state law. Their interests do not align with those of women
considering abortion because Planned Parenthood and its contract physicians desire
to perpetuate their practice of providing less than complete information to women
considering abortion. Close to 2,000 women who have had abortions provided
statements to the Task Force detailing their experiences, trauma, and the impact
abortion has had on their lives. Task Force Report at 7. In virtually every case
these women testified that they were told that what was being evacuated was
“nothing but tissue,” and their depression was at least in part triggered by the
subsequent realization that by having an abortion they were mothers who had killed
their own child. See Intervenors’ Statement of Material Facts, no. 4, citing Docket
No. 184, First Cassidy Decl. (Ex. 1, p.4, LT at 9-15 to 9-22 (Kling); Ex. 1, p.5, LT
at 12-7 to 12-21 (Julian); Ex. 1, p.7, LT at 22-10 to 22-13 (Frick); Ex. 1, p.19, LT at
34-17 to 34-22 (Avila)). These women all felt they had been “lied to” by the
providers. See id., no. 5, citing Docket No. 184, First Cassidy Decl. (Ex. 1, p.5, LT
24

 at 11-3 (Kling); Ex. 1, p.6, LT at 15-8 to 10 (Julian); ex. 1, p.8, LT at 22-22-25
(Frick); ex. 1, p.19, LT at 33-16 (Soske); Ex. 1, p.20, LT at 35-15 (Avila)).
Planned Parenthood believes that even simple information about fetal
development simple information about fetal development is irrelevant to the
woman’s decision of whether or not to have an abortion. Id., no. 22, citing Pacer
Document 184, First Cassidy Declaration (Exhibit 24), deposition of Kate Looby,
South Dakota State Director of Planned Parenthood, P.63, L.24 to P.64, L.2.
(“Frankly, I would say that fetal development is not something that is part of the
decision-making process for a person with an unplanned pregnancy”). See also
Exhibit 24, Tr. of Looby Dec., P.157, L.9 to P.158, L.8; id., Ex. 25, Tr. of Depo of
Dr. Carol Ball, P.176, L.20 to L.25. (Dr. Ball agrees that fetal development is not
relevant to the decision of a pregnant woman contemplating submitting to an
abortion); Exhibit 26, Tr. of Depo. of Dr. Dirk Van Oppen, p.133, L.17 to P.134
L.13. (Dr. Van Oppen doesn’t think information about fetal development is relevant
to women’s decisions of whether to have an abortion). The Client Information for
Informed Consent provided to abortion patients at Planned Parenthood’s clinic
describes the entity being aborted as “contents of the uterus,” “pregnancy tissue” or
“removing the pregnancy.” State’s SSOF, No. 7, citing Doc. 150, Ex. 4 (Ball Dep.
Ex. 5). During this initial consult process, the doctor describes the procedure as
25

 “removing the pregnancy,” “pregnancy tissue” or the “contents of the uterus” and
purposely chooses terms which do not invoke negative emotions or visual images in
the patient’s mind. State’s SSOF, No. 11, citing Doc. 150, Ex. 3. Women at the
clinic may not ask for information regarding fetal development or the psychological
effects of the abortion because they are in a very difficult emotional state. State’s
SSOF, No. 17, citing Doc. 151, Ex. 11 (Avila Dep. at 20); Ex. 12 (Jane Doe Dep. at
122-124, 126, 130-132, 151-152, 238-239); Ex. 13 (Nelson Dep. at 50-52); Ex 14
(Soske Dep. at 39-43, 50-55, 65-66, 72-73, 80-86).
Abortion providers cannot represent the constitutional claims of women
when the relief requested is to withhold information from women considering the
procedure that may result in physical and psychological harm. The interests of
Plaintiffs-Appellees do not align with the interests of women considering abortion,
and thus they lack standing to represent the interests of those women in this case.
B.

PLAINTIFFS-APPELLEES LACK STANDING TO ASSERT THE
RIGHTS OF WOMEN CONSIDERING ABORTION BECAUSE
NOTHING HINDERS THEM FROM ASSERTING THEIR OWN
INTERESTS.

Third party standing is availble only when third parties face a hindrance to
litigating their rights. It must be “difficult if not impossible for persons whose
rights are asserted to present their grievance before any court.” Barrows, 346 U.S.
at 257.
26

 Here, nothing bars women considering abortion in South Dakota from
asserting their own claims in court. There is no unique or special bar to women
bringing their claims themselves to court. In fact, women have pseudonymously
challenged laws restricting abortion in the past in such major cases as Roe v. Wade,
410 U.S. 113 (1973) and Doe v. Bolton, 410 U.S. 179 (1973), as well as a myriad
others in the Circuits. There is no reason that Amici are aware of that would hinder
women considering abortion from challenging this South Dakota law, and, in fact,
state law requires that their identity be protected. See SDCL § 34-23A-23
(anonymity of female plaintiff in abortion actions; “In the absence of written
consent of the female upon whom an abortion has been performed or attempted,
anyone, other than a public official, who brings an action pursuant to this chapter
shall do so under a pseudonym.”). Women are capable of defending their own
rights in court. Because nothing hinders the women from asserting their own
claims in court, the abortion providers lack standing to raise the women’s claims as
third parties. Kowalski v. Tesmer, 543 U.S. at 129-30.
III.

