*1 662 concedes, occupant
he knew the vehicle’s recent was “a defendant preju cannot show implicated in a stabbing incident and be dice when joined evidence of the offense illegal possess cause it is brass knuckles would be properly admissible in a separate on the Red Lake Reservation. these trial for the other crime.” United States circumstances, the properly- district court Erickson, 1049, (8th v. 610 F.3d 1055 Cir. applied plain-view exception to the 2010). Here, separate in a trial of the requirement. warrant See United States offenses, assault virtually it is certain that Hatten, (8th 257, Cir.1995), v. 68 F.3d 261 relating evidence to Timbear’s murder ear denied, 1150, 1026, cert. 516 U.S. 116 S.Ct. evening lier that would have been admissi (1996). 134 L.Ed.2d Given the violent ble, either as evidence “that completes the night in question, Kingbird events crime,” story of the United v. States Or probable then had cause to enter (8th ozco-Rodriguez, 940, 220 F.3d parked highly vehicle, with —but mobile— Cir.2000), or as prior evidence of a bad act warrant, out a and to seize the weapons he of a similar nature admissible under Rule observed inside it. See v. United States 404(b) of Evidence, the Federal Rules of Martin, (8th 204, 806 F.2d 207-08 Cir. Erickson, 1055-56, 610 F.3d at Taken 1986). Alive, 903, 513 F.3d at and United States Steele, (8th 693, Cir.2008). v. 550 F.3d III. The Severance Issue further jury We note that acquitted Lastly, argues Brown the dis Brown 3, of the assault charged in Count trict court abused its discretion when it strong evidence that severe prejudice did 1, denied her motion to sever Count not in fact occur. See United States v. charge, murder from Counts the Lawson, (8th Cir.), 173 F.3d cert. charges. assault She contends that denied, 528 U.S. charges assault completely “arise from a (1999). L.Ed.2d 215 The district court did separate one, incident from count involving not abuse its in denying discretion different actions and different victims.” A motion to sever. motion to sever counts for trial is commit judgment of the district court is ted to the district court’s discretion. We affirmed. reverse its “only denial when the defen
dant shows an abuse of discretion that
resulted in severe prejudice.” United Rock, (8th
States v. 282 F.3d
Cir.2002) omitted). (quotation “Severe
prejudice occurs when a defendant is de
prived appreciable of an chance for an
acquittal.” Alive, United States v. Taken (8th Cir.2008) 513 F.3d (quotation PLANNED PARENTHOOD MINNESO- omitted). satisfy Brown fails to rigor TA, Dakota, Dakota; North South ous standard. Ball, M.D., Appellees/Cross Carol E. Brown argues that the refusal Appellants, to sever Count 1 prejudice caused severe evidence of the murder— n hearing because ROUNDS, argued Governor; Marty which she Mike justifiable was self-de J. Jackley, Attorney may General, jury caused the to be in their of- fense— capacities, lieve she was “a person goes Appellants/Cross bad ficial Ap- stabbing people.” However, around pellees, as she *2 Preg- Center; Black Hills Crisis
Alpha doing as Care
nancy business Center Bidder, M.D.; Elea-
Net; A. Dr. Glenn L.S.W.A., Appel- M.A., Larsen D.
nor Appellees.
lants/Cross Associa- Medical Dental &
Christian
tions; of Pro- American Association Gynecologists; &
Life Obstetricians Association; Physi- Medical
Catholic Life; Association National
cians Family Nurses; Research
of Pro-Life
Council; Net; Inter- Care Heartbeat In-
national, Incorporated; National Advocates, Family Life
stitute
Incorporated, Amici Curiae. 09-3231, 09-3233, 09-3362.
Nos. Appeals, Court of
United States
Eighth Circuit. 11, 2011.
Submitted: Jan. Sept. 2,
Filed: *3 AAG, Gugin,
John P. argued, Patricia J. AAG, DeVaney, brief, Pierre, SD, members individual staff intervened. Appellees, Mike Appellants/Cross for sitting our en banc reversed court Governor, Marty Jackley, J. granted to Planned preliminary injunction Center, General, et al. Alpha Attorney re- in the district court and Parenthood Shrewsbury, argued, Cassidy, Harold J. consideration.2 On re- manded for further Viggi- Thomas J. NJ, Ruggieri, Robert W. granted summary mand court the district NJ, ano, Cassidy, Shrewsbury, Derek M. judgment statutory provisions on four Falls, SD, on Murphy, D. Sioux Jeremiah Parenthood, challenged up- brief, Appellees, Appellants/Cross holding striking others as some down Center, et al. Alpha unconstitutional under the First and Four- *4 Branson, Timothy argued, E. Minne- Parent- teenth Amendments. Planned MN, Drysdale, Michael Minne- apolis, hood, Dakota, and South the intervenors Bell, MN, Denver, CO, D. Steven apolis, careful of the appeal. After consideration NY, Liu, Evans, York, Mimi New Roger statutory provisions and the ar- individual brief, DC, for Washington, Appel- on the interested af- guments parties, of the we Planned Parent- Appellants, in part part. firm and reverse lees/Cross hood, al. et I. brief, Aden, Washing- H. on Steven In 2005 South Dakota enacted House Curiae, ton, DC, Family Amici Re- (the Act) subject Bill 1166 Council, Net, Heartbeat In- Care search Act Da- this action. The amended South Inc., Institute of and National ternational Code, Safety kota’s Health and ex- Public Advocates, Inc. Life Family and requirements for informed panding the Act, § 7 consent to abortion. Under of the MELLOY, MURPHY,
Before contemplating each is to woman GRUENDER, Judges. Circuit given twenty oral advisories3 four MURPHY, Judge. Circuit procedure by of the hours advance Minnesota, perform doctor the abortion scheduled Planned Parenthood by designee. The the doctor’s doctor Dakota, Dakota its medi- North South give must written advisories at least other (collectively Dr. E. Ball cal director Carol the procedure. two hours before Parenthood) brought equita- Mike Rounds against action Governor ble by required The advisories written Attorney 7(1) Dakota General1 § South patient to inform the are Dakota) in their official (collectively South (b) the abortion will terminate That seeking enjoin whole, enforcement of capacities liv- separate, unique, life of to the being being enacted in 2005 South human ing [the revisions human advisory]; consent abor- Dakota law on informed (c) Black Alpha existing tion. Center and Hills Crisis patient] That has an [the Center, pregnancy cen- human Pregnancy relationship crisis with that unborn Dakota, en- being relationship and that and their ters located South judge concurring judgment; four dis- Marty Attorney Jackley, J. the current Gen- 1. Dakota, senting). the successor to Lar- eral of South when ry Long that office this case who held was initiated. parties Although 3. the district court and the in connec- have used the word "disclosure'' Act, Minn., N.D., by mandated with information Planned Parenthood S.D. Rounds, (8th Cir.2008) "advisory” precise- we the term more 735-36 believe 530 F.3d (six (en banc) ly process required the law. majority; judges in the one describes joys under the United Before the Act was scheduled to take protection and under the States Constitution effect Planned Parenthood Dakota; laws South challenge its facial brought to the constitu- (d) having tionality her ex- That statute under the First and relationship existing
isting
and her
It
Fourteenth Amendments.
