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Case 4:11-cv-04071-KES Document 104

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH DAKOTA SOUTHERN DIVISION

PLANNED PARENTHOOD MINNESOTA, NORTH DAKOTA, SOUTH DAKOTA, and CAROL E. BALL, M.D., Plaintiffs, v. DENNIS DAUGAARD, Governor, MARTY JACKLEY, Attorney General, DONEEN HOLLINGSWORTH, Secretary of Health, Department of Health, and ROBERT FERRELL, M.D., President, Board of Medical and Osteopathic Examiners, in their official capacities, Defendants. ALPHA CENTER and BLACK HILLS CRISIS PREGNANCY CENTER, d/b/a Care Net Pregnancy Resource Center, Intervenors.

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Civ. 11-4071-KES

PLAINTIFFS MOTION TO DISMISS COUNTS EIGHT AND NINE OF THE THIRD AMENDED COMPLAINT WITHOUT PREJUDICE, AND TO MODIFY INJUNCTION

INTRODUCTION Counts Eight and Nine of Plaintiffs Third Amended Complaint are grounded in a challenge to the The 72-Hour Requirement in H.B. 1217 (2011) (Act), now codified at S.D.C.L. 34-23A. The 72-Hour Requirement imposes a waiting period of at least 72 hours from the time a woman conducts the required initial consultation until she may proceed with an abortion. As explained further below, the facts upon which Plaintiffs initially challenged this Requirement, and moved for a preliminary injunction of the Requirement, are expected to significantly change due to changes by Plaintiffs current physicians and other staff that 1

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previously were not possible. In light of this development, and of Plaintiffs analysis of the recently concluded Planned Parenthood v. Rounds litigation, Plaintiffs propose to dismiss Counts Eight and Nine of the Third Amended Complaint without prejudice pursuant to Federal Rule of Civil Procedure 41(a),1 and, as explained in further detail below, so move the Court. ARGUMENT A. Background Counts Eight and Nine assert that the 72-Hour Requirement imposes an undue burden on womens reproductive rights and violates their right to equal protection under the law. Plaintiffs sought a preliminary injunction based on the undue burden claim. [Dckt #39] at 28. Plaintiffs submitted to the Court evidence that, because of service and physician staffing logistics, the effective waiting period if the Act were to take effect would be at least a week and up to one month. Id. at 29-30. On June 30, 2011, the Court preliminarily enjoined multiple provisions of the Act, including the 72-Hour Requirement.2 As detailed in Plaintiffs submissions and the Courts Memorandum Opinion in support of the preliminary injunction, a significant reason for entering the injunction was the evidence Plaintiffs provided that, in practical effect, the waiting period would extend far beyond 72 hours. Until recently, that remained the case. B. Recent Operational Developments As explained in Plaintiffs preliminary injunction filings, because of the hostile environment surrounding provision of abortion services, Plaintiffs have been unable to identify
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The 72-Hour Requirement is also implicated in Plaintiffs claim in Count One that the Act was enacted with the impermissible purpose to restrict womens reproductive rights. Plaintiffs do not dismiss any aspect of this claim.
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Following amendments to the Act, H.B. 1254 (2012), that largely resolved the constitutional problems with two provisions of the Act, the Court dissolved the injunction as to those provisions and maintained it as to the remainder. [Dckt #84]. The 72-Hour Requirement is one of the provisions as to which the injunction continued. 2

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any licensed physician residing in South Dakota willing to perform abortions. Plaintiffs Sioux Falls clinic is staffed with physicians who travel in from other states. The Acts requirement that the same physician conduct, in-person, both the initial consultation and the abortion procedure, no sooner than 72 hours after the initial consultation, renders the logistics of providing services that much more difficult. From the time of the preliminary injunction motion through very recently, Plaintiffs were unable to secure physician services that would allow them to comply with the Acts requirements in anything close to a 72-hour timeframe. For that reason, as noted by the Court, the practical effect of the waiting period would have been at least a week and up to a month. [Dckt #39] at 29-30, 33. Recently, however, circumstances have changed, such that Plaintiffs now expect to be able to staff the Sioux Falls health center in a manner that would reduce the waiting period for most patients to close to the 72 hours required by the Actthereby making the effective waiting period weeks shorter than what Plaintiffs demonstrated at the preliminary injunction stage. More specifically, Plaintiffs have a newly-hired physician who has been able to change her schedule to permit her to provide services in South Dakota more frequently, something that the physicians providing services at the time of the preliminary injunction adjudication were not able to do because of other clinical obligations. Combined with critical adjustments of the schedules of other physicians and staff that also previously were not feasible and/or would not have provided sufficient coverage, Plaintiffs are able to mitigate some of the worst delay burdens to their patients that the 72-Hour Requirement would otherwise cause. Making these drastic changes simply was not possible with the staff in place at the time Plaintiffs filed their litigation. However, it is unclear whether this arrangement will be sustainable over the long term. Nor is it known with any specificity how the new schedule will affect patient access to abortion services.

