412 F.Supp.3d 1134
D.N.D.2019Background
- Plaintiffs (American Medical Association, a North Dakota clinic, and an OB/GYN) challenged North Dakota H.B. 1336, which requires physicians to tell every abortion patient at least 24 hours before the procedure that “it may be possible to reverse the effects of an abortion‑inducing drug” and directs the state to publish materials about reversal and referrals.
- The Clinic provides both medication (mifepristone followed by misoprostol) and surgical abortions; the statute applies to all abortion patients, including those receiving surgical abortions for whom the “reversal” claim is irrelevant.
- Plaintiffs submitted medical testimony (including ACOG statements) that progesterone “reversal” protocols are experimental, lack rigorous evidence, and may pose risks; the State’s experts described limited anecdotal experience and conceded lack of rigorous studies.
- Plaintiffs moved for a preliminary injunction to enjoin enforcement of the statute’s reversal‑related disclosure; the State stipulated not to enforce the law pending the court’s ruling.
- Applying the Dataphase factors, the district court found Plaintiffs likely to succeed on their compelled‑speech First Amendment claim, that irreparable harm would occur, and that the balance of harms and public interest favored an injunction; the court enjoined enforcement of H.B. 1336’s reversal disclosure and waived the bond.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether H.B. 1336 unlawfully compels physicians to speak in violation of the First Amendment | H.B. 1336 forces physicians to convey state ideology and unproven medical claims, violating their right not to speak | The statute properly regulates professional conduct and may require disclosures to further state interests (e.g., fetal life) | Court: Likely unconstitutional compelled speech; PI granted on this claim |
| Proper level of constitutional scrutiny (content‑based / professional speech) | Law is content‑based; professional‑conduct arguments do not save it; at least intermediate scrutiny applies | Law regulates professional conduct incidental to speech; Rounds/rational‑basis review should apply | Court assumed intermediate scrutiny and found the law not sufficiently tailored; also held it likely fails even under Rounds |
| Truthfulness, misleading nature, and relevance of mandated disclosure | The “may be possible” reversal message is unsupported by credible evidence, misleading, and irrelevant to many patients (e.g., surgical cases) | There is an ongoing medical debate and some clinicians report anecdotal success; the statute’s wording is cautious (“may be possible”) | Court: Disclosure is misleading, unsupported, and often irrelevant; cannot be compelled |
| Whether preliminary‑injunction factors favor relief | Loss of First Amendment rights is irreparable; existing informed‑consent laws remain; public interest favors protecting speech | State interest in protecting fetal life; enforcement advances public health goals | Court: Dataphase factors weigh for Plaintiffs (irreparable harm, balance of harms, public interest); PI issued and bond waived |
Key Cases Cited
- Nat’l Inst. of Family & Life Advocates v. Becerra, 138 S.Ct. 2361 (2018) (explains compelled professional speech limits and scrutiny for content‑based regulations)
- Wooley v. Maynard, 430 U.S. 705 (1977) (recognizes right to refrain from speaking state messages)
- Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992) (upheld some informed‑consent disclosures but acknowledges limits on state intrusion into medical speech)
- Reed v. Town of Gilbert, 135 S.Ct. 2218 (2015) (defines content‑based regulation and its presumption of unconstitutionality)
- Dataphase Sys., Inc. v. C L Systems, Inc., 640 F.2d 109 (8th Cir. 1981) (sets the four‑factor test for preliminary injunctions)
- Planned Parenthood Minnesota, North Dakota, South Dakota v. Rounds, 530 F.3d 724 (8th Cir. 2008) (articulates Rounds test for compelled disclosures in abortion context)
- Elrod v. Burns, 427 U.S. 347 (1976) (establishes that loss of First Amendment freedoms is irreparable harm)