moved for a
rights
regards to
constitutional
injunction
preliminary
enjoining its en-
relationship
will be terminated
forcement. The district court held in
adviso-
[collectively
relationship
Minnesota,
North
ries].
Dakota,
South Dakota v.
34-2SA10.1(l)(b)-(d).
(D.S.D.2005),
F.Supp.2d
S.D.C.L.
ad-
the hu-
visory
descrip-
being
must further contain
“[a]
man
violated doctors’ First
tion of
all known medical risks
rights
its
Amendment
face and that
(the
procedure”
advisory).
risk
Id.
34-
any portion
invalidation of
of the Act re-
23A-10.1(l)(e).
description
That
must in-
injunctive
quired
relief. While a divided
clude
risk of suicide ideation
“[increased
affirmed,
panel
this court
The en court Planned banc 10.1(l)(d). challenge Parenthood’s facial the human Planned Parenthood has facial- being advisory under the same standard ly challenged relationship advisories we Planned apply today. Parenthood has under the Fourteenth and First Amend- being not demonstrated that the human unduly burdening ments as a woman’s fun- present would undue burden right damental to have an abortion and as “in a large fraction the cases in which physicians’ compelling speech beyond a [it] is relevant.” 505 U.S. at regulation practice reasonable of the reaching 2791. our conclusion medicine. The court district found the imply court did not a matter of as relationship advisories unconstitutional construction, 7(l)(b) statutory forces identifying without a specific constitutional doctors to its exact Having use words. basis for decision. already upheld validity, the statute’s facial go we decline to further since disagree appeal, parties On as to the brought Parenthood applied an as meaning relationship advisories as challenge judicia §to 7. It is neither the constitutionality. well their South Da- ry’s “obligation nor within traditional [its] argument kota at represented oral that the institutional questions role resolve relationship advisories “can be taken to constitutionality with respect po to each mean that protects Constitution tential that might develop.” situation from being woman to have an forced abor- Gonzales, U.S. responded tion.”7 The advisories to the Only an “as applied” challenge would be an legislature’s South Dakota concern that *7 appropriate vehicle to consider the case of “people getting coercion, ... feel abortions a doctor other using language giving they pressure, they feel feel alone.” Id. advisory. this When asked at oral argument whether upheld Because Rounds the human be- a having “protected relationship” means ing advisory against challenge, a facial that a woman “can’t be to forced have an certainly district court doing did not err in abortion,” answered, counsel for state the same. It should therefore affirmed. “Yes, absolutely.” say He went to the relationship B. “can be advisories taken to protects] mean that the ... Constitution a also chal being woman from to forced have an abor- lenges requirement 7 that before tion ... and that the laws of the state of performing an abortion doctors must tell a protect South Dakota also woman’s rela- each pregnant woman “that has an [she] tionship. really you That’s all say. have to existing relationship with that hu unborn man That’s it.” The being enjoys and that the intervenors characterize relationship protection under the United relationship States Consti- a “relationship as fact.” recording argument 7. A 2011/1/093231.mp3. is available at http://8cc-www.ca8.uscourts.gov/OAaudio/
669
speech,
may
compel
which a state
not
urges that the rela-
cal
Parenthood
Planned
meaning
regulated
from heavily
have no stable
even
entities.
tionship advisories
compel
705, 714,
they unconstitutionally
Maynard, 430
97
Wooley
and that
v.
U.S.
(1977);
there
speech by
1428,
doctors since
ideological
also
generally recognized,
The district court
erred in
tions are
proven,
therefore
hold-
or
ing them unconstitutional.
familiar risks of abortion.
“risk,”
The statute also does not define
C.
but medical
generally
dictionaries
on
agree
portion
challenged
Another
that
possible meanings.
term’s several
requires
Planned
Parenthood
doc
“Absolute risk” is the
“[pjrobability that
tors describe “all known medical risks” of
specified event
occur in
specified
will
“[ijncreased
including
risk of sui
population.”8 Stedman’s Medical Dictio-
(collectively
cide ideation and suicide”
sui
(28th
2006).
nary 1701
ed.
“Attributable
cide).
(1)(e)(ii).
