Planned Parenthood on Trial: The South Dakota Abortion Case

Nowadays a lot of attention focuses on the big Supreme Court abortion cases, namely, Dobbs v. JWHO and the consolidated cases addressing the Texas heartbeat law that creates civil remedies. But possibly the biggest abortion case you never heard of is Planned Parenthood v. Noem, currently on appeal in the U.S. Court of Appeals for the Eighth Circuit. ACLJ attorneys, appointed as special assistant attorneys general to represent South Dakota officials on appeal, recently filed the state’s opening appeal brief. Let's take a closer look at the case.

Like so many abortion cases, this one started with Planned Parenthood challenging a state statute regulating abortion. While the case has been in court since May 2011, the litigation now focuses on one particular requirement: that women considering abortion first visit a pregnancy health center (PHC) before consenting to abortion. Planned Parenthood says the requirement is unconstitutional, and a federal district court judge in South Dakota granted a preliminary injunction against the requirement a month after the case was first filed. Pro-life PHCs intervened to defend the law, and what followed was nearly a decade of litigation, including a slew of motions, discovery (examining witnesses and documents), evidentiary declarations, and several amendments to the South Dakota statutes. Finally, in December 2020, the state officials and the PHCs filed a joint motion to dissolve the injunction against the third-party counseling requirement. The district court denied that motion in August 2021, and the state officials and the PHCs all appealed. That’s when Governor Kristi Noem, along with state Attorney General Jason Ravnsborg and two other state officials, retained a team of ACLJ attorneys (including ACLJ Chief Counsel Jay Sekulow, Jordan Sekulow, myself, and several other senior ACLJ attorneys) to represent the state defendants on appeal. We filed the State Appellant’s Brief on December 3, 2021.

Why is this case a big deal? There are several reasons.

First, the record in this case is, frankly, devastating for Planned Parenthood. There are sworn statements from former Planned Parenthood officials as well as admissions extracted from Planned Parenthood personnel in depositions. The picture this evidence paints is, to put it mildly, pretty ugly. For example, the evidence shows that, while many pregnant women who come to abortion providers are uncertain about abortion, Planned Parenthood basically assumes that every pregnant woman who walks in the door should get an abortion. Here’s an excerpt from our brief filed for the state defendants (PPMNS (i.e., Planned Parenthood Minnesota, North Dakota, South Dakota) refers to the particular Planned Parenthood branch that covers South Dakota and some other states):

As reflected by PPMNS’s intake procedures, internal manuals and guidelines, and actual practices (as detailed in declarations and depositions, including from PPMNS practitioners, clinic managers, and patients), PPMNS has been derelict in its duty to fully inform its patients’ consent and contemptuous of proper coercion screening. [Declaration of former Planned Parenthood staffer Susan Thayer:] [the] clinics trained counselors “always” to “focus on abortion as the best option”; “our job . . . was to convince women to have abortions” . . . [Declaration of former Planned Parenthood staffer Abby Johnson:] [the] philosophy of Planned Parenthood clinics is that any “unmarried [woman] with an ‘unplanned’ pregnancy . . . was best off having an abortion.”

It gets worse:

PPMNS “counselors” are, in reality, sales agents for abortion. They have no expertise in medicine, biology, embryology, psychology, or even counseling.  Their principal training is in overcoming a woman’s misgivings about abortion.  “Counselors” do not actually counsel for consent or coercion or a woman’s options for keeping her child.  The objective of that “counseling” is to probe for factors that might dispose a woman toward abortion, employ them to persuade her that abortion is her “best option,” and secure her signature on the necessary forms.

In fact, as the record shows, “Planned Parenthood’s clinics pressure staff to ‘sell’ abortions via monthly quotas and revenue targets imposed on affiliate clinics by the national organization. Clinics that meet corporate quotas are rewarded with pizza parties.” Thus, “PPMNS’s interest, according to veteran personnel from its facilities and former ‘patients,’ is to perform as many abortions as possible with as little ‘counseling’ as possible.” But that’s not all:

In an environment that “move[s] each woman through the process as quickly as possible,” where women are herded toward abortions like “cattle in the chute,” there is no opportunity to form a meaningful physician/patient relationship or effectively avoid doing coerced abortions.

In other words, Planned Parenthood does not prioritize – or even, apparently, care about – protecting women who are being railroaded into abortions they do not want. The testimony on this point is appalling, so appalling that it merits quotation of some longer excerpts from our brief:

Even direct evidence of coercion may not be enough for Planned Parenthood.  Margie Ayers testified that she repeatedly told a Planned Parenthood clinic her parents were forcing her to abort, but the clinic staff and abortionist did nothing except try to convince her to abort, and then do the abortion.