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Nevertheless, because the new service schedule represents a significant change in circumstances from those that underlay adjudication of the preliminary injunction motion, Plaintiffs have notified Defendants and Intervenors3 and now the Court of the change. Plaintiffs have concluded that the appropriate course of action is to seek leave to dismiss their undue burden and equal protection challenges at this time and to modify the preliminary injunction accordingly. C. The Eighth Circuits Decision in Rounds It is important to note that Plaintiffs maintain that the 72-Hour Requirement imposes an undue burden on womens reproductive rights, even to the extent Planned Parenthood is able to staff its clinic so as to provide abortion services in a way that keeps the delay to close to the 72hour waiting period mandated by the Act. However, prior litigation in Planned Parenthood Minn., N.D., S.D. v. Rounds, 686 F.3d 889 (8th Cir. 2012)(en banc) highlights the importance of ensuring that the fullest possible record is developed while the case remains in the District Court. In Rounds, the en banc Court of Appeals adjudicated the constitutionality of the Acts Suicide Disclosure in part on the basis of new research findings allegedly material to the determination of the District Court regarding any association between suicidal ideation/suicide and abortion; these findings had not been previously been considered by the District Court because they were published after the District Court had issued its final ruling. Plaintiffs contended that, if the Eighth Circuit concluded that the District Court erred in granting partial summary judgment to Plaintiffs, the matter should be remanded to allow the District Court to conduct a trial or at minimum review the research
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Plaintiffs informed Defendants, Intervenors, and the Court of a potential change in circumstances on November 19, 2012. Plaintiffs notified the Defendants and Intervenors of the specific changes and relief contemplated by this Motion on December 17, 2012, and requested their position on dismissal without prejudice. Defendants and Intervenors requested the opportunity to review Plaintiffs filing before taking a position. Consequently, Plaintiffs do not presently know whether this Motion will be opposed. 4

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evidence not previously considered. The Eighth Circuit declined, reversing the District Court and upholding the constitutionality of the Suicide Disclosure based in part on this evidence not previously considered by the District Court. Id. at 902-904. In addition, the Court declined to remand the matter to allow the District Court to evaluate the effect of subsequent amendments to the relevant statutory provisions. Id. at 911-12 (Murphy, J., dissenting). In recognition of the proceedings in that case, Plaintiffs have concluded that it is not prudent to proceed with a facial challenge to the 72-Hour Requirement while scheduling and staffing remain potentially in flux, and without having had the opportunity to monitor and document the effect of the new schedule on access to abortion services. While Plaintiffs are not precluded from complying with the 72-Hour Requirement while litigating their facial challenge, it is not clear that development of a reasonably complete record on the 72-Hour Requirement is compatible with the timelines for litigating the Pregnancy Help Center Requirements, especially in light of the uncertainties as to whether additional staffing and scheduling changes will occur.4 D. Dismissal Should be Without Prejudice As explained, Plaintiffs new capacity to reduce the burdens of the 72-Hour Requirement is untested, and additional scheduling and staffing changes may yet occur. Further, Plaintiffs intend to gather evidence of the impact the 72-Hour Requirement has on womens access to constitutionally-protected abortion services, to determine whether further challenge (either facial or as-applied) is appropriate. Consequently, because dismissal at this time is based upon operational and legal developments occurring after the filing of the Complaint and issuance of the preliminary injunction, Plaintiffs should be allowed to dismiss Counts Eight and Nine without prejudice or penalty. In contrast to the 72-Hour Requirement, the circumstances underlying the preliminary injunction of the Pregnancy Help Center Requirement have not changed. Plaintiffs are not dismissing any portion of their challenge to this Requirement. 5
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The decision whether to permit a party to dismiss a claim without prejudice rests upon the sound discretion of the [district] court. Hamm v. Rhone-Poulenc Rorer Pharm., Inc., 187 F.3d 941, 950 (8th Cir. 1999); see also Kellmer v. Raines, 674 F.3d 848, 851 (D.C. Cir. 2012) (motion to dismiss without prejudice should be granted unless dismissal will inflict clear legal prejudice on a defendant) (citation omitted).5 Among the factors a court may consider in determining whether to permit dismissal of a claim without prejudice are whether: (1) the moving party has provided a proper explanation for its dismissal motion, (2) the plaintiff has shown excessive delay and lack of diligence in prosecuting the action, (3) dismissal would prejudice the non-moving parties, (4) the defendant has moved for summary judgment, (5) dismissal would result in a waste of judicial resources and resources the defendant has expended preparing for trial, and (6) the defendant will suffer emotional and psychological trauma if faced with another lawsuit. See Paulucci v. City of Duluth, 826 F.2d 780, 783 (8th Cir. 1987) (citing, inter alia, Ferguson v. Eakle, 492 F.2d 26 (3d Cir. 1974)); Hamm, 187 F.3d at 950. Here, all factors favor granting Plaintiffs motion to dismiss Counts Eight and Nine without prejudice. Plaintiffs have provided a proper explanation, Hamm, 187 F.3d at 950, for both the substance of their motion (the need to develop a complete factual record to challenge the 72-Hour Requirement) and its timing (recent staffing changes that will reduce the length of the waiting period for our patients). In addition, Plaintiffs have been diligent in prosecuting this case. Moreover, neither the State nor Intervenors would suffer clear legal prejudice from Rule 41(a) is an appropriate mechanism for the proposed dismissal. Although there exists some disagreement on whether a plaintiff must follow Fed. R. Civ. P. 15(a) or 41(a) when dismissing less than all of the claims involved in an action, . . . [the Eighth Circuit has] recognized that the differences [are] more technical than substantial. Wilson v. Crouse-Hinds Co., 556 F.2d 870, 873 (8th Cir. 1977). [T]he same considerations are relevant to dropping [a] claim regardless of which rule is invoked. Hardees Food Systems, Inc. v. Hallbeck, No. 09-cv664, 2010 WL 4968180, at *2 (E.D. Mo. Nov. 24, 2010) (citing Wilson, 556 F.2d at 873). In the alternative, if the Court prefers that Plaintiffs proceed under Fed. R. Civ. P. 15(a), Plaintiffs would seek leave to amend their complaint. 6
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dismissal, as no party would suffer any cognizable legal harm upon the dismissal of Plaintiffs claims. Kellmer, 674 F.3d at 851 (los[ing] an opportunity for a favorable final disposition of the case is not legal prejudice)(citation omitted). No party has moved for summary judgment, and at this pre-discovery, pretrial stage, concerns over expended judicial and private resources are comparatively minimal. Hamm, 187 F.3d at 950; Paulucci, 826 F.2d at 783. Indeed, as to the equal protection portion of the challenge, which was not at issue in the adjudication of the preliminary injunction, close to no judicial or private resources have been expended. Finally, while courts have recognized that a private individual litigant might be traumatized if a case were dismissed upon the eve of trial, see Ferguson, 492 F.2d at 29, such concerns are inapplicable here. In sum, all of the relevant factors indicate that the Court should grant Plaintiffs motion to dismiss Counts Eight and Nine without prejudice.6 E. Timing of Relief Should the Court grant the requested relief, Plaintiffs request that the modification of the injunction take effect 30 days after the entry of the Courts Order. This will provide Plaintiffs with reasonable advance notice of a clear date for compliance with the 72-Hour Requirement, and permit Plaintiffs to fully implement the necessary operational and travel changes.