§ 34-23A10.1
S.D.C.L.
risk” means
rate of a
...
in
“the
disease
summary
The district
granted
judge
court
exposed individuals that can be attributed
ment
favor in
Parenthood’s
re
exposure.”
to the
In respect
Id.
to
it,
to
spect
holding
provision
this
advisory,
statute’s suicide
risk
attributable
unduly
right
would
burden woman’s
would refer to the rate of suicide attribut-
voluntary abortion and would violate doc
having
able to a woman’s
had an abortion.
right
First
tors’
Amendment
be free
“Relative risk” refers to “the ratio of the
compelled
from
speech. South Dakota
risk of
among
disease
those
to a
exposed
appeal,
arguing
intervenors
risk factor to
among
the risk
not
those
presents
advisory
the suicide
no undue
exposed.” Id. The other definitions are of
only
burden and
a truthful and
here,
unlikely
they
relevance
refer
nonmisleading
question
statement. The
family related
or to
risk
issues of research
appeal
advisory
is whether this
is “un
design. See Dorland’s Illustrated Medical
truthful,
misleading or
relevant to the
(31st
2007)
Dictionary
(defining
ed.
patient’s decision to have an abortion.”
risk).
competing,
genetic
empiric,
Of
Rounds,
Dictionary 2007). ed. *9 percent. Thus, the inclusive statement that “in- Moreover, creased risk of suicide suicide in the context of a ideation this statute are known medical risks of abortion” court legislature must cannot assume that the be understood as that opining any those had competing condi- one of several defini- expert 8. The time-period (e.g., intervenors’ likewise defined ab- disease over a a life- 10% suicide)." solute developing risk as "the of chance a time risk of
671 (risk an to “predisposes mind. The factor individual clearly risk of medical tions disease”); in the same sub- advisory appears the a Dorland’s development suicide §of doctors 7 “may may section a (denoting 685 risk factor or statistically significant [all] ... “deseri[be] causality); imply not” but see Stedman’s woman pregnant the to which risk factors (a necessarily 697 risk factor is “not caus- S.D.C.L. subjected” be abortion. would risk). ally to” an increased Noth- related 34-23A-10.1(l)(e). statute does not The ing advisory prevent the un- the would reviewing ex- “risk factor.” After define proven inference that the “increased risk” however, court testimony, the district pert 7 is increased mentioned abortion. a “a ‘risk factor’ refers to concluded that (defining at See Stedman’s 1701 “attribut- patient that a condition predisposing risk”). able a procedure” rather than before gen- The does record not demonstrate a resulting procedure. from erally recognized causal connection be- added). (emphasis F.Supp.2d at 981 fact, tween abortion suicide. in a “risk factor” manner statute thus used vigorous reveals debate over whether meaning, its medical inconsistent with apparent statistical correlation results leaving guess “to as to mean- doctors rather from common cofactors than a legislature give intended to ing that one causes the other. In the showing The district court therefore phrase.” Id. enjoined peer of the “risk factor” evaluating enforcement course of relevant re- Dakota ruling neither South provision, literature, Psycholog- viewed the American attacked. The the intervenors have nor ical concluded there is no Association legislative concluded that the district court risk of mental prob- evidence that health “may fully not understood drafters among lems women abort unwanted who used in the meaning phrase as than that of pregnancies greater not profession.” ap- It does Id. miscarry preg- women who or deliver such from that the word “risk” pear the record al., Major et nancies. Brenda American precision the technical was used with Association, Psychological Report attribute to it. the dissent would APA Task Force on Mental Health and incorporate if Even were entitled to we (2008). Abortion term “relative risk” into 7 as written could mislead wom- Section advisory, than to “confine [our- rather into pregnancies en who have unwanted language in the statute selves] used” in- believing choosing would interpretation rules South Dakota (92% at crease risk of suicide. Id. their Langdeau, require, Langdeau see pregnan- of abortions are unintended (S.D.2008), advisory N.W.2d cies); Casey, 505 see U.S. truthful, made nonmislead- would be (considering “large fraction ing, incorpo- “Relative risk” relevant. is rele- [an cases in which abortion statute] factor,” of a “risk concept rates see vant”). Psychological The American Asso- 1701; which Borland’s Stedman’s report fallacy ciation illustrates causation of an may may not denote proposed rewording of the suicide dissent’s Mosby’s Dictionary increased See risk. “rela- would assert Medicine, Nursing & Health Profession- tive suicide and suicide ideation is risk of 2009) (a (8th ed. risk factor als higher preg- women abort their who particularly ... person “causes other rele- compared women event”) nancies ... an unwanted susceptible to point The critical groups.” vant added); Cyclopedic (emphasis Taber’s *10 2009) (21st on most relevant oth- lacking data are Dictionary 2046 ed. Medical carry- group being er women who as a cause has been ruled out [of suicide] —that pregnancies certainty,” unwanted to term. Without with it overlooks the fact that about possible that data it is not to talk risks” “medical is modified the statute on risk. effect of abortion suicide by Although the word “known.” the stat requires ute of all doctors warn “known granting summary judgment Before abortion, risks” the dissent issue, this dis- read the would word “known” out of the trict a report court considered South 34-23A-10.1(l)(e). statute. S.D.C.L. expert Shadigian, Dakota Dr. Elizabeth M. Legislatures have pass “wide discretion to reports by who American referenced legislation areas there where is medical College Gynecologists, of Obstetricians and uncertainty,” Gonzales, and scientific leading professional “the association U.S. at but the suicide physicians specialize health who advisory certainty asserts on the issue of care of at F.Supp.2d women.” 983. medical and scientific knowledge where According Shadigian, special- to Dr. advisory none exists. The thus “very like group experts rejected any ized ly require[s] physicians ... to disclose in connection between suicide and abor- Post, formation that is Robert false.” In Psychological tion as did American As- formed, Consent to Abortion: A sociation. relevant to First position Also its Analysis Compelled Amendment generally Physi suicide is not as a recognized Speech, danger cian Ill. L. Rev. of abortion is the for the U. labeling (2007). inducing abortion The drug mifepristone. Al- district court did not err in though concluding the FDA prescription advisory’s suicide drug “clinically labels of all signifi- warning to warn compels “known” risks untruth cant poten- adverse speech by untruthful, reactions” and “other ful doctors. An mis hazards,” tial ... 