. . .

Planned Parenthood has adopted a “don’t ask, don’t tell” policy toward probing for pressure or coercion. Planned Parenthood staff ignore indications and cues that a woman is conflicted or ambivalent, such as actual disclosures by, or overt indicia of pressure on, the patient or crying during intake or the procedure.

. . .

Abortions are performed even when women are obviously ambivalent, conflicted, or being subject to coercion or pressure.

“Frequently, we would see older men accompanying younger girls whose pursuit of an abortion did not appear to be voluntary.  You could almost always spot these women by their countenance or body language which suggested that they were just doing what they had been told to do.  When the controlling male figure insisted on being present for any ‘counseling’ so that the woman would never be alone with the ‘counselor,’ we were trained to comply with that request.  In this situation, we were directed not to ask any questions.  We simply hurried them along and moved on to the next woman who was always waiting.” (THAYER)

Another former employee confirmed this deliberate avoidance:

“Frequently, the pre-abortion counseling would reveal that the woman was being subjected to coercion or pressure by other people to have an abortion that she did not want.  Usually, it was the father of the child or the woman’s parents who were forcing her to have an unwanted abortion.  When these situations arose, we hurried through the counseling session to avoid asking any questions which would confirm that she was being forced to have an abortion.”(LANCASTER)

Worse still, Planned Parenthood would even take the side of those forcing the abortion.  As one former employee testified:

“One common example would be parents of a young woman, 16 or 17 years of age, demanding that their daughter have an abortion.  The parents would take the girl into our clinic and when they could not convince their daughter to get the abortion, we would take over the job of convincing the woman that their parents were right.  We had ways to persuade them to have the abortions.  This philosophy came from Houston and New York and is systemic throughout Planned Parenthood nationwide.”

The personal stories of women who underwent coerced abortions at Planned Parenthood facilities, recounted in our brief, are truly heartbreaking.

South Dakota, confronting Planned Parenthood’s failure to properly inform or screen these women, chose to outsource the counseling and screening process, in part, to pregnancy centers. As we explain:

The record in this case . . . convincingly demonstrates that the state had every reason to be concerned about coerced abortions and the consistent failure of PPMNS properly to inform consent to abortion or to screen for, or even try to hinder, coerced abortions. The record indicates that the profit-driven, ideologically-inclined abortion practices in the abortion industry in general, and at PPMNS in particular, are wholly unsuitable to prevent pregnant women from being railroaded into abortions that they do not want, and that, if anything, PPMNS will assist the perpetrators in pushing pregnant women into abortions they do not want. Indeed, PPMNS admitted that it performs coerced abortions so long as it informs a woman that she will be at risk for adverse mental health consequences. The state’s requirement of independent, highly regulated, third-party counseling responds to these grave concerns.

This case is therefore important as a means to protect those many women for whom abortion is someone else’s choice. As we note: “According to PPMNS personnel, 25% of the pregnant mothers arrive at PPMNS clinics teary eyed, some with tears running down their cheeks and some openly weeping.” Planned Parenthood will not be their advocate against abortion.

But this case is important for a second reason as well. It explodes the myth that abortion is always, or even usually, a woman’s choice. At the Supreme Court oral argument in Dobbs, no one – no one – even mentioned the women who regret their abortions, some of whom suffer immensely or even become suicidal. No one mentioned the women who are pushed into abortion – i.e., those for whom abortion is a tool used by others to control the woman. The record in Planned Parenthood v. Noem, by contrast, vividly depicts the horrid underbelly of abortion and the wounds so many women suffer from this “choice.” When Planned Parenthood says it is “pro-choice,” it means that it is pro-Planned Parenthood’s choice, and that “choice” is abortion.

Third, this case shows why it makes no sense to have abortion businesses speak for women. As one witness, forced by her father to have an abortion, testified:

What is especially upsetting and offensive to me, is that I now understand that Planned Parenthood claimed that they had the right to go to court to litigate my rights, or what they claimed were my rights. . . . Planned Parenthood didn’t represent me and my interests, and they don’t represent the interests of other women like me. . . . Planned Parenthood does not care about my rights . . . .  Without Planned Parenthood’s interference, my baby would probably be alive, and I could have enjoyed a lifetime with my child.  Planned Parenthood made sure my father got what he wanted and ensured that I alone would suffer the emotional consequences of being forced to have an abortion that I didn’t want.

At the ACLJ, we are honored to be able to represent Gov. Noem and other state officials in this important pro-life case.