PLAINTIFFS-APPELLEES LACK ARTICLE III STANDING TO
CHALLENGE THE MEDICAL EMERGENCY EXCEPTION TO THE
STATUTE WHERE THE RECORD REVEALS THAT THEY DO NOT
PERFORM EMERGENCY ABORTIONS.
Planned Parenthood of Sioux Falls does not offer emergency services. State’s

SSOF, No. 25, citing Doc. 151, Ex. 15 at ¶¶10-11 (Complaint at ¶ 10). Medical
27

 emergencies are not confronted in the abortion clinic situation at the Planned
Parenthood clinic in Sioux Falls because the types of abortions that are performed at
the clinic are not the types which involve emergencies. State’s SSOF, No. 30,
citing Doc. 150, Ex. 2 (Van Oppen Dep. at 216). Planned Parenthood’s protocols
require that high-risk pregnancies be referred to others. State’s SSOF, No. 26, citing
Doc. 150, Ex. 4 (Ball Dep., Ex. 11 at 1-2); Doc. 151, Ex. 16 ¶ 2 (Ball Reb. Rpt. In
02-4009); Ex 17 (Ball Ex. Rpt. At ¶ 8-9 in 02-4009). Planned Parenthood screens
women for factors or medical history that would place them at greater risk for
complications and if the physician believes it is not appropriate to do the procedure
in an outpatient setting, the patient is referred to a hospital. State’s SSOF, No. 27,
citing Doc. 151, Ex. 16 ¶ 2 (Balls Reb. Rpt. in 02-4009).
Because there is no reasonable possibility that Planned Parenthood’s
physicians will face a circumstance involving “emergency abortion,” their claim of
standing to challenge the provision governing those situations should be denied.
CONCLUSION
Amici respectfully urge this Court to dismiss the appeal as to PlaintiffAppellee Planned Parenthood and Plaintiffs-Appellees’ substantive due process
challenge to the “emergency” exception, and to hold they lack standing to challenge
the relationship and medical disclosures on behalf of Planned Parenthood’s patients.
28

 Respectfully submitted this 22nd day of January, 2010466777)
ALLIANCE DEFENSE FUND
801 St., N.W., Suite 509
Washington, DC 20001
Tel.: 202.393.8690

Fax: 202.347.3622
saden@telladf.org

Counsel for Amici Curiae

CERTIFICATE OF COMPLIANCE WITH RULE 

Certi?cate of Compliance With Type-Volume Limitation, Typeface
Requirements, and Type Style Requirements:

1. This brief complies with the type-volume limitation of Fed. R. App. P.
because it contains 6,326 words, excluding the parts of the brief
exempted by Fed. R. App. P. 

2. This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has
been prepared in a proportionally spaced typeface using Microsoft Word 2007 in

Times New Roman 14 point.

Date: January 22, 2010 

Steven H.

(DC Bar No. 466777)
ALLIANCE DEFENSE FUND
801 St., N.W., Suite 509
Washington, DC 20001
Tel.: 202.393.8690

Fax: 202.347.3622
saden@telladf.org

 

30

CERTIFICATION THAT CD-ROM COPY IS VIRUS FREE

The ?le copied to the CD-ROM has been scanned for viruses and is virus

Date: January 22, 2010 By:

31

SteNLeIn H. A9en
(DC . 466777)

ALLIANCE DEFENSE FUND
801 St., N.W., Suite 509
Washington, DC 20001
Tel.: 202.393.8690

Fax: 202.347.3622
saden@telladf.org

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that two true and correct copies of the foregoing
document and a digital copy on were sent by First Class Mail on the date
below to:

Timothy E. Branson

Michael R. 
DORSEY WHITNEY

50 S. Sixth Street, Suite 1500
Minneapolis, MN 55402

Helene Toby Krasnoff

Mimi Liu

PLANNED PARENTHOOD FEDERATION OF AMERICA
1110 Vermont Avenue NW.

Suite 300

Washington, DC 20005

Patricia J. DeVaney

John P. Guhin

Bobbi Rank

ATTORNEY 3 OFFICE
1302 E. Highway 14, Suite 1
Pierre, SD 57501

Harold J. Cassidy

Robert W. Ruggieri

Thomas J. Viggiano, 

HAROLD J. CASSIDY ASSOCIATES
750 Broad Street

Shrewsbury, NJ 07702

32

Jeremiah D. Murphy
MURPHY GOLDAMMER
101 N. Phillips Avenue
PO. Box 1728

Sioux Falls, SD 57101-1728

Date: January 22, 2010

ByAtto Amicz' Curiae