201.57(6)(i), 21 C.F.R. leading, advisory or irrelevant violates approved mifepristone a label for patient’s rights both a due process to vol did not suicide or mention suicide ideation. untary abortion a doctor’s First rights. Casey, Amendment U.S. South Dakota cite intervenors 2791; Rounds, 530 F.3d at peer articles, numerous portion reviewed of which concluded there rela- causal tionship between suicide abortion. required advisory The sig- suicide would Psychological American Association nificantly constrain doctors’ exercise of report found several these studies meth- their professional judgment. South Dako- odologically flawed they because failed to ta common already requires law doctors to distinguish women with pregnan- wanted patients inform of all the known material cies from women with pregnan- unwanted significant risks procedure. of a medical cies in evaluating the mental health effects Madison, Wheeldon v. 374 N.W.2d pregnancy various Testimo- outcomes. (S.D.1985). Thus, if a doctor considers ny by women reporting individual emotion- known material risk of problems al after abortion has also been duty there is common law pa- warn offered South Dakota and interve- statutory Unlike tients. suicide advi- nors; all of these women had abortions sory, this common rule has an excep- law either outside of South Dakota or before extremely tion for risks that are remote. passage of the state’s earlier informed con- also physician Id. It affords a the discre- sent provisions. warning to issue a which would objects
While the “nothing dissent cause severe emotional distress. Id. The suggests] record ... requirements of the suicide would *11 any procedure required in medical if a doctor were risks redundant thus be a risk law. Wheeldon v. Madi- posed by material state common believe (S.D.1985). advising son, to a and that patient 374 N.W.2d of suicide The to cause harm. unlikely it was her of above, “known” means As discussed warning compel a law rule would common proved, or familiar to generally recognized, In other cases the suicide these cases. in only gener- risks all. Since known include of over- advisory would have effect risks, familiar a doctor ally recognized or judgment riding professional doctors’ reasonably can ordinary intelligence be- a doctor compelling statement comply how with the statute. certain dangerous. immaterial or even lieves Parenthood has not shown that Planned in requirements Informed consent in advisory will cause confusion the risk context “must be calculated case, the abortion quantum let of cases alone choice, hinder free woman’s [a] inform a facial required challenge. to sustain facilitating and “informed” deci it,” “wise” err in upholding court did not district at Casey, 505 U.S. sions. advisory. risk state compelled A medical 2791. S.Ct. terms unequivocal in that contradicts
ment E. in rele leading experts associations judg- these we For reasons reverse serve that end. We fields does not vant striking court down ment of district advisory places that the suicide conclude advisories; its rul- relationship affirm path of [wom obstacle “substantial being advisory human ing upholding the abortion,” at seeking id. en] Rounds; in and rul- affirm its approved By thus due process. and violates advisory upholding general risk ings misleading and untruthful compelling advisory. striking the suicide and down advisory also violates doctors’ speech, proceed- we for further Finally, remand from right to be free Amendment First opinion. ings consistent with untruthful, mis speech that compelled 882, 112 Id. at leading, or irrelevant. GRUENDER, concurring Judge, Circuit con 2791; F.3d at We part dissenting part. court not err that the district did clude A, B, II. D of the I Parts concur summary granting Court, holding the “hu- opinion advisory. toas the suicide judgment being,” “relationship,” general man advisories, respectively, withstand “risk” D. facial constitutional Planned Parenthood’s also chal Planned Parenthood has However, I dis- challenges. respectfully advisory broadly. more lenged risk II. holding from the in Part C sent Court’s pa doctors to inform Section advisory untruthful the “suicide” associ of “all known medical risks” tients states misleading. While Court abortion, including limit but not ated with “does not demonstrate record Planned specific a few illnesses. ed to causal connection be- generally recognized argues that Parenthood suicide,” abortion and ante tween oblige vagueness may because is void upon relied even the evidence unproven warn of obscure or doctors acknowledges significant, Parenthood Dakota South risks of abortion. abor- known statistical correlation between meaning advisory’s responds This well-documented doctors, tion and suicide. already who be clear to should sup- is sufficient correlation significant” material or statistical “known disclose *12 674 legislature said, from what
port required the disclosure that mined the rath of-suicide, an “increased risk” as presents er than what think it the courts should term medical said, is used relevant and the court must confine itself literature. language Langdeau to the v. used.” (S.D.2008) 722, 751 727 Langdeau, N.W.2d
Among requirements, other disclosure Commc’ns, (quoting US West Inc. Pub. v. requires physician provide the statute to Comm’n, (S.D. 115, Utils. 505 N.W.2d following patient information to a seek- 1993)). ing an abortion: (e) A of all description known medical Here, language actually used statistically
risks of procedure in legislature denotes risk a medical con- significant risk factors to risks,” “statistically text: “medical signifi- pregnant subjected, in- woman would be “[ijncreased factors,” risk cant risk.” The cluding: statute, “risk” is term not defined (i) Depression psychologi- related has and it more than one reasonable defi- distress; cal nition. South Dakota law (ii) risk of ideation Increased suicide according such a term “must construed be and suicide[.] strained, accepted usage, unp- to its and a 34-23A-10.1(l). S.D.C.L. Planned Par- ractical or absurd is to result be avoided.” enthood does contend that subsection v. Spearfish Planning Peters ETJ (i), listing depression psycho- and related Comm’n, (S.D.1997). 567 N.W.2d logical distress a known of abor- said, on what legislature Based what tion, untruthful or misleading. Only must be disclosed is that suicide is a “risk” (ii), listing subsection suicide suicide applying accepted usage (collectively “suicide”), ideation is at issue. the term “risk” in the relevant medical advisory To determine if the suicide satis- field. requirements fies constitutional for abor- Court no examines fewer than four regulations tion and compelled speech, I in its quest dictionaries to find actually examine first what disclosure possible every definition of the term required, second whether that disclosure is “risk,” and it finds that at least three truthful, and third whether it is non-mis- might implicated those definitions be leading and relevant to patient’s deci- advisory, “may may some of which or to sion have an abortion. See Planned not denote causation.” Ante Minn., N.D., Rounds, Parenthood S.D. v. view, my this approach sweeps far too (8th Cir.2008) (en 530 F.3d 734-35 broadly. Although heading of subsec- banc). (e) refers to “all known medical risks