Plaintiffs are mindful that in the Rounds litigation, where Plaintiffs requested permission to dismiss a claim without prejudice, dismissal was conditioned on a requirement that any future re-filing would require payment of costs under Fed. R. Civ. P. 41(d)(1). Plaintiffs do not believe that a similar requirement is appropriate in the present case, given the circumstances underlying Plaintiffs dismissal. Here, Plaintiffs are taking this action on the basis of facts and legal developments not present at the time of the initial filing, and to avoid litigation of claims while the factual predicate is evolving. However, if this Court desires to resolve whether any future refiling would require payment of costs under Fed. R. Civ. P. 41(d)(1) at this time, Plaintiffs request an opportunity to more fully brief why this Court should not order Plaintiffs to pay any costs on the previous action. 7

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CONCLUSION For the foregoing reasons, Plaintiffs respectfully request dismissal of Counts Eight and Nine of the Third Amended Complaint without prejudice, and modification of the preliminary injunction accordingly. Dated: December 21, 2012 /s/ Stephen D. Bell Stephen D. Bell (SD Bar #3488) Dorsey & Whitney LLP 1400 Wewatta Street, Suite 400 Denver, Colorado 80202 Telephone: (303) 629-3405 bell.steve@dorsey.com Michael Drysdale (admitted pro hac vice) Dorsey & Whitney LLP 50 South Sixth Street, Suite 1500 Minneapolis, Minnesota 55402 Telephone: (612) 340-2600 drysdale.michael@dorsey.com Roger K. Evans (admitted pro hac vice) Jennifer Sandman (admitted pro hac vice) Diana Salgado (admitted pro hac vice) Planned Parenthood Federation of America 434 West 33rd Street New York, New York 10001 Telephone: (212) 261-4708 roger.evans@ppfa.org jennifer.sandman@ppfa.org diana.salgado@ppfa.org Brigitte Amiri (admitted pro hac vice) Andrew D. Beck (admitted pro hac vice) American Civil Liberties Union Reproductive Freedom Project 125 Broad Street, 18th Floor New York, New York 10004 Telephone: (212) 519-7897 bamiri@aclu.org; abeck@aclu.org

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ATTORNEYS FOR PLAINTIFFS Robert Doody (SD Bar #3668) ACLU of South Dakota 401 East 8th Street, Suite 226 Sioux Falls, South Dakota 57103 Telephone: (605) 332-2508 rdoody@aclu.org OF COUNSEL FOR PLAINTIFFS

CERTIFICATE OF SERVICE I hereby certify that on the 21st day of December, 2012, I electronically filed the foregoing with the Clerk of the Court for the United States District Court for the District of South Dakota, Southern Division by using the CM/ECF system. Participants in the case who are registered CM/ECF users will be served by the CM/ECF system.

/s/Stephen D. Bell Stephen D. Bell