2012) (en banc), is an Eighth Circuit decision addressing the constitutionality of a South Dakota law which forced doctors to make certain disclosures to patients seeking abortions.

[3] Planned Parenthood also argued that the law violated pregnant women's First and Fourteenth Amendment rights by forcing them to listen to and understand the state's anti-abortion beliefs.

[3] Plaintiff finally argued that other provisions in the statute were impermissibly vague, in violation of the Fourteenth Amendment's due process clause, and that the law's health exception was inadequate.

"[18] The district court found it significant that the statute lacked a provision expressly allowing a physician to disassociate herself from the required disclosures (which had been a feature of a similar North Dakota law).

On July 26, 2005, the state, along with crisis pregnancy centers that had intervened in the case, appealed the district court's preliminary injunction to the Eighth Circuit.

[22] The Eighth Circuit found that Planned Parenthood had failed to demonstrate the requisite likelihood of success on its claim that the statutorily-required disclosure was untruthful and misleading.

As part of its holding, the Eighth Circuit clarified that "where a preliminary injunction of a duly enacted state statute is sought, we require a more rigorous threshold showing that the movant is likely to prevail on the merits.

"[23] The Eighth Circuit stated that Planned Parenthood could only succeed on the merits of its claim that the law violated the First Amendment if it showed that the required disclosures were untruthful, misleading, or not relevant to the pregnant woman's decision to abort.

The biological disclosure was the statutory requirement that a doctor tell a pregnant patient "[t]hat the abortion will terminate the life of a whole, separate, unique, living human being.

[33] Following common cannons of statutory construction, the district court reasoned that the statute dictated that physicians inform patients of medical risks caused by abortions.

[38] On appeal, the Eighth Circuit panel rejected Planned Parenthood's facial challenge to the human being advisory contained within the statute's relationship disclosures.

[39] The Eighth Circuit also rejected Planned Parenthood's allegation that the relationship disclosure unconstitutionally forced doctors to convey moral and philosophical messages regarding abortion.

Instead, the Eighth Circuit adopted the reading proposed by South Dakota, holding that the relationship disclosure merely informed a woman that she "is legally and constitutionally protected against being forced to have an abortion.

[41] The Eighth Circuit rejected Planned Parenthood's broad challenge to the medical risk disclosure as being void for vagueness, reasoning that a doctor of ordinary intelligence could figure out how to comply with the statute.

[42] The Eighth Circuit panel, however, did agree with the district court and Planned Parenthood on the unconstitutionality of the suicide advisory that formed part of the medical risk disclosure.

The rehearing en banc was "limited to the issue of whether the district court erred in enjoining the provisions of South Dakota Century Law 34–23A–10.1(1)(e)(ii) dealing with the suicide advisory.

[44] The Eighth Circuit held that the mandated suicide advisory was truthful and did not impose an unconstitutional undue burden on women seeking abortions or their physicians.

The Eighth Circuit maintained that for Planned Parenthood to win on either its undue burden or compelled speech claims, it needed to demonstrate that the suicide advisory was untruthful, misleading, or not relevant to the pregnant patient's abortion decision.

"[48] The Eighth Circuit rejected this argument because it said that to render the advisory unconstitutionally misleading or irrelevant, Planned Parenthood would have to prove "that abortion has been ruled out, to a degree of scientifically accepted certainty, as a statistically significant causal factor in post-abortion suicides.

"[48] Planned Parenthood pointed to three main pieces of evidence to demonstrate that abortion was not considered a statistically significant factor in post-abortion suicides.

[52] The Eighth Circuit also went on to reject other publications in the record which the dissent had suggested eliminated uncertainty about the absence of the causal role of abortion in increasing the risk of suicide.

"[57] Nevertheless, Judge Loken joined the majority because he read the Eighth Circuit's decision as limiting the facial constitutionality of the statute to "only a disclosure as to relative risk that the physician can adapt to fit his or her professional opinion of the conflicting medical research" regarding abortion.

Judge Colloton's only disagreement with the majority opinion was that he found "it unnecessary to consider the meaning of the hypothetical phrase 'a description of all known medical risks of the procedure...to which the pregnant women would be subjected.

"[62] The dissenters went on to observe that in the time since the district court enjoined the suicide advisory and an Eighth Circuit panel affirmed that decision, the United Kingdom's Royal College of Obstetricians and Gynaecologists ("RCOG") issued guidance that women "be informed that the evidence that suggests that they are no more or less likely to suffer adverse psychological sequelae whether they have an abortion or continue with the pregnancy and have the baby.

"[61] The dissenters maintained that the state's interest in this case—to promote a "wise," mature[,] and informed" decision by women considering abortion[63]—was thwarted by the suicide advisory.

'"[65] Others criticized the Eighth Circuit for legitimizing "a specific class of anti-abortion laws that are designed to 'unduly influence a woman's choice, in violation of the ethical boundaries of medical informed consent.

'"[66] More recently, the Supreme Court addressed a comparable issue in National Institute of Family and Life Advocates v. Becerra, 585 U.S. ___ (2018) (hereinafter "NIFLA").