I. procedure,” [abortion] suicide incorporates further the more regard With required, disclosure precise phrase “[increased risk.” 34- argues, and the dis- 23A10.1(l)(e)(ii). result, As a one (ii) agreed, trict court that subsection must presume that the. term “increased risk” require be construed disclosure that precise meaning has a more than the term abortion causes suicide. See Planned Par- Heeren, N.D., Maynard itself. Minn., “risk” See v. enthood S.D. (S.D.1997) (“[N]o (D.S.D.2009). F.Supp.2d N.W.2d Howev- er, language (ii), wordage no should be surplus. subsection found be 10.1(l)(e), heading of can provision meaning. section to cau- No be left without refers sation. “The of a possible, given every intent statute is deter- If effect should word.”) groups, rates of for two other every (quoting Cum wom- part Mickelson, gave who birth and women who 495 N.W.2d en miscar- mings v. Inc., al., (S.D.1993)); Ex. et see FCC v. AT & T ried. See Mika Gissler also *13 — Finland, —, 1183, 179 in Pregnancy Suicides U.S. After 1987-9í, (2011) that, in Brit. Med. (recognizing J. L.Ed.2d 132 (1996), study No. That statute, together ECF 172-3. char- construing a “two words vastly of a meaning finding higher acterized its particular a more may assume isolation”). rate for in- suicide women who received prac in than words those “an terms, duced abortions as increased risk of advisory not the at issue is tical study at suicide.” Id. 1434. Another com- every possible practice to of applicable of, alia, pared the rate inter suicide idea- medicine, likely not and does encom thus who had received women induced definitions every one of the numerous pass abortions with the rates for women who in medical dictionar of “risk” encountered birth and women who gave for had not Instead, advisory the “increased risk” ies. pregnant. Ex. M. become See David solely to risk of as it refers the suicide al., Fergusson Young et Abortion in Wom- undergo to those abortion.9 relates who Health, Subsequent and Mental en J. the medical literature I therefore turn to (2006), & Psychol. Psychiatry Child in the record to dis expert evidence study No. 172-4. That ECF characterized accepted usage the term “in cern the of higher finding its of rates of adverse men- applicable risk” in the creased tal health outcomes for women who had context, and in whether particular “a induced abortions detectable in- usage necessarily implies proof of accepted of crease in risks concurrent subse- causation. for quent problems” “young mental health medical literature peer-reviewed expos[ed] women to abortion.” Id. at 22 topic the the of suicide record added). (emphasis “in- consistently the term abortion uses Finally, following the definition of risk in relatively higher to to a creased risk” refer provided by the medical context was Inter- in one of an adverse outcome probability substantially expert, venors’ and is in ac- is, compared groups to other group —that cord with the definitions of “absolute risk” (“ to “relative See at 670 Rela- risk.” ante by risk” relied upon and “relative the refers ‘the tive risk’ ratio risk Court: among risk exposed disease those degree the those ex- of risk often among
factor to risk not Assessment risk, example, study expressed For one com- of absolute posed.’”). terms develop- rate pared the of suicide for women who relates to the chance ing a time-period (e.g., had received induced abortions with the disease over a (e). by throughout not- 9. The Court trivializes this distinction rather than subsection For example, advisory, ing any type of medical "risk” can be unlike the suicide the advi- decreased, 670-71, sory regarding depression ante not see risk does "increased” risk,” finding legislature by expressly did state that is an state it “increased any any in fact does form of the not use word "risk” with "technical nor it reiterate 23A10.1(l)(e)(i). precision,” (agreeing at 671 term at all. See ante with "risk” 34— legislative Ironically, refusing adopt district court "that drafters construction 'may meaning gives fully of the term risk” that effect understood “increased Court, statute, profes- every phrase word of the it is the of this as used the medical Yet, ”). legislature legislature, had rather than the state that fails to sion' if the intended Court, distinguish precision meaning technical the trivial envisioned among many meanings possible have had no reason to use the term would alone, risk” in the suicide term "risk.” "increased suicide) risk of or in five 10% lifetime terms risk” definition of increased risk. For risk, comparison example, report of relative which is a American Psy- (“APA”) probability of an adverse outcome in chological Association’s Task example, groups. two For Abortion, Force on Mental Health and would considered an increased risk A, Branson Decl. Ex. Sept. ECF signifi- (hereinafter for risk is 283-3, relative Nos. 283^4 “APA Re- if cantly higher women who abort com- port”), “tendency decries confuse a pared birth or give to women who never fallacy.” and a cause” as a “logical have children. APA at 31. Report example, As another *14 ¶ Planned Parenthood submitted into the 6, 6, 2006, Coleman Jul. Decl. ECF No. journal record a to a added). letter from (emphases one of the researchers mentioned above. usage” Based on the “accepted While emphasized the researcher that his field, Peters, term in the relevant linking studies suicide and abortion did not 885, N.W.2d at the term “increased risk” causation, prove resolutely he reiterated (ii) that subsection indicates the “rela- finding his of “increased risk.” Mika Gis- tive by risk” definition is the one intended al., sler Pregnan- et Letter to the Editor: the legislature advisory. for the suicide cy-Related Deaths, 27 Violent Scand. J. Noticeably absent from the contextual def- 1:54, (1999), Pub. Health ECF No. 206- inition of a requirement “increased risk” is (hereinafter 1999”). “Gissler It would for proof of causation. This stands to be for study nonsensical a to find a rela- reason, because, explained by as the Inter- risk,” tionship of “increased not but causa- venors’ expert: tion, if the term “risk” was itself under- examining When complex psy- human stood to a indicate causal link. chological physical outcomes, health such depression behavior, as and suicidal Finally, Planned Parenthood submitted precise identification of a single, causal into the record the label approved applicable mechanism to all situations is (“FDA”) Drug Food and Administration possible.... for the abortion-inducing drug Mifeprex Given this inherent complexity, sound RU-486). (mifepristone, also known as The epidemiological evidence is nevertheless paragraph requires first of that label that derived identifying those variables prescribing physician “inform the pa- which are most linked strongly with ad- tient about the risk of these serious [listed] verse or physical mental health out- events,” expressly but states “[n]o large comes groups for individuals. relationship causal between the use of Mi- ¶¶ 5-6, Coleman feprex Decl. Jul. misoprostol While these events such evidence of risk eventually relative has been established.” Branson Decl. Ex. may an substantiate inference of DD, direct Aug. No. ECF 206-5 causation experiments added). as further rule out (emphasis Indeed, the FDA regu- ¶ plausible explanations, other see id. at lation governing label proof conclusive is not causation re- labeling “[t]he shall be revised include a quired in order for the identification of a warning as soon there is reasonable medical risk. evidence of an of a association serious drug;
Even
hazard with
upon
the evidence
a causal relationship
which Planned
(as
repeatedly
Parenthood
need not
been
proved.”
relies
does the
C.F.R.
