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Attorney General Marty Jackley

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Litigation Update on Abortion Disclosure and Counseling Requirements


PIERRE, S.D. –    Attorney General Marty J. Jackley announces that the State has filed documentation supporting the Alpha Center and Black Hills Crisis Pregnancy Centers’ request to intervene in the litigation over the newly enacted abortion disclosure and counseling requirements. The State has also elected to proceed in litigating the ultimate case merits of Planned Parenthood and ACLU’s claims, rather than appeal the District Court’s Preliminary Injunction Decision. 
On June 30th, 2011, the Honorable Karen E. Schreier, Federal District Court Judge, issued a Preliminary Injunction enjoining the State of South Dakota from enforcing significant portions of South Dakota’s Abortion Disclosure and Counseling Act (HB 1217) which was to take effect July 1, 2011.   The District Court recognized that “There is a compelling state interest in protecting a woman from being forced against her will to have an abortion and in informing a woman of truthful, relevant, non-misleading information about abortion, alternatives to abortion, and pregnancy assistance.”
However, the Court went on to find that the evidence failed to demonstrate that “the means chosen to achieve the identified interests are narrowly tailored toward achieving the purported compelling state interests.” This determination and whether the disclosure and counseling requirements set forth in the new legislation “constitute a substantial obstacle that will deter women from exercising their constitutional right to obtain an abortion” are significant issues to be addressed as the litigation continues. 
The State is affirmatively supporting the Pregnancy Help Centers’ request to join the litigation, in part, for the following reasons:
1.         The Pregnancy Help Centers have a significant interest in the process and method of providing abortion disclosures and counseling for women considering abortions;
2.         The Pregnancy Help Centers add a specialized expertise with respect to the subject matter of abortion disclosures and counseling, which may aid in demonstrating the State’s fundamental interest of ensuring that women are fully informed and uncoerced when considering abortions and alternatives; and 
3.         Cost considerations on any matters of joint or similar interest.
The State has elected to proceed to address the case merits, as opposed to a direct appeal of the Preliminary Injunction, in part, for the following reasons:
1.         Addressing the merits in the litigation will assist in developing a complete factual and legal record for purposes of any future appeal or future legislative action;
2.         The Eighth Circuit Court of Appeals is expected to render a decision with respect to Nebraska’s statutory scheme, a portion of which is similar to the challenged South Dakota law.   See Planned Parenthood v. Heineman.   That appellate decision may provide guidance in the ultimate resolution of the South Dakota litigation; and
3.         Time considerations - A successful appeal of the Preliminary Injunction would still require all parties to return to the District Court to address the ultimate merits of Planned Parenthood and ACLU’s claims.
FOR IMMEDIATE RELEASE :   Tuesday, July 26, 2011
CONTACT: Sara Rabern, (605) 773-3215