201.80(e)
added).10
today)
§
Court
is consistent with the “reía-
(emphases
Once
10. 2006),
quoted language formerly appeared
Mifeprex
under which the
label was
201.57(e)
(superseded
21 C.F.R.
June
peer-review process
the FDA indication
for
again, it would
nonsensical
in the ab-
disclosure of “risks”
was not followed for the studies at
require
issue.
relationship” if
of a “causal
proof
argues
sence
Planned
While
Parenthood
was
“risk” itself
understood
the term
not examine the
these studies do
correla-
link.
a causal
indicate
between abortion
suicide
suffi-
(as
to prove
cient detail
causation
dis-
(ii),
legislature
re-
In subsection
III),
in more detail
Part
there is
cussed
“increased
the disclosure
quired
suggest
that the
risk,”
nothing
record
accept-
Based on the
not causation.
field,
in any
in the medical
data
calculations
underlying
of the term
usage
ed
the Court’s
simply
support
there
no
example,
studies are flawed. For
these
meaning
that the
term
conclusion
expert
Parenthood’s own
admitted
in the context of
34-
risk”
“increased
studies,
which determined a
one
23A-10.1(l)(e)(ii)
implies
disclosure of
100,-
per
rate
31.9
after abortion of
Instead, subsection
relationship.
causal
compared
000 as
to suicide rate after live
*15
(ii)
simply
a disclosure
100,000,
an
per
birth of 5.0
“indicates
asso-
is high-
of
and suicide ideation
risk
suicide
causation,
ciation; not
but an association”
compared
abort
er
women who
and
between abortion
suicide. Stotland
groups, such as
women in other relevant
283:22-284:9,
Dep.
ECF No. 152-12.11
or
not
give
women who
birth
do
become
if
“any quarrel
When asked
she had
with
pregnant.
association,”
validity
expert
of that
replied that she did not.
at 284:11-13.
Id.
II.
record,
Based on
the studies submit
required
regard to whether
With
sufficiently
ted by the State are
reliable to
Rounds,
truthful,
530
is
see
F.3d
disclosure
support the truth of the
proposition
into the record
the State submitted
the relative
of suicide and
suicide
peer-re-
published
studies
numerous
higher for
ideation is
women who abort
journals
medical
that demonstrate
viewed
compared
their
to women
pregnancies
who
statistically significant
correlation be-
give
or have not become pregnant.
birth
suicide. The studies
tween abortion and
It
is worth
that Planned
repeating
also
respected, peer-re-
published
were
challenge
Parenthood does
disclo
journals such as the Obstetrical
viewed
may
to “[djepres
sure that abortion
lead
Survey,
and
Gynecological
British
psychological
sion and related
distress.”
Journal,
the Journal
Medical
Child
of
34-23A-10.1(l)(e)(i);
§
see also
S.D.C.L.
Psychology
Psychiatry,
and
the Southern
Carhart,
124, 159, 127
550
Gonzales
U.S.
Journal,
the En/ropean
and
Jour-
Medical
(2007)
(stating
III.
involved,
expla-
that all other plausible
Despite
extensive evidence in the
Indeed,
nations be ruled out first.
suicide,
an
risk” of
record of
“increased
Supreme
given
“has
Court
state
feder-
Parenthood contends that
disclo-
legislatures
pass
al
wide
leg-
discretion to
sure of the increased risk would be mis-
islation in
where
areas
there
patient
leading
seeking
or irrelevant to a
uncertainty,”
scientific
“[m]edical
see
F.3d at
uncertainty does not foreclose the exercise
because certain authorities
indicated
legislative
power
the abortion context
*16
that
is no
there
direct causal link.
In
any
it
more than
does in other contexts.”
particular, Planned
argues
Parenthood
Gonzales,
163-64,
U.S. at
S.Ct.
factors,
underlying
that certain
such as
1610. In particular,
requirement
“a
that a
preexisting
problems,
mental health
pre-
give
doctor
a
certain
woman
information as
dispose
women
to
some
both
have un- part
obtaining
of
her
consent to
abor-
pregnancies
wanted
and to have suicidal
is,
for constitutional
no
purposes,
dif-
tendencies,
resulting
misleading
a
cor-
requirement
ferent from a
doctor
relation between abortion and suicide that
give
specific
certain
about any
information
has no
causal component.
direct
Under medical procedure.” Planned Parenthood
view,
required
disclosure would
833, 884,
Casey,
Se. Pa. v.
505 U.S.
of
misleading
be
irrelevant
the decision
(1992).
S.Ct.
Thus, regarding Mifeprex truthful as to disclosure unconstitutionally been out increased risk cannot whether abortion has ruled as a because of misleading simply significant or irrelevant statistically causal factor un- degree “medical scientific some post-abortion suicides. Gonzales, 550 certainty,” U.S. Second, argues, Planned Parenthood itself whether abortion found, district court role in the observed correla-
plays a causal College Gy- American of Obstetricians and In- suicide. tion between (“ACOG”), a necologists pro- well-known stead, Planned Parenthood would “rejects organization, any fessional medical any and scientific un- show that “medical suggestion that increased risk of suicide into a certainty” been resolved certain- are and suicide ideation known risks of any role for ty against causal abortion. F.Supp.2d abortion.” 650 at 983. Unfor- words, in the suicide other order render tunately, there was no evidence from unconstitutionally misleading, in the ACOG record the district court would have to show Planned Parenthood only consider. The evidence rec- out, ruled to a that abortion has been pertaining position ord to ACOG’s is a scientifically certainty, degree accepted report by reference a 2005 second-hand statistically factor in significant as a causal expert, Dr. M. State’s Elizabeth Shadi- An post-abortion suicides. examination gian, quoted two sentences from a reveals Planned Parenthood’s evidence single “Long- ACOG Practice Bulletin: cannot meet this burden. to surgi- term risks sometimes attributed First, points out potential cal abortion include effects on regula- labeling FDA scope that the However, sequelae. ... psychological would to re- appear tions discussed above literature, carefully when evaluat- warning quire of increased risk of suicide ed, clearly significant demonstrates no abortion-inducing Mifeprex, if drug for the negative impact of these factors valid. Because the that risk were indeed *17 surgical with abortion.” Elizabeth M. approved by actual label the FDA does not Report the Task Shadigian, S.D. Force a warning, include such Planned Parent- Sept. to Study Abortion ECF the FDA must have argues hood that (hereinafter “Shadigian No. 177-4 Re- the of found that increased risk suicide O, Shadigian port”); Dep. see also Ex. However, after abortion not valid. an 137-38, the (quoting ECF No. 147-15 reci- FDA-approved represent an label does Shadigian those Re- tation of lines the the definitive or exclusive list of risks asso- Shadigian reported Dr. further her port). drug, ciated with a because FDA “[t]he opinion that was erro- ACOG’s statement 11,000 to monitor the limited resources and that “ACOG seems to claim that neous market, drugs the and manufacturers the they adequately have evaluated medi- have about superior access information literature, they cal but do not consider our Co., Pharm. drugs.” their KV Lefaivre we many other studies evalu- study or Cir.2011) (8th (quot- 940-41 F.3d Shadigian Report at 5. There is no ated.” Levine, 578-79, ing Wyeth v. 555 U.S. as to other evidence in record what 1187, 1202, L.Ed.2d considered, in “medical literature” ACOG (2009)). Moreover, the before us record evaluated,” “carefully it what fashion was any of whether does not show evidence “psycholog- whether suicide was one was sub- link between abortion suicide considered, sequelae” ical whether ACOG’s FDA, provide nor mitted to does any peer re- analysis independent received analysis, any, if details of FDA’s Thus, view, “Practice Bulle- label or indeed whether FDA-approved link. tin” to be purports sort of reliable those flaws for each study considered. In- authority stead, at all. unsup- report scientific The two uses a handful of studies ported sentences from an Practice examples. ACOG as illustrative The State and argument Bulletin no lend credence to the lack rigor Intervenors contend that this that has been out abortion ruled analyze the APA Report allowed studies statistically significant causal factor that found abortion benign experi- to be “a post-abortion suicides. most stringently ence for women” less showing than studies that abortion caused Third, Planned Parenthood cites the ¶ 14, effects. Sept. adverse Coleman Deck previously APA Report. mentioned 16, 2008, ECF No. For example, 290-3. six-person Task Force on Mental Health APA Report while the suggests that the and Abortion that APA authored the Re- showing studies increased did not port “50 papers published reviewed compare women receiving abortions to peer-reviewed journals between 1990 and women who carried unplanned pregnan- analyzed empirical of a data term, cies to at least purport- three studies quantitative nature on psychological expe- edly considered the task force did use riences abortion, associated with induced such a control group, each of those compared Report to an alternative.” APA still “definitively studies indicated that at 64. For some studies found abortion was associated with more mental increased health mental risks associated ¶ problems.” health 19. Id. at The APA the APA Report identifies Report also acknowledge does not perceived deficiencies, methodological in- some of studies inability showing increased risk cluding comparison an to limit the statistically did group potential control for other to women who unplanned carried history causal factors such as pregnancies depres- unwanted to term. See id. at sion, anxiety, ideation, study Based on one childhood attempted abuse, abuse, variable, physical sexual account for that child neuroti- report states ¶ cism, 15(c). and low Id. “the scientific self-esteem. best evidence indicates example, although As another a high the relative risk of mental health rate (i.e., problems among subjects attrition the loss of adult from a women who have an long-term study unplanned study before pregnancy greater they is no if is com- plete) typically regarded as a elective first-trimester methodo- weakness, logical Report than if they deliver that the APA down- pregnancy.” Id. plays significance attrition, (emphases original). very possibly In the same *18 sentence, however, because “the highest the studies with the attri- report admits that high tion published [as the rates as ... are provide 60%] literature could also the not provide “unequivocal ones that little evidence of nega- evidence the regarding rela- ¶ 15(d). tive health tive effects” abortion. at mental risks Id. A associated with of published abortion se number in per compared authors the field to its alterna- (childbirth contacted the APA point prob- tives of an to out these unplanned pregnan- cy).” lems and ask that the APA Report Id. ¶¶ Id. at retracted. 28-29. and argue State Intervenors that minimum, the APA is At a it that Report appears many deficient in several respects. published the APA in do Report alleges accept While authors the field not methodological flaws in all the opinion six-person of the studies the APA’s task strong that link found a abortion that the suggests between force “best evidence” outcomes, mental adverse health it that is no significance there real to the link does not systematically analyze However, list or between abortion and suicide. follows, certainty abortion is a lished with the discussion that for purposes suicide, post-abortion APA Re- causal factor accept findings the I will acknowledges also that abortion has not crux of the matter face value. The port at as a factor and that been ruled out causal Report APA states is that while the better-designed studies would be needed at the time its available the evidence Thus, Report pro- APA to do so.13 support is “sufficient review not for support proposition no association between vides claim that observed has out as and mental health was abortion been ruled statistical- history abortion ly post-abortion abortion,” (emphasis significant at causal factor by id. caused added), published that the suicides. it also concludes and more re- is inconclusive
literature short, although In the record reflects disentangle “to confound- search is needed degree of “medical and scientific un some relative risks of ing factors and establish Gonzales, 163, 127 certainty,” 550 U.S. at alternatives,” to its id. compared whether abortion itself is as to 72; (admitting at at see also id. factor in the a causal observed correlation provide could not “un- published literature suicide, between abortion and there is the relative equivocal regarding evidence nothing suggest record to that abor with abor- mental health risks associated se per tion as a cause has been ruled out to its alternatives compared se per result, certainty. As the disclosure (childbirth unplanned pregnancy)”). of an of that correlation an “increased risk” is words, unconstitutionally not Report misleading while the APA or irrele In other Casey have not estab- vant under that studies date Gonzales.14 finds Report cites the APA for the the issue for foreseeable future. While The Court perfect methodologically possible the APA waits for "it to talk proposition that is not on the effect of "unwanted” or "un- research on risk” about effect of abortion planned” pregnancies, others have found comparison data conclusive without achievable, perfection such is not because carry pregnancies unwanted "women who frequently "pregnancies that are were aborted 672. The Court does not term.” Ante at initially partners intended one or both authority the APA has explain what be- initially pregnancies are unintended often arbiter the discussion. To come sole pregnancy progresses, become wanted as legis- that the the extent the Court holds state rendering assessment of wantedness/intented- enact, may and the federal courts lature not change subject to [sic] ness considerable over affirm, policies ... may ] not that “contradict! ¶ Coleman Deck Jul. ECF time.” leading experts in relevant associations of addition, "pregnancy No. 189. wanted- fields,” Supreme I ante at note open multiple subjec- is ness/intentedness squarely rejected this contention. Court ¶ interpretations.” Id. at APA tive 16. The Gonzales, Compare 550 U.S. Report specify does what of data sort ("Considerations marginal safety, in- acceptable these variables would be to resolve risks, cluding the are within the balance of satisfaction, the issue the APA's competence regulation legislative when report entirely even to conflate the seems ends.”) legitimate pursuit and in rational concepts separate pregnancy of whether *19 Gonzales, 550 U.S. at with initially it "wanted” and whether was J., dissenting) (noting (Ginsburg, that See, “planned” e.g., or "intended.” APA Re- legislature’s chosen balance contradicted (“These port at 64 studies were evaluated professional "statements from nine associa- respect ability their to draw sound with to tions, ACOG,” compa- including while "[n]o conclusions about relative mental health supported” legisla- groups rable medical compared with risks associated abortion to position). ture's pur- that be alternative courses action can authority by facing a By attributing such unwarranted sued a woman similar circum- case, appears (e.g., preg- an unwanted or unintended to the APA in this it stance nancy).”). "possible about [] Court has muted talk” matter, a final I address the Court’s and non-misleading pa- As relevant to the tient’s decision to have an abortion. “nothing in general more contention that advisory unproven prevent would IV. inference that the ‘increased risk’ men- conclusion, I would that the hold re- [the tioned in is increased abor- statute] quirements S.D.C.L. 34-23A- contrary, phy- tion.” Ante at 671. To the 10.1(l)(e)(ii) are satisfied a disclosure provide be sicians who abortions should relative risk of suicide suicide in capable reviewing the research higher ideation is for women who abort field, understanding the difference be- compared to women in other relevant causation, proof tween relative risk as in groups, described the relevant medi- explaining correctly pa- to their cal research. The statute not require does tients, just they as capable should be physician a to disclose that causal link explaining biological nature of the “hu- between abortion and suicide been being” man advisory. See truthful, proved. The disclosure is as evi- (“The F.3d at 736 sug- State’s evidence by a published denced multitude of studies gests the biological sense in which the peer-reviewed journals medical whole, embryo separate, unique or fetus is an found increased of suicide for wom- living should be clear in to a context who en had received compared abortions physician.”). “constraining]” Rather than birth, miscarried, to women gave who or “overriding” physician’s professional pregnant. never became Various studies judgment, as suggests, the Court ante found this correlation hold even when 672-73, actually the statute on controlling relies poten- for the effects of other physician’s suicide, judgment present tial causal factors including underlying pre-existing depression, anxiety, research in the accurately. field ideation, abuse, sexual physical childhood attempts While the Court paint abuse, neuroticism, child and low self-es- requirement extremely controversial, as teem. even skeptical some who researchers are
of abortion’s causal role nevertheless advo- Moreover, advisory the suicide is non- cate disclosure of the increased risk of misleading patient’s and relevant to the patients. suicide to abortion decision to an required See Gissler have as by Casey. practice The standard medical (rejecting at 55 the idea that “an patients is to inform significant risks induced abortion in itself causes ... sui- procedure that have been associated awith risk,” cide but stating fact that “[t]he through research, if even causa- some women who induced abortion tion has not yet proved. been While are at risk for [including violent death points uncertainty year suicide] within after the procedure as to whether abortion itself is a causal should acknowledged provision factor the observed correlation to sui- services.”). abortion cide, opposed to other factors that tend Accordingly, I would hold that the sui- independently be associated with both truthful, cide only suicide, is not but also abortion and the Supreme Court Although presented, the issue is not I an If adverse event correlates preclude possibility solely would not that State due independent to the effect of under- factors, could requiring lying have an might interest a State nevertheless wish *20 patient seeking provide warning an abortion be patient informed to a who seeks abortion, abortion, risks that correlate patient even if an on the likelihood that the abortion were underlying ruled out as a causal element. also shares the causal factors. legislatures and federal given state “has legislation in areas pass
wide discretion scientific un- is medical and
where there con- “in the abortion including
certainty,” Gonzales, 163-64, 127 550 U.S.
text.” Thus, a truthful disclosure
S.Ct. 1610. misleading or unconstitutionally
cannot be simply degree some
irrelevant because uncertainty persists. scientific
medical and sure, requirements informed consent
To be to inform woman’s [a]
“must calculated choice, it,” not hinder ante at
free 877, 112 Casey, U.S. at
(quoting hin-
2791), there is no unconstitutional but where, as choice
drance on woman’s
here, using regula- “its merely the State physician to authority require
tory truthful, non-misleading informa-
provide decision to patient’s relevant might even if that information
an child- encourage patient to choose
also abortion,” 530 F.3d at
birth over that, face, I on its would hold
735. neither undue presents rights nor violation on abortion
burden speech rights. physicians’ free
Accordingly, respectfully I dissent from in Part II. C. holding
the Court’s
Domingo Eugenio LOPEZ- Petitioner,
GABRIEL, Attorney HOLDER, Jr.,
Eric H. States,
General of the United
Respondent.
No. 10-3802. Appeals, Court of
United States
Eighth Circuit. 14, 2011. June
Submitted: Sept.
Filed: