*1 Carolina, Governor of South CLINIC; Defendant. WOMEN’S
GREENVILLE Clinic, Medical Women’s Charleston 99-1319, 99-1710 and 99-1725. Nos. MD, Lynn, Incorporated; William pa and their themselves of behalf Appeals, United States Court abortions, Plaintiffs- seeking tients Fourth Circuit. Appellees, 27, 2000. Argued Jan. v. 15, 2000. Aug. Decided ca BRYANT, in
Douglas his official E. Car pacity South as Commissioner En Department of Health olina Control; M. Charles vironmental capacity as At Condon, in his official torney of South of the State General
Carolina, Defendants-Appellants, Carolina,
Governor South Defendant. Clinic; Charleston Women’s Greenville Incorporat Clinic, Medical Women’s Lynn, MD, ed; on behalf William seeking patients their themselves Plaintiffs-Appellees, abortions,
v. Carolina, of South Governor Defendant-Appellant, Bryant, ca Douglas in his official E. Car pacity of South as Commissioner and En Department of Health olina Control; M. Charles vironmental capacity as At Condon, in official his torney the State General of Carolina, Defendants. Clinic; Charleston Women’s Greenville Clinic, Incorporat- Medical Women’s MD, Lynn, ed; on behalf William patients and their themselves Plaintiffs-Appellees, abortions, Bryant, ca- Douglas in his official E. pacity of South Car- as Commissioner En- Department Health and
olina Control; M. Charles vironmental Condon, capacity as At- in his official torney of the State of South General Defendants-Appellants,
Carolina,
OPINION
NIEMEYER,
Judge:
Circuit
important ques-
presents
This case
tion of whether South Carolina’s
*3
establishing
licensing
standards for
abor-
of the
Regulation
61-12
South
clinics—
and Envi-
Department of Health
Carolina
Control,
Regs.
Ann.
ronmental
S.C.Code
(eff.
1996)
61-12
June
—violates
Equal Protec-
Due Process Clause and the
the Fourteenth Amendment
tion Clause of
placing an undue burden on women’s
by
by
distin-
decisions to seek abortions
perform
clinics that
guishing between
those
specified number of abortions and
and an
that do not. Two abortion clinics
action,
provider
filed this
on be-
fa-
patients,
half of
and their
themselves
constitutionality of
cially challenging the
Elliott,
Floyd Matlock
ARGUED:
The district court con-
Regulation.
Guerard,
Marion, McKay &
Haynsworth,
Regulation
cluded that the
violated both
Carolina,
L.L.P., Greenville,
Ap-
for
South
of the Fourteenth Amend-
these clauses
Jones, The Center
pellants. Bonnie Scott
“invalid,”
ment,
declared the
York,
Policy,
Law
New
Reproductive
&
for
enjoined
its enforcement.
York,
BRIEF:
Appellees.
for
ON
New
herein,
de-
amplified
we reverse this
As
Oxner, Jr., Boyd Benjamin
Dewey
George
constitutionality of
uphold
cision and
Marion,
Nicholson,
Jr., Haynsworth,
(1)
Regula-
61-12 because
Greenville,
Guerard, L.L.P.,
McKay &
interest and is
tion serves a valid state
Carolina;
Layman,
Nancy Staats
South
of national
than a codification
little more
Division,
of Health and
Department
Legal
recom-
and abortion-association
medical-
Control, Columbia, South
Environmental
the health
designed to ensure
mendations
Condon,
Carolina;
James
Molony
Charles
appropriate care of women
Smith, Jr.,
Attorney
Emory
Office
(2)
abortions;
does
Carolina;
General, Columbia, South
itself,”
right
the [abortion]
“strike
Jr.,
Carpenter,
Donald V. Rich-
E.
Charles
Casey,
Planned Parenthood
Brosnan,
ardson, III,
Rich-
S. Elizabeth
833, 874,
2791,
promulgate regulations concerning sani- Architects, ican Institute of which tation, purports housekeeping, maintenance, staff provide to “model standards” for “con- qualifications, emergency equipment and structing and equipping new medical facili- procedures provide emergency care, ty projects” and for “renovation or re- medical records reports, and laboratory, placement work.” procedure rooms, and recovery physical plant, assurance, quality infection con- In addition to consulting established trol, and information and access to sources, the DHEC public conducted hear- patient follow-up care necessary to carry ings, during which it suggestions received out purposes of this section. from the abortion clinics that parties are 44-41-75(B). case, §Id. incorporating some responded DHEC of them in by new promulgating Regulation 61-12, 61-12. Regula- The new effec- tion, tive June entitled See 1996. S.C.Code Ann. “Standards for Licensing (West Clinics,” Regs. (hereinafter Aboi-tion Supp.1998) S.C.Code Ann. Regs. (West “Regulation Supp.1998), 61-12” Regulation”). or “the contains ten parts medical, address a range of safety, In developing Regulation 61-12, requirements: administrative DHEC built on the preexisting version of its I, as well as other Part Requirements “Definitions and DHEC covering Licensure,” different for defines an abortion clinic types of healthcare facilities. The “[a]ny DHEC as facility, hospital other than a ... also consulted various standards which any second trimester or five or guidelines issued medical care or- more per first-trimester abortions month ganizations, including groups 101(B). dedicated to performed.” § Id. It makes protecting rights. These sources operation of an abortion clinic without (1) included: Standards for Obstetric-Gy- 102(A). illegal. license § id. See It (7th necologic ed.1995), Services issued provides periodic for inspections, including the American College Obstetricians and at least one annually, grants inspec- (“the (2) Gynecologists ACOG”); Manual tors authority copy all documents of Medical Standards and Guidelines required in the of inspections. course See requirements. nancy must meet additional 102(F). sanctions it authorizes § And id. § id. 309. with the non-compliance as well as monetary penalties, form IV, and Re- Part “Medical Records denial, revocation suspension, or every clinic requires that ports,” § 103. license. See id. specified years and retain for ten maintain II, Manage- requires of information and categories “Administration Part ment,” facility to formulate treated confidential. every the documents be requires proce- policies §§ clinics must annually its 402. Abortion and review See id. 201(B). per- It requires § all abortions report id. to the DHEC dures. See formed, meeting various administrative fetal deaths certain any maintain each clinic Every criteria, § id. 203. or incidents. on file. See accidents documents in-ser- complete § required id. employee skin undergo a tuberculin training and
vice V, Safety and Mainte- Part “Functional 204(B), (F), any employ- test, § id. see nance,” safety policies written requires disease is contagious with a diagnosed ee disaster-preparedness and a procedures work certain performing prohibited maintenance, plan and sets standards 204(D). It clinic, requires see id. at the kept good requiring that facilities by a every abortion be §§ repair. See 501-503. *5 the State and is licensed physician who VI, “Infection Control and Sanita- Part every clinic be affiliated requires tion,” daily requires certain sterilization admitting privileges who has physician 602, proper §id. mandates procedures, see 205(C). reg- § A hospital. id. a local See goods, linen and washable laundering of supervise nursing all must istered nurse facility § requires and see id. care, may be con- an ultrasound test and insects, neat, clean, free see kept complet- who has only by a person ducted § and waste are re- Garbage 604. id. ultrasonography. See id. course ed a of in a manner de- disposed to be quired (F). 205(D), facility display must § Each disease. prevent transmission of signed specifying patients’ copy of a statement § areas must be id. 605. Outside pri- rights dignity, including the rights, hazards, fire as to minimize maintained so § safety. id. 209. vacy, and rodents, and unsafe for insects and havens Care,” III, provides “Patient Part water, accumulations of conditions pa- written facility must have certain each § ice, 606. and snow. See id. to en- procedures policies tient-care VII, and Preven- “Fire Protection Part that no care and professional and safe sure particular tion,” climes to have requires needs ex- patients whose clinic serve and an evacuation firefighting equipment capabilities. clinic’s resources ceed the inspec- fire drills plan and to conduct drugs § and tools Specified 301. See id. § 701. See id. tions. § labora- id. present, see must be Construction,” VIII, available, “Design either on Part must be tory services have fa- clinic that each abortion requires with a arrangement through or site patient 304(A). the care of each cilities for § A number laboratory, see id. and construction design applicable in- meet performed, must be laboratory tests buildings New §§ 802. laws. See id. testing for sexual- urinalysis cluding satisfy building code re- 304(B), or additions must §id. diseases. See ly transmitted Each §§ (D). quirements. See (C), clinics must at abortion Staff number adequate provide an hospi- facility must privileges at a local admitting have rooms, and procedure for of examination arrangements tal or have documented have a suitable room must procedure each hospital. See id. transfer to a emergency See id. equipment. and other 305(A). table perform facilities that § And (B). meet 807(A), Recovery areas must § preg- the 14th week beyond particular requirements and court there must be found that the additional cost of full a room waste, for temporary storage of compliance for Greenville Women’s Clinic well as an area to accommodate steriliza- would be the range per of $23-$32 procedures. (F). tion 807(E), See id. abortion. IX, Part “Prerequisites for Initial Licen- The Charleston Clinic, Women’s Medical sure,” sets the necessary forth documenta- Inc., operated Charleston, which has obtaining a license from the Carolina, South years, about 28 per- DHEC and the certification that must be forms, 2,400 average, more than abor- acquired for physical various items. per year. tions That clinic operated by Finally, Part X states that conditions physician licensed and a licensed prac- which arise and have not previously been tical nurse. The district court found that addressed must be man- compliance with Regulation 61-12 by aged in accordance with practices the best Charleston Women’s Medical Clinic would as interpreted by the DHEC. cost between per $36 abortion. $75 27, 1996, On June one day Regu- before Lynn, Dr. William who ais licensed effect, lation 61-12 towas take the Green- physician, has conducted practice his since Clinic, ville Women’s the Charleston Wom- 1980 Beaufort, from two locations—in Clinic, Inc., en’s Medical and Dr. William South Carolina (approximately 70 miles Lynn clinics”) (collectively, the “abortion Charleston) Greenville, southwest of and in brought this action seeking a declaratory Lynn Carolina. Dr. performs, on judgment 61-12 is uncon- average, more than 900 abortions each because, stitutional on its face among oth- year at the two sites. He testified that er things, it violate pro- would their due Regulation 61-12 require would him to cess and equal protection rights, as well as costly undertake modifications to his Beau patients. those of their They sought also *6 facility, fort and the district court found an order enjoining enforcement of the per his cost abortion would increase Regulation and requesting attorneys fees by an amount between $116 $368. pursuant and costs to IJ.S.C. The district court also concluded that the The district court issued a temporary re- increased costs for Lynn’s Dr. Beaufort straining 19,1996, which, order on June by facility “likely would Lynn] force [Dr. to consent of the parties, was to a converted performing cease in abortions his Beaufort preliminary injunction. Finally, on Febru- office.” Greenville Women’s Clinic 5, 1999, ary the district court declared the Bryant, (D.S.C. 66 F.Supp.2d Regulation in entirety. invalid its 1999). The Clinic, Greenville Women’s which There was no direct evidence about how operated Greenville, has in Carolina, many other abortion clinics in South Car- since has two licensed physicians olina would be by the Regulation affected perform who a combined average of more or about the extent any such impact. 2,700 than per year. abortions physi- The No woman who an wanted abortion or who cians at the clinic prior testified that even claimed to be threatened Regulation to the promulgation of Regulation party was made a to the action or their operated clinic in compli- substantial court, testified before the district and no ance with its requirements. They estimat- survey evidence of in women South Car- ed that the additional compli- cost of full presented olina was to demonstrate the ance would per abortion. $22.68 The effect that likely Regulation 61-12 would that, district court prior found Reg- have on their decisions obtain an abor- ulation’s promulgation, the cost of abor- tion. tion was between if $325 $480 abortion was complicated not per- and was trial, Following bench the district during formed the first trimester. The court concluded that Regulation tecting seeking ... the health of women abor- state interest legitimate no “serve[s] tions, regulations might if have regu- that the “even such the lack of evidence [g]iven [ejffect causing price the incidental the health operate improve lation will to obtain an abortion to increase.” South in this currently being received care Clinic, Carolina notes that the abortion clinics and Women’s state.” Greenville experts agree appropriate- their as to the that even F.Supp.2d at 735. It continued incorporat- national Regula- ness standards purpose, a valid if it did serve Regulation, ed and the Greenville obstacle “places a substantial Clinic, largest plain- first trimester Women’s path seeking of women tiffs, already admitted that it was sub- and, an undue thereby, imposes compliance virtually stantial with all of the right the woman’s fundamental burden on ar- Regulation’s-requirements. Id. The State procedure.” undergo to choose to found, burden, gues that to the extent clinic does the court result- The undue 61-12, compliance costs, comply delays the abili- ed from increased abortions, improve quality will of medical care decreased availabili- ty to obtain clinics, women abortions. South Carolina increased distances ty of abortion the evidence does not clinics, argues also inspections unlimited to travel to support the conclusion that the increased clinics, patient confi- compromises impose of an would a sub- cost According- id. at 735-36. dentiality. See stantial obstacle for women South Car- ly, the court held olina seeking abortions. Fourteenth Amendment violated women’s id. at 736. process rights. due respond that The abortion clinics Regula- that the district court also ruled Regulation does not further valid state equal pro- clinics’ tion violated the abortion (1) costly interest because it creates scrutiny rights under either strict tection unnecessary requirements which are more of review be- or a rational-basis standard likely protect to harm than to the health of “singles physi- out cause the (2) patients and the DHEC’s per- abortions are cians and clinics where process indicates that the DHEC drafting upon imposes ... and regularly formed protecting the was not concerned with imposed are not requirements them ac- of such women. The clinics health and not even upon comparable procedures that the DHEC have re- knowledge tri- perform who first upon physicians all of nation- guidelines lied on standards and *7 Finally, Id. at 742. mester abortions.” that they argue al but groups, court, 42 acting under U.S.C. district just guide- that —standards and these are 1988, clinics attor- awarded the abortion designed are neither to serve as lines—and $324,- in the amount of neys fees and costs appropriate nor for mandatory directives clinics purpose. Finally, that the abortion event, that, Regulation 61- contend appeals from the district South Carolina an undue burden on women imposes 12 declaring Regulation 61- judgment court’s be- abortions in South Carolina en- enjoining 12 unconstitutional and its price of abor- it would increase the cause attorneys forcement and from the award Lynn perform- Dr. to cease tions and force fees. facility. Beaufort ing abortions his II heavy undertook a The abortion clinics challenge a facial bringing that burden contends first South Carolina Be- constitutionality 61-12. process analysis sup- is district court’s due challenges, nature of facial the record nor the law. cause of the ported by neither the district court they present could not It maintains that circumstance—-a a concrete factual standards with is based on national healthcare controversy which to abortions, pro- particular case or rationally related to is —to 164 invalid Regulation. regulating The clinics there- statute was be
apply
argue
Regulation’s
must
about the
large
fore
cause “in a
cases which
fraction
impact
prospectively,
generally
relevant, it
a
operate
is
will
as
substan
[it]
by leg-
undertaken
type
typically
action
tial obstacle to a woman’s choice to under
islatures, not
Because a trial on a
courts.
895,
go an abortion.” Id. at
165
determine,
Casey
women to
under
reviewed
of other abortion
standard, whether a
fraction
large
... and in the context
would
Supreme Court
acts based on encounter a substantial obstacle to their
challenges
legislative
to
Manning
abortion,
analysis
to
an
grounds.”
constitutional
choice
seek
other
(4th
Hunt,
254,
n. 4
Cir.
simply
permit.
119 F.3d
that
the record
does not
v.
added).
1997)
Thus,
(emphasis
abortion
clinics’ failure to
present
satisfy
evidence that would
either
in
that the observation
While we believe
standards,
possible
we fall back on
part
holding
of the court’s
Manning was
Regulation’s presumptive
constitution-
application of Salerno was neces-
because
ality.
ruling in that case and
sary to the
dictum,
observation that the
we add the
principles
right
The
of the abortion
itself
necessary
is
to
logic of the Salerno test
in
Beginning
are now well-established.
particularly
legislatures,
deference to
show
1973, women were found to have a funda-
imposed by Article
light
in
of the limitation
in
right grounded
mental
the Fourteenth
judiciary
that the
III of the Constitution
pregnancy by
to end a
Amendment
abort-
in cases and controversies. See
act
Wade,
ing the life of the fetus. See Roe v.
Const,
Ill,
explain
art.
2. As we
U.S.
113, 153-56,
705,
410 U.S.
93 S.Ct.
below,
clinics are con-
when the abortion
Roe,
(1973);
see
L.Ed.2d
also Maher
that
requirement
fronted with Salerno’s
464, 474,
97 S.Ct.
under which
no set of circumstances exists
(1977).
L.Ed.2d 484
in Roe
Court
valid,
fail,
they
would be
Regulation 61-12
“right
privacy
...
stated
reason,
impact
if
no
because the
encompass a
enough
broad
to
woman’s
Clinic is so
on the Greenville Women’s
whether or not to terminate her
decision
apply
we
a less defer-
modest. Even when
Roe,
pregnancy.”
410 U.S. at
in
that articulated
ential standard than
Salerno,
in
we nevertheless conclude
provides
ease that the record
no evidence
Roe,
Following
recognized
from which to conclude that
right
the abortion-decision
was not abso-
obsta-
present
61-12 would
a “substantial
subject
lute but
to some
in
“a
fraction” of women
large
cle” to
states,
Supreme
Court decided numer-
might
who
seek an abor-
South Carolina
ap-
in
cases that uncovered difficulties
ous
subject Regulation
tion at a clinic
to
61-12.
widespread
and created
confu-
plying Roe
woman
887-98, 112
Casey,
become a child.” Id.
them. See
505 U.S. at
(majority opinion) (striking
2791
S.Ct.
Carhart,
recently,
Stenberg
v.
Most
provision
physician
a
required
down
U.S.-,
2597, 147
530
120 S.Ct.
L.Ed.2d
an
performing
abortion on a married wom
(2000),
Supreme
reaffirmed
743
Court
an to obtain a statement from her indicat
joint opin-
principles
articulated
husband);
ing that she had notified her
(1)
a
Casey
ion
that:
a woman has
Thornburgh
College
v. American
Obste
“to choose to terminate
right
constitutional
747,
Gynecologists,
tricians and
476 U.S.
viability
before
of the fetus
pregnancy”
her
(1986)
767,
2169,
106 S.Ct.
Accordingly, to the extent if state such health are un regulations interfere with necessary “purpose the woman’s sta- have or effect try tus as the ultimate decisionmaker or presenting substantial obstacle to a abortion,” giv.e the decision to someone other than woman seeking they will be
167
practices
on the
trative
of abortion clinics. As
“impose an undue burden
found to
directed,
Regulation
the DHEC drafted
right.” Id.
61-12, building
existing regulation,
on the
maintaining the distinction between
In
applied
to second-trimester abortion
that
trammel the wom
regulations
state
clinics,
regulations
consulting
to have an abortion—(cid:127)
to choose
right
an’s
from other
The
states.
DHEC also ob-
undue burden —and
impose
that
an
those
incorporated guidelines
tained and
for out-
merely
an incidental effect
that
have
those
patient
published by
facilities
the Ameri-
decision, the Court has
on the woman’s
Architects,
can Institute of
as well as
in Casey,
upheld,
Casey
both before
guidelines
standards and
issued
regulations, the costs and effects
various
ACOG,
Parenthood,
Planned
and the Na-
which,
amounting
while
to interference
Indeed,
tional Abortion Federation.
Reg-
intrusion,
not reach the core of the
did
largely
ulation 61-12
tracks these medical
See,
liberty.
e.g., Casey, 505
protected
guidelines.
standards and
(majority opin
2791
S.Ct.
U.S.
ion)
waiting period
24-hour
al
(upholding
example,
For
the National Abortion
a woman to make
though
require
it would
requires that all medical
Federation
staff
increase the
to a doctor and
two visits
member,facilities
CPR,
proficient
be
protestors);
exposure to abortion
woman’s
plans
specific
and the ACOG recommends
(upholding
id. at
S.Ct.
CPR;
personnel in
training
for
provision that
recordkeeping
reporting
requires
professional
that all
staff
abortions);
the cost of some
would increase
perform
members be certified to
CPR. See
Services,
Reproductive
Health
Webster
204(C).
61-12, §
Ann. Regs.
S.C.Code
490, 530,
109 S.Ct.
Federation
The National Abortion
recom-
(1989) (O’Connor, J., concur
L.Ed.2d
nursing-care providers
mends that
receive
medical tests is
ring) (regulation requiring
orientation;
training
of examina
constitutional where “the cost
facility
that each
and exe-
requires
have
usefully
that
tions and tests
could
program.
a written orientation
cute
... would
prudently be
203(E).
§
The ACOG recommends
id.
all,
if at
increase the cost of an
marginally,
perform
who
abortions
physicians
abortion”); Planned Parenthood v. Ash
provide
prompt emergency
their offices
for
U.S. 476, 490,
croft, 462
hospitalization;
Regula-
treatment
(1983)
(upholding
and be requires testing gonor- the for protect the health of women abor- chlamydia prior and to each abortion explicitly rhea tions and it is one states 304(C). § procedure. id. The ACOG See intended to “serve as a useful resource for and the National Abortion Federation rec- agencies charged local and state with safe- offered; counseling ommend that the guarding public’s be the health.” National Regulation requires arrangements Federation, Abortion Abor- Standards for § The made for consultation. See id. 307. (1998). upon such relying tion Care retaining recommends accurate ACOG standards, appropriately the DHEC was patient medical records for each for the ensuring “per- focused on that abortion is law; period required by the Regula- time by medically competent personnel formed requires tion that such records be retained safety insuring under conditions maximum § The years. for ten See id. ACOG 401. Akron, for the at n. woman.” 462 U.S. specific procedures and plans recommends 12, (quoting 103 S.Ct. Connecticut n forhealth safety; re- Menillo, 96 S.Ct. quires policies procedures written for (1975) curiam)). A (per L.Ed.2d 152 wit- § safety. See id. 501. The recom- ACOG cjinics for ness the abortion testified examining mends that contain room guidelines organizations from such as the sterilization; for facilities ACOG the National Abortion Federa- specific procedures. sets out sterilization “provide tion our best current assessment § See id. 602. The ACOG recommends appropriate as to what is care.” The wit- procedures disposing for of contaminated explained “only ness that the ACOG has supplies; Regulation requires waste interest,” women, one healthcare of specific treatment of refuse and waste dis- if and a doctor “deviate[s] [the ACOG § posal. id. 605. The ACOG recom- guidelines and a standards] without docu- procedures proper mends for use of fire deviation, mented reason for in a [the] equipment, the National Abortion law it court of will be construed as mal- regular emergen- Federation recommends practice.” recognized The witness that the drills; cy Regulation requires firefight- guidelines commonly ACOG’s “are used ing equipment, systems, alarm and fire upon by and relied gyne- obstetricians and § drills. See id. 701. Planned Parenthood cologists nationwide to determine the stan- procedure requires large enough rooms appropriate dard and the level of care for post- gurney, accommodate stretcher or patients,” their and that the National rooms, procedure recovery dressing Abortion Federation standards are “a dis- rooms, and the National Abortion Federa- by tillate of extensive experience highly requires operating tion that the table be experienced provid- skilled and [abortion] dimensions, adequate located in room of ers.” illumination, ventilation; Regula- requires particular physical tion facilities testimony This on behalf of the abortion clinics, procedure such as clinics should itself be sufficient to estab- rooms with doors enough wide to accom- that Regulation reasonably lish 61-12 was wheelchair, recovery modate stretcher or promote designed to South Carolina’s valid rooms, rooms, storage and a dressing interest women’s health. But § room. 807. Planned Parent- support DHEC was also entitled to draw requires battery-operated hood light its use the standards from the obser- emergency backup; Regula- source for Supreme vations made Court requires emergency power and light- abortion cases that the ACOG and Nation- ing. See id. al Abortion Federation standards indicate “general utility” particular of a promulgated by national standards ACOG, groups procedure. Ashcroft, such medical as the n. Federation, 2517; Akron, National Abortion 103 S.Ct. see also 462 U.S. at provisions any because doctor that’s changes tion’s (relying others, standards, among licensed the State of South Carolina in the ACOG completed an hospi- doctor that’s justification lack of demonstrate OB/ *12 residency that successfully v. GYN would do Simopoulos requirement); talization 506, 517, 2532, operation.” in the normal The fact that 103 S.Ct. Virginia, 462 U.S. (1983) professionals agree not all healthcare with (upholding abortion L.Ed.2d 755 76 specific each adoption aspect that their of the noting “[o]n after regulations in face, Regulation light is immaterial of South appear gen- ... to be discretion” in accepted with medical Carolina’s “considerable erally compatible at outpatient adopting licensing requirements aimed second-tri- governing standards seeking from the health of women abortions. (citing publications abortions” mester 516, ACOG)); Simopoulos, also 462 U.S. at including see groups (“In -, in protecting 120 at 2532 view of its interest Stenberg, at S.Ct. 530 U.S. citizens, the health of its the State neces- (discussing the ACOG’s “medical 2612 in deter- appropriateness sarily has considerable discretion opinion” analyzing in “[mjedical procedures”). mining licensing standards for the of medi- treatments facilities”). indisputably repre- cal 61-12 thus attempt to further the a reasonable sents Moreover, contrary to the district patients South Car- health of abortion suggestion, court’s see Greenville Women’s olina. Clinic, 732, F.Supp.2d 66 at there is no argue Regula- requirement reg that that a state refrain from The abortion clinics and, cases, a ulating public- abortion facilities until exceeds some tion 61-12 problem of health manifests itself. Dan- the recommendations conflicts with Further, example, upheld health groups. they forth, as- Court these national just “may helpful” that and “can the recommendations are measures be sert 80, 81, at 96 requir- be useful.” S.Ct. that —recommendations—and gainsaid regula It cannot be that a ing clinics to follow them will not necessar- improve incorporating the health of the recommendations of ily safeguard leading institutional authorities in the patients. The abortion clinics provision field of abortion aims to “further note that some officials of these medi- also woman an mandatory safety seeking com- the health or of a groups support cal do not at Casey, abortion.” pliance with the recommendations. O’Connor, (joint opinion Ken S.Ct. Regulation 61-12 does some While JJ.). Souter, Because nedy, and instances exceed the standards “appearfs] Carolina’s Parenthood,
ACOG,
and the Na-
Planned
accepted
generally compatible' with
Federation, the bulk of the
tional Abortion
...
abor
governing
medical standards
comport
guidelines,
with
provisions
those
tions,”
462 U.S. at
Simopoulos,
any
deviations are not substantial.
reasonably conclude
we cannot
S.Ct.
Any contrary
claim is belied
the abor-
n
at
Regulatio
was not directed
testimony in this case.
tion clinics’ own
Carolina’s valid interest
promoting South
who owns the
One of the doctors
Green-
in a woman’s health.
Clinic,
ville
when asked whether
Women’s
though Regulation 61-12 is direct-
Even
Regulation 61-12 was “consistent
objective
safeguarding
appro-
ed at the valid
you
what
would consider to be the
abortions, it
seeking
practice,”
re-
the health women
priate standards for
“[mjost
if,
objec-
parts
regula- may
serving
be invalid
sponded that
still
do,
tive,
ability
“a woman’s
already comply
unduly
with and
but
it
burdens
tion we
to terminate
practice.” An-
to make
decision”
good
th[e]
it’s
because
874, pregnancy. Casey, 505 U.S.
doctor testified that
other abortion-clinic
O’Connor, Ken-
(joint opinion
Regula-
with a number of the
S.Ct.
complied
he
JJ.).
Souter,
Thus,
how
cost
affect
nedy,
having
de
surmise
increase would
particular
termined that
61-12 serves
woman’s decision to seek an
purpose, we must
still consider
abortion.
valid
imposed
lawfully
whether the cost
accepting
speculative figures
Even
regulation presents “a substantial
directed
court,
upon by
relied
we be-
district
an
obstacle to woman
abortion.”
concluding
lieve the court erred
regula
Id. at
more or less
than the
found to be fundamental.
At Equal its Pro following Casey, L.Ed.2d 484 But tection requires persons Clause that “all conclusion be in doubt. The similarly ... Casey situated be treated alike.” decision does not refer to the abor-
173 providers or abortion have a fundamental as fundamental right tion-derision liberty performing interest traditional strict-scruti apply does See, governmental regulation. free from protects fundamental ny standard Centers, Reizen, Rather, an “un adopted e.g., the Court Birth Control Inc. v. rights. (6th Cir.1984). 352, at Casey, standard. 505 U.S. 743 F.2d 358 More- due burden” over, 874, physicians a a (joint opinion group of O’Con are not sus- S.Ct. Souter, JJ.); nor, pect Kennedy, Attorney see also class. See Gen. New -, 6, v. Soto-Lopez, 120 S.Ct. at York 476 U.S. 906 n. Stenberg, 530 U.S. (1986) Indeed, any regulation that does not L.Ed.2d 899 suspect right (recognizing at the itself’ is classifications to in- [abortion] “strike race, it a by asking alienage, not whether serves clude those based on or assessed interest, compelling origin). Accordingly, state but whether national because we a purpose.” Casey, considering a valid are not that im- “serves (joint opinion pinges right fundamental or that is S.Ct. JJ.) (em Souter, class, O’Connor, Kennedy, suspect directed at we review added). dissenting opinion by The South Carolina 61-12 under phasis Rehnquist Equal by applying characterizes the Protection Clause Chief Justice joint opinion Casey as follows: rational-basis standard determine Regulation’s whether the classification of a funda-
Roe decided that woman had
physicians
perform
who
one second-tri-
joint
right to an abortion. The
mental
abortion or
mester
five or more first-tri-
rejects that view. Roe decided
opinion
per
rationally
mester abortions
month is
subject
that abortion
were
purpose.
a valid governmental
related to
justified
scrutiny” and could be
“strict
only
light
“compelling
in the
State
rationality
distinguishing
be-
opinion rejects
joint
interests.” The
tween abortion services and other medical
that view.
regulating physicians
services when
C.J.,
(Rehnquist,
Id. at
S.Ct.
long
women’s healthcare has
been ac-
dissenting).
knowledged by Supreme
precedent.
Court
itself,
Roe
Beginning
recog-
Court
But
we have concluded in
because
special
nized not
medical interest
Part II that South Carolina’s
*16
of the women
abortions but also
place
61-12 does not
an undue burden on
protecting prenatal
interest
State’s
an
ability
a woman’s
to make
abortion de
150,
life. See
must confront the
that these
month
abortions
is
related to
exist,
procedures
procedures
purpose
protecting
some deem its
the health of
patients.
nothing
recognized
short of
act of violence
When
is
life; and,
in regulating
human
the State interest
is
against
innocent
de-
beliefs,
facilities that are in the business of
pending on one’s
for the life or
those
n potential
abortions,
providing
drawing the
at
line
life
is aborted.
performing
per
those
five
month
abortions
Casey, 505
112
2791
S.Ct.
anyone
say
is rational. While
that it
could
Hams,
(majority opinion). Similarly in
just
is
as rational to draw the line at ten
Supreme
Court noted that it was ra-
per
per
month or three abortions
Congress
tional for
to authorize federal
month,
type
line-drawing
typical-
is
necessities,
reimbursement for medical
but
ly
presumed
function
legislative
and is
medically necessary
abortions:
Murgia,
valid. See
abortion is injury or is directed at procedure V way, it is Thought of in this disease. the district court’s Because we reverse he, like the district understandable uncon- finding Regulation 61-12 judgment court, Car- many find of South might stitutional, district we also reverse the Why unnecessary. olina’s un- attorneys fees made court’s award records, and mini- inspections, keep have to the clin- der 42 U.S.C. only the abor- medical mize the risks longer prevailing The clinics are no ics. protocol is when such a procedure, Boyd, v. Alexander S. parties. See comparable not mandated (4th Cir.1997); Clark F.3d injury and addressing disease? practices Falls, 625, 626-27 890 F.2d Township of deeply divided importance of the But the Cir.1989). (3d morality of abor- debate over societal REVERSED impli- weight of the interests tion and the have an abortion by the decision to
cated HAMILTON, Judge, Circuit Senior humankind As hardly can be overstated. dissenting: living creatures gifted is the most re- procreation of human mystery trial, the six-day bench district After a events, of life’s most awesome
mains one judge is a on this judge, presently who interfer- that the deliberate so it follows court, ninety-four page decision wrote pro- process of human birth ence with the findings factual forth innumerable setting unpredict- questions, unanswerable vokes inexorably legal to the conclu- which lead and, emotions, and unintended social able Annotated Carolina Code sions *18 often, beyond sim- personal consequences both the Due 61-12 violates ones. ply the medical of Equal Protection Clauses Process and and that the United States Constitution array adopting portions of unconstitutional relatively simple medical treat the often from the constitu- not severable seriously than 61-12 are procedures of abortion more majority Cavalierly, the portions. Carolina tional procedures, South other medical (DHEC) today aside thorough sets this and meticu- and Environmental Control by any lous decision rendered our non-hospital facility esteemed in which colleague identifying without find- single five or more first trimester abortions are ing by of fact made him being clearly performed § in a month. 44-41- (West 75(A) To accomplish erroneous. this tour de Supp.1999). legislation This force, majority compelled up to set required regu- also DHEC to promulgate “sanitation, and defeat a lack of concerning evidence straw man. lations housekeep- maintenance, majority, Unlike the I believe the ing, qualifications, exhaus- staff findings tive and detailed factual by emergency equipment procedures made judge amply support, care, the district provide emergency more medical records accurately compel, reports, the decision rendered laboratory, procedure and re- by rooms, him. Because I am in complete agree- covery physical plant, quality as- judge’s holdings surance, control, ment with the district infection and information South Carolina Code Regula- patient Annotated on and access to follow-up care tion 61-12 violates necessary both the Due Process to carry purposes out the of this 44-41-75(B). and Equal § Protection Clauses of the Unit- section.” Id. Pursuant to ed States Constitution and that the uncon- enabling legislation, this promul- DHEC stitutional portions Regulation gated regulation, are entitled “Standards severable por- Climes,” from the Licensing For Abortion constitutional see tions, I dissent. Regs. (Regulation S.C.Code Ann.
61-12), which forth require- sets detailed ments that an comply I abortion clinic1must to obtain and order maintain a presented The constitutional issues perform license to abortions. hotly were par- case contested trial, 27, 1996, ties at with each putting side forth day Regu- On June before support extensive evidence of their re- temporarily effect, lation 61-12 went into spective positions. (GWC) Based on the evidence Greenville Women’s Clinic presented, the district court many Clinic, resolved Charleston Women’s Medical Inc. disputes by factual making (CWMC), detailed find- two medical clinics which offer ings many of fact. Because of the district first trimester abortion services South findings Carolina, (Dr. court’s factual completely ig- are and Dr. Lynn William majority, nored I Lynn), set forth below a physician operates that owns and procedural history practices facts of this medical in Beaufort and Green- ville, case. Carolina, brought this action
against Douglas Bryant (Bryant) as the DHEC, A Commissioner of the Governor- of Carolina, the State of South and the Attor- Prior to the State of South Car- ney General the State of South Carolina olina required licensing physicians’ challenging the constitutionality Regula- offices or other facilities in which second tion 61-12. day, plaintiffs On the same performed. abortions were filed a temporary motion for a restraining 44-41-20(b), -70(b) §§ S.C.Code Ann. order, or, alternative, prelimi- for a (Law.Coop.1995). On January nary injunction. legislature South Carolina Chap- amended ter 41 of Title 44 require 19, 1996, licensing by July On the district court Department South Carolina of Health granted plaintiffs’ tempo- motion for a "[a]ny An clinic is defined as cordingly, facili- definition abortion clinic in- ty, hospital other than a ... in which any physician's cludes office in which five or second trimester or five or more first trimes- per more first trimester abortions month are per ter performed.” month performed. 101(B). Regs. S.C.Code Ann. Ac-
Yll operate enjoined gynecology, own and GWC. restraining order rary performs 61- enforcing average, approximately On defendants GWC 2,746 the issuance of a hearing per year. on first trimester abortions pending court injunction. The district preliminary Charleston, Carolina, Located in South on the of hearing held a issuance never provides gynecological also ser- CWMC because, injunction prior to preliminary vices, including through abortions 12.5 date, parties agreed hearing of pregnancy weeks measured from the injunction pending decision continue the pregnant Imp. average, woman’s On court on the merits. by the district 2,408 performs CWMC first trial, day the dis- Following six bench per year. abortions court, 5, 1999, February held that trict Lynn operates Dr. owns two medi in- constitutionally was Regulation 61-12 Beaufort, practices, cal in one South Car protection process equal due firm on olina, Greenville, in the other Car South See Greenville Women’s Clinic grounds. Dr. Lynn practice olina. is licensed to F.Supp.2d 724-43 Bryant, in medicine South Carolina and is board (D.S.C.1999). court also held The district in and gynecology. certified obstetrics As that, in Carolina law light of both South part practice, Lynn performs Dr. his 61-12, Regula- the text of 13.9 weeks of through pregnancy abortions subject not to the doctrine tion 61-12 was . pregnant Imp measured from the woman’s severability. See id. at 743-44. On performs 13, 1999, average, Lynn On Dr. 407 first court awarded April the district $324,040.61 per year trimester abortions in his Beau costs and at- plaintiffs Attorney fort office and 536 first trimester abortions torneys’ Bryant fees. and the per appeal year both the his Greenville office. General South Carolina court’s decision on the merits and district GWC, All of the abortions awarding attorneys’ costs and the order CWMC, Lynn’s practices and Dr. two ap- The of South fees. Governor Carolina fact, first trimester abortions. there court’s order award- peals the district providers are no abortion South Car- fees.2 ing attorneys’ costs (those perform olina who elective abortions complications) not associated with medical B pregnancy.4 in the second trimester of Carolina, Greenville, Located South services, in- first trimester abor- provides gynecological The most common GWC performed by plaintiffs cluding through procedure fourteen weeks tion abortions procedure. suction pregnancy pregnant curettage measured from the is the period (Imp).3 curettage procedure is also utilized woman’s last menstrual Drs. suction Although Campbell, spontaneous miscarriages. Buffkin Thomas two for Terry risks, wholly undisputed it is physicians practice licensed to South without curettage during and board certified in obstetrics that a suction Carolina Imp. Although weeks after the 2. the Governor of South Carolina ends fourteen 61-12, 103(S). appeals only the district court’s order award- Regs. S.C.Code Ann. fees, attorneys' ing costs and for ease of refer- ence, Bryant, I will refer to the Governor plaintiffs only pro- 4.Because in this case Carolina, Attorney and the General of during vide the first trimester of as defendants. South Carolina challenge Regula- pregnancy, plaintiffs' application to its tion is limited Pregnancy measured either from the date is in South providers of first trimester abortions Imp conception, of a or from woman’s Accordingly, express opinion I no Carolina. generally considered to occur two weeks is constitutionality Regulation as to the eight Imp. Accordingly, after a woman’s per- applied to facilities seek equivalent Imp after the to six weeks weeks second trimester abortions in the future. form conception. Regula- from the date of Under pregnancy first trimester *20 low-up a pregnancy rechecking pa- the first trimester of is safe care consists of performed quick procedure days tient’s hormone levels several after between six and fourteen weeks after a injection, and rechecks thereafter at Imp.5 It dilating woman’s involves the cer- seven-day Although currently intervals. vix, inserting a suction catheter into the in ectopic limited use to the termination of uterus, applying suction to remove the pregnancies, methotrexate and a second Although pa- contents of the uterus. RU-486, drug, currently being are used usually procedure tient is in the room for a protocols research for use in terminating minutes, procedure total of ten itself pregnancies. intrauterine only approximately takes two to five min- utes. It involves no incision and a mini- C mum bleeding. procedure is also general by under anesthesia or Currently, South Carolina does not re- applying a numbing medicine around the quire physicians’ licensing of offices out- procedure, patients cervix. After the usu- side of the abortion context. Further- area, ally recovery walk to the where their more, physicians practice licensed to monitored, pulse pressure and blood are medicine in South Carolina are not sub- they any are checked for abnormal ject regulation, to DHEC but rather are bleeding. complications Possible from the governed by the South Carolina State procedure suction curettage fainting Board of Medical Examiners. vasovagal response, perfor- uterine §§ S.C.Code Ann. 40-47-5 to 40-47-270 ation, infection, bleeding, excessive and re- (West Supp.1999). The State Board of However, tained tissue the uterus. Medical Examiners handles the examina- complication while the total rate for the physicians tion and licensure of within hundred, procedure is about one one Carolina, complaints against physi- complications serious are rare. The rate cians, suspension and revocation of complications requiring hospitalization appropriate, impo- licenses when and the only about one in 2000. And the mortal- penalties sition of civil and other sanc- 100,000, ity rate is one which is about against physicians. tions excep- theWith twenty-five risky carrying times less than building imposed of standard codes pregnancy to term. There is no evi- by particular locales, physicians’ their of- dence in this case that a first trimester subject fices are not mandated de- curettage suction abortion has ever result- sign requirements. and construction No- ined woman’s death South Carolina. tably, clinics, physicians’ unlike abortion Carolina, Physicians in South including perform offices do not five or more Dr. Buffkin and Dr. Campbell, per- also per subject month are not form medical abortions to terminate preg- requirements 61-12. (such nancies located outside the uterus Regulation 61-12 is divided into ten tube) fallopian in the during the first six to I “Parts.” Part 61-12 sets seven pregnancy. weeks of A medical forth general “Require- “Definitions” and procedure abortion is an even safer than ments for Licensure” of abortion clinics. the suction curettage procedure. It in- Part I defines an abortion as use of “[t]he performance volves the aof routine blood instrument, medicine, drug, or other patient’s test to measure the hormone lev- els, followed substance or device with intent termi- injection of a drug (methotrexate) woman, patient’s pregnancy into nate the arm. known to recovery There is no injec- pregnant, time after the for reasons other than to tion, mild vaginal bleeding. birth, Fol- probability increase the of a live By way comparison, according curettage to one of trimester suction abortion is safer plaintiffs' experts testimony having penicillin whose was physi- than shot of in a court, having credited the district a first cian’s office. operation and maintenance of bility for. the child life or health preserve delegated and the estab- abortion clinic is birth, a dead fetus.” to remove *21 or after live 101(A). 61-12, holding person for § lishment of methods Regs. Ann. S.C.Code policies proce- and “[a]ny responsible; personnel clinic as an abortion Part I defines dures, training re- including ... which in-service hospital than a facility, other first im- facility-wide quality or five or more a quirements; trimester any second per- per including month statistical provement program, 101(B). plan imple- § Id. and a written formed.” summaries mentation; procedure policy pa- a and for clinic, an abortion operate In order procedures; and rights grievance tient a license must first obtain the clinic policies maintenance safety functional and 102(A). Prior to the § id. DHEC. See policy procedure and procedures; a and license, clinic the abortion of a issuance policies and and reporting; for incident inspection. pre-licensure undergo must obtaining informed consent procedures for 102(F). initial license § id. Once See 201(B). § In patient. id. from the See obtained, must be clinic the abortion is addition, and policies clinic’s the abortion to obtain re- annually in order inspected provision must include a procedures 102(F), §§ id. the license. See newal of the clinic’s and evaluation of annual review addition, (H). pro- well as procedures, and policies subject is the abortion clinic vides that id. operation. and See management its DHEC, see id. inspections unannounced 102(F)(1), inspec- DHEC during § clinic to requires an abortion Section 203 properties and to all “have access tors policies and on file all current maintain reports, and areas, and objects, records operation of the concerning the procedures photocop- make authority to have the shall clinic, and cre- agreements memoranda in the required those documents ies of documentation, Regu- copy dentialing investigations.” inspections course safety inspec- elevator lation annual 102(F)(2). §Id. ventilation, tions, heating, and and annual reports. inspection air conditioning that an by DHEC
Upon a determination 203(A)-(E). §§ id. statu- “any in violation clinic is relating provision, rule or tory personnel forth detailed 204 sets Section of such or maintenance operation to the clinic. for each abortion requirements suspend, or may deny, DHEC facility,” verify and clinic must obtain The abortion § In addi- Id. the license. revoke in- personal background and professional monetary penal- tion, may DHEC assess id. every employee, see on formation $5,000 id. violation. See up to for each ty 204(A), develop imple- and § and must 103(F). penalty amount of § program for orientation ment a written issue, specific provision upon based members, include orientation new staff as either a preassigned which has been proce- policies and the clinic’s other violation, I I, II, with a Class or III Class 204(E). formal, in-ser- dures, § A see id. See id. the most serious. being violation be must also training program vice employees for all planned provided II concerns the “Administration Part volunteers, kept of at- records clinic. and of the abortion Management” 204(F). § The in-ser- See id. clinic to tendance. requires an abortion Section and volun- employees all training of written vice develop implement detailed specified areas— four must include operation teers procedures for the policies and control, confiden- include, protection, fire infection clinic, at a which must licensing rights, tiality patient minimum, to as- procedures policies job descrip- Written federal, state, regulations. See compliance with all sure an- and reviewed prepared clinic; must be .the tions govern local laws which 204(G), personnel and a § nually, see id. responsi- person to whom of a designation file 205(D). must be § maintained on each employee charge. .Id. Licensed practical and contain employee’s current job nurses employed long so as they description that employee’s reflects the re- supervision work under the and direction sponsibilities assignments, and work docu- 205(E). of a registered § nurse. See id. orientation, employee’s mentation of the may only Ultrasounds be conducted education, appropriate in-service licensure physicians or ultrasound technicians who (if applicable) and tuberculin skin testing, have documented completion evidence of 204(H). see id. Annually, employ- each a training in ultrasonography. course ee or, must have a skin tuberculin test if *22 205(F). § id. Finally, the entire clinical positive, previously x-ray a chest to deter- staff must participate quarterly meet- mine whether present. tuberculosis is See ings to review and analyze experi- clinical 204(B). § id. If diagnosed, tuberculosis is ences, and minutes kept must be and the abortion clinic provide must treatment maintained of each meeting. See id. and investigate employee contacts. See 205(B). § Employees id. and volunteers are also working banned from they if have any Section 209 requires an abortion clinic to wounds, boils, sores, infected acute respi- policies “have written procedures and to infections, ratory contagious or assure the patient individual right to 204(D). disease or § illness. See id. dignity, privacy, safety, and register to addition, all professional and allied health complaints 209(A). § with Id. [DHEC].” care staff members must be certified A copy of patient’s rights must be the American Red or the Cross American conspicuously displayed, and a copy must Heart capable perform- Association as signed by be each patient and included in CPR, ing although only one such certified patient’s medical record. See id. person must patients be they with when 209(B). § undergo the procedure abortion and dur- ing 204(C). Part III of recovery period. § See id. sets forth requirements for “Patient Care.” Addi- Section 205 sets forth requirements for “patient tional policies care proce- and clinic, the clinical staff of an abortion which designed dures professional ensure and encompasses physicians, nurses, all and al- patients” safe care for developed, must be 205(A). professionals. lied health § See id. § include, id. and must but are not may only Abortions be by phy- to, policies limited procedures and for ad- practice sicians licensed to medicine criteria; mission physician and nurse re- South Carolina and who are “properly also sponsibilities; regarding pre- details qualified by training experience and operative procedures (including history perform pregnancy proce- termination and physical examinations, 205(C). special § exami- dures.” See id. The abortion nations, procedures lab and clinic must also obtain consultations and maintain which will be signed, required, and agreements ultrasonogra- written with at least phy procedures); physician one details regarding board certified in the ac- obstetrics procedure tual and abortion gynecology (including admitting privi- who has the use IVs, fluids, leges anesthesia, at a hospital analgesia, local provides which and obstetrical and tissue gynecological disposal); examination and services. details id. All nursing regarding post-procedure care required care recov- and care, under supervision ery room care; of a registered including emergency provisions nurse licensed the State of South education Car- of the patient, olina, regardless others, presence family phy- of a appropriate pre- clinic, in the care; sician post-procedure and the regis- plans for follow- tered nurse care, must be “on duty provide up including arrangements for a supervise all nursing care” during prepara- post-operative specific visit and instruc- tion, procedure, recovery, and dis- tions in the event of an pro- emergency; Papanicolaou performance of a ogy and management referral eedures patient. must be offered to the conditions; (pap) smear procedures for high-risk 304(C). needed; § proce- when patients transfer sanitation control and for infection dures require- provides additional Section anof responsibilities (including duties requires care. It emergency ments for are, in committee control infection consulting physi- staff “[a]ll and/or responsibility turn, charged privileges at one or admitting have cians” pa- specific implementing developing provide appropri- hospitals local more policies to administrative care and tient services or obstetrical/gynecological ate control, prevent infections investigate, arrangements place documented have reg- clinic); procedures for in the for the transfer approved DHEC certifi- death or death of fetal istration hospitalization when be- emergency cases 301(A)-(K). §§ See id. cates. 305(A). necessary. Id. comes 61-12 relates Section equipment must maintain abortion clinic ser- pharmaceutical clinic’s to an emergency resusci- services to render *23 every requires vices. Section procedures pending life-support and tative supply of emergency maintain an clinic to 305(B). § And the abor- id. transfer. See treat, at mini- a and medicines drugs writing, the local notify, clinic must (1) mum, conditions: cardiac following of the location ambulance service (3) attack; (2) seizure; arrest; asthmatic prob- of the medical and the nature clinic (5) reaction; toxicity; (4) narcotic allergic abortions. may result lems (7) (6) shock; vasovagal and hypovolemic 305(C). §id. See 303(A). addition, § In Sec- See id. shock. an abortion clinic to requires Section must the medicines tion 303 mandates specific equipment and purchase maintain a sink that contains in an area prepared “[a] items as supplies, including such and 303(D). §id. See and a counter. recovery,” oxy- for or recliner suitable bed laboratory requires services Section 304 suction, resuscitative mechanical gen, compliance to be in- and emergency medications equipment, mandated already requirements sweep fluids, clock with “[a] travenous Amend- Laboratory Improvement Clinical hand,” suturing equipment sterile second (CLIA-88), 42 U.S.C. ments of 1988 adjustable examination supplies, an and 61-12, Regs. Ann. § 263a.6 See S.C.Code waste contain- linen and light, and soiled 304(A). physi- requires the § It further 306(A)-(I). §§ ers. Id. test pregnancy urine perform a cian to an abortion clinic requires Section (unless or movements heart beats fetal ... for consultation “[ajrrangements make examination), uri- physical identified specialties in the or referral services and glucose includes albumin nalysis which anesthesiology, sur- obstetrics/gynecology, hemoglo- examination, or and a hematocrit pa- clinical psychology, psychiatry, gery, 304(B). addition, § id. bin test. See and clergy, social pathology, and thology to deter- perform test physician must services, indicated as as well patient If the is id. mine Rh factor. See Id. needed.” field, to be available Du variant test an additional positive, Rh § 307. Rh(D) globu- immune id. required. See is Improve- “Quality entitled patient if the Section administered lin must be quali- ment,” plan for a written mandates id. negative. Rh to be See determined patient care for improvement program ty gonorrhea is chlamydia and Testing for responsi- individual of an designation testing syphilis serol- mandatory, while amended, case. relevance see 42 U.S.C.A. 6. CLIA-88 has been 1999). (West no has § This amendment 263a ble for coordinating program. id. must be stored for a minimum of ten 308(A). § Specific requirements include years. § See id. ongoing monitoring and “pa- evaluation of Section 403 requires preparation services, tient care staffing, pre- infection reports, additional including a record of control, vention and housekeeping, sanita- every accident or occurring incident in the tion, safety, physical plant maintenance of abortion clinic which patients, involves equipment, statistics, patient care staff, 403(B). or § visitors. See id. If it discharge planning services.” Id. results in injury, serious the accident or 308(B). § patient Evaluation of care is incident must be self-reported to DHEC. required “criteria-based, to be so that cer- injuries “include, Serious but are tain actions are taken or triggered when to,” limited accidents and incidents specific quantified, predetermined levels of (other hospitalization lead to or death potential problems outcomes are identi- fetus) than of a drug adverse reac- 308(C). §
fied.” Id. process must Id. tions. incorporate a quarterly of mini- review a percent mum of five of the medical records Part V entitled per quarter, but not than less five records Safety Maintenance,” “Functional re- per quarter reviewed, shall be see id. quires policies additional procedures, 308(D), § and must include a means of including, to, but not safety limited rules obtaining input from patients families if practices personnel, equipment, they are “involved in the care and services gases, liquids, drugs, supplies, and ser- provided 308(E). facility.” Id. vices; provisions for investigating acci- *24 The abortion clinic must re- administrator premises; dents on the provisions for dis- view findings program and en- seminating safety-related information to sure corrective actions are taken. See id. employees clinic; and users of abortion 308(F). § program must identify also provisions syringe for and needle handling and care, establish indicators of quality and storage; provisions and for managing specific clinic, to the abortion that must be infectious waste in accordance with anoth- monitored and evaluated. id. er DHEC already governing 308(G). § Annual review of the results is 501(A)-(B). §§ such matters. See id. In required. 308(H). § also See id. addition, the abortion clinic prepare must Part IV Regulation of forth sets post and preparedness disaster plan for requirements for “Medical Records and evacuation the event of a fire or other Reports.” 401 begins by Section setting 502(A). emergency. § See id. All parts forth requirements detailed the prepa- for portions and of the abortion clinic are ge- ration and records, maintenance of medical nerically required to kept “in good be re- include, minimum, must at a twenty pair condition,” and operating and “free of categories of § information. See id. 401. 503(A). § addition, hazards.” Id. “[a]ll Section requires a face sheet with wooden surfaces shall be sealed with a patient data, identification including but non-lead paint, varnish, based lacquer, or to, not patient’s name, address, limited shellac that will allow sanitization.” Id. A telephone number, number, social security preventive written program maintenance birth, date of the father and mother’s be developed must implemented and for if patient minor, name is a the hus- patient monitoring equipment and tested name, name, band’s address, and the and in accordance with specifi- manufacturer’s telephone person number of a to be noti- cations, but not annually. less than See id. fied the event of an emergency. See id. 503(B). § Records of maintenance and 401(A)(1). § The records required testing kept. must be See id. kept be by confidential the abortion clinic (although requirement no such imposed of Regulation Part VI 61-12 is entitled upon inspectors them) DHEC who obtain “Infection Control and Sanitation.” Part required in toi- equipment and design be procedures and policies requires VI air rooms, the direction regulates let and safe writing to assure established rooms, man- within the sterilization flow of all protection and treatment aseptic doors cor- width for and dates minimum cross-in- personnel against and patients for ridors, specific requirements forth 601(A). sets VI also Part § id. fection. (the unit must conditioning air heating and steri- for requirements specific forth sets temperature maintaining capable of the au- be testing of lization, daily including seventy-six de- seventy-two and results, well between as as log and toclave clinic’s air the abortion regulates grees), preventative calibration periodic exhaust, design crite- regulates supply not but less necessary, as maintenance entrances, forth sets 602(B)-(C). abortion clinic ria for §§ id. annually. See than janitor’s clos- for the specific requirements also re- Regulation part This ma- ets, specifies glazing corridor kept clinic “be abortion that quires bases, finishes, terials, and interi- wall odors,” wall id. clean, neat, and free from present. must be that finish materials requirements 604(A), specific § mandates 807(A)-(Y). §§ pro- See id. used be cleaning methods for requirements others, imposes hibits forth 61-12 sets Part IX id. disposal, see waste for refuse for Initial Licen- “Prerequisites additional requires 604(A)-(C), Section 605. §§ clinic, plan including sure” areas, grounds and/or outside “[a]ll that DHEC, and approval and construction kept free be buildings shall adjacent be required to documentation specifies the serve rubbish, and weeds grass, clinic’s initial submitted insects, or as a haven a fire hazard as Part licensure. See application all pests,” rodents 61-12, IX(A)-(B). X of Part stairs, ramps and “[ojutside walkways, entirety “General,” in its states entitled free from ac- be maintained shall porches “[cjonditions arising have snow, ice, water, and oth- cumulations shall in these been addressed Id. impediments.” er best with the' in accordance managed Depart- interpreted practices entitled Part VII of *25 Prevention,” Id. Part X. ment.” provides and Protection “Fire firefighting for requirements detailed D an evacuation systems, and equipment 1995, the State earlier, in the evacua- to employees prior As training noted plan, licensing only least mandatory required fire drills Carolina plan, of South months, maintenance other facilities or every offices physicians’ three once were of rec- abortions maintenance and equipment, fire which second provi- §§ 44-41- Ann. compliance with S.C. proving performed. ords Effective, -70(b) 20(b), (Law.Co-op.1995). §§ 701-03. sions. See 41 of Title January Chapter sets forth Regulation 61-12 Part VIII of as follows: was amended “Design for requirements detailed tri- (A) any second facility A in which There of abortion clinics. Construction” first trimes- more five or or mester (unlike other provision grandfathering no in a are ter medical and governing regulations DHEC by [DHEC] must be licensed month facilities) rather, all abortion care patient — abortion clinic as an operate to within compliance in full must be clinics provisions comply with . must require- § The See id. years. two Right Woman’s [the Article 3 detail, rendering forth ments set Act]. Know note, Of unproductive. them summary of promulgate (B) shall department and size of the number governs Part VIII sanitation, concerning rooms, specifies recovery procedure maintenance, housekeeping, staff tween first and second trimester abor- qualifications, tion, emergency equipment and conducted no meaningful inquiry and procedures provide emergen- into what regulatory requirements were care, cy medical records and re- appropriate for performing facilities ports, laboratory, procedure and re- first trimester abortions. rooms, covery physical plant, quality Samuels, Like Moore has some edu- assurance, control, infection in- experience cation and with hospital admin- formation on and patient access to istration, but has received no formal medi- follow-up necessary care carry training cal or education. After receiving purposes out the of this section. an undergraduate degree, joined Moore (West Id. 44-41-75 Supp.1999). Pursu- the United Army States he where served ant to this enabling legislation, pro- DHEC twenty-five years. spent He early
mulgated Regulation 61-12. part of his adjutant service in the general corps performing general After legislation administrative requiring licensure duties, after which time he passed, abortion clinics transferred to was Alan Samu- (Samuels) the medical corps els services per- he DHEC where charged was with formed administrative the responsibility duties associated supervising for the draft- with health care facilities ing hospitals. promulgation of Regulation 61-12. service, During his Moore Although received a mas- Samuels experience has some degree ter’s hospital administration, administration. health care he received has Upon his retirement from military no service formal medical training or education. began employment Moore with Upon completion education, of his college DHEC, inspecting hospitals and nursing Samuels served in the United Army States compliance homes for with existing regula- twenty-four years, where he served He promoted tions. was later to Director adjutant with the general corps and the Outpatient and Home Care within the corps personnel services as a offi- Division of Health Licensing, position cer hospital inspector. leaving After he held when Samuels asked him to as- service, military Samuels began employ- sume primary responsibility for the draft- DHEC, ment with where his duties con- ing of Regulation 61-12. sisted of inspecting various types of health care facilities compliance existing In preparation for drafting regulations. He eventually was promoted however, Moore took meaningful no position to the of director of steps DHEC’s himself educate about first trimes- Division, Health Licensing abortions, now is re- ter how they differed from sec- tired. abortions, ond trimester require- what *26 ments would appropriate be for a facility Although provided Samuels some input which only first trimester abor- and during edits process, the drafting he tions. did personally not draft any portions of Regulation Rather, 61-12. he delegated For assistance with Parts VII and VIII the primary drafting responsibility to 61-12, of Regulation Moore turned to Wil- George (Moore), Moore who the Di- was Lafferty liam (Lafferty), who was the Di- rector of Outpatient and Home with- Care rector of Health Facilities Construction in DHEC’s Division of Health Licensing. with DHEC. Like Moore, Samuels and that, Samuels testified Regulation when Lafferty has received no formal medical 61-12 was promulgated, he knew very lit- training or education. In drafting these tle procedures about abortion portions the differ- regulations, of the Lafferty made ences between first trimester second and no effort to determine whether the re- trimester abortions. The quirements record reflects medically were appropriate for that Samuels conducted no meaningful facilities performing only first study or research into the differences be- Lafferty abortions. also approached the the basis for draft- regulations as from Carolina requirements and construction design is evidence there Regulation ing re- construction of new standpoint con- the DHEC officials record existing the anticipated that and quirements First, of reference. points other The de- sulted grandfathered. be would facilities regula- copies of abortion obtained Moore mandatory two-year to include cision Tennessee, and North Carolina tions from portion of in that provision compliance speak anyone he did not though grandfather of a instead or how regulations states about those Lafferty. by made was not provision maternal health. Sec- had affected they Moore, preexisting to According ond, guide- standards and Moore reviewed sec- governing Carolina Planned issued Parenthood lines as a utilized abortions was ond trimester (Planned America, Par- Inc. of Federation and regulation, for the new starting point Federa- enthood), Abortion the National Regu- provisions the additional many of (NAF), College American and the de- adopted or simply were lation 61-12 (ACOG). Gynecologists and Obstetricians governing regulations DHEC rived from published guidelines and The standards They care facilities. of health types Parenthood, NAF, and ACOG are Planned ambulatory governing regulations included care can which mandated standards not facilities, centers, dialysis renal surgical physi- imposed on licensed or should facilities, day care community residential Rather, they guidelines cians. adults, facili- outpatient facilities for care for the regard with due followed should be persons, dependent chemically ties treating physician judgment medical mentally retard- centers for habitation patients special needs chil- ed, facilities treatment residential they serve. homes, adolescents, nursing dren general drafting process, the During the care home health providing facilities to DHEC wrote a letter counsel ACOG the DHEC According to hospice services. requirements that the concern expressing its officials, sought to standardize DHEC enhance 61-12 would facilities medical governing regulations offering safety well-being or patient licensing re- that the so medical care in the of ACOG the assistance wording, DHEC have consistent would quirements The regulation. drafting appropriate prac- departmental codify existing and to assis- officials, declined ACOG’s drafters DHEC the DHEC According to tices. tance. its attempt standardize included practices codify existing 61- draft of After an initial inspectors its grant desire DHEC’s limit- requested completed, Moore was in all medical records copy authority two medical input and comments ed Moore, de- According to facilities. with DHEC. associated personnel currently allows the practice partmental (Dr. first, Good- Goodrich Dr. Richard during a com- records copying of medical certi- rich), physician, board is a licensed Moreover, tes- Moore investigation. plaint who gynecology, in obstetrics fied the con- maintain that DHEC would tified Zanesville, he re- until Ohio practiced though fidentiality of the records even retirement, moved to he his After tired. *27 Regulation in provision no there is a consultant became Carolina South confidentiality.7 such that mandates of maternal area DHEC with practice, medical During his health. testified child DHEC officials Although the only however, performed Dr. Goodrich existing utilized primarily they 1001(E) records (providing that governing Interestingly, DHEC's by sub- premises specif- only from ambulatory surgical centers be removed contains order). confidentiality protecting the provision or court poena ic Regs. Ann. See S.C.Code records. medical abortions, two both of which were due to ence with providing nursing care for first complications. Furthermore, medical Dr. and second trimester abortions Goodrich was not asked to and did not in a military hospital. After retiring from any portion draft of Regulation 61-12. Army Lawyer began working Rather, only he was asked to review dis- with He currently DHEC. is nurse manag- portions crete of the regulation dealing er with the Division of Health Licensing, exclusively with medical events and medi- where his primary duty is the inspection of cal testing, and he conducted no review of various care health compliance facilities for provided input no on the majority of with existing regulations. He too was regulatory requirements. Although asked Moore and Samuels to review he opinion is of the portions that the provide input concerning por- discrete Regulation 61-12 that he reviewed are ap- Regulation 61-12, tions of primarily those propriate care, medical standards of he governing nursing Lawyer care. is of the testified same standards would be opinion that, abortions, for first trimester appropriate for physicians’ offices in registered nurse should personally either which comparable obstetrical and gyneco- patient monitor supervise patient all logical surgical procedures performed. care, the physician present unless in the Dr. Goodrich further testified that he did abortion clinic and available come to the not recommend Regulation 61-12’s re- recovery room if necessary. Unlike Dr. quirement physician qualifications be- Goodrich, however, interprets he Regula- yond licensure, state and acknowledged requiring as the “on duty” reg- that he did know required how the istered nurse to premises. be on the “training experience” qualifications opinion, his formulating Lawyer did not could be determined the regulation. under conduct any research practices on abortion Dr. also interpreted Goodrich Regulation Carolina, in South nor did he consult with 61-12’s requirement that a registered nursing professionals specialize who nurse be duty” “on as requiring that a abortion procedures. Lawyer testified registered nurse have responsi- ultimate that while he is aware that 61- bility, and not that a registered nurse 12 would apply to facilities performing should or needs to be premises on the abortions, medical he has no knowl- all times. Dr. Goodrich further testified edge of what nursing are required skills that, while he specific has no experience the context of medical abortions or wheth- with abortions, it would not be his they er would require a registered nurse intent provision cover the of medical opposed to a practical licensed nurse. abortions under the regulation. He ac- however, knowledged, the regulation With exception of these limited con- as drafted would fact cover such abor- sultations with medical personnel associat- tions. Finally, Dr. Goodrich testified that DHEC, ed with the drafters of Regulation he is problem aware no existing 61-12 did not seek any input from medical providers in South Carolina and professionals during the drafting process opinion has no as to how cost and rejected ACOG’s offer assistance. availability of abortions affect women’s As some support for the text of health issues. 61-12, the defendants contend that Moore sought also some drafters input limited conducted an inspection of Lawyer, Robert R.N. (Lawyer), Planned Parenthood’s who abortion clinic in was Columbia, Director of Nursing for DHEC. Law- South Carolina and determined yer his received bachelor of science that the degree clinic met great majority of in nursing while in the United requirements. States 61-12’s The evi- Army, and later received a masters degree dence court, credited 'the district how- in health management ever, services and busi- reveals the drafters simply *28 ness administration. He experi- has some and, toured the clinic during visit, one such per- to be procedure require Par- would Planned to a briefly spoken have center or ambulatory surgical in an evidence formed is no There physician. enthood are also quick abortions hospital. to comment Medical was asked physician that safely per- that can be or procedures requirements medical regulatory upon the outpatient or necessary for office medically physician’s in a they were formed whether Clinic, Moreover, there Women’s Greenville clinic. See abortions. trimester first support a to F.Supp.2d in the at 718. record evidence no meaning- DHEC received that finding found that Second, court district physi- Parenthood Planned input ful provide and clinics offices physicians’ stages of early during the to or prior cians per abortions trimester than five first less drafting process. procedures identical perform month was process drafting initial After the tri- more first five provide which those proposed regu- concluded, issued DHEC month, the risk and per abortions mester as hearings mandat- public held lation and pro- the abortion patient undergoing of the Some law. Carolina by South ed See id. is identical. cedure com- public during made suggestions first found that Third, court the district changes Regula- in resulted period ment are curettage abortions trimester suction suggestions including some tion duration, risks, of in terms comparable Parenthood by Planned made variety obstetrical to a invasiveness this case. in plaintiffs procedures which surgical gynecological DHEC submitted January On of- in physicians’ performed frequently are Carolina to the South in- These would in Carolina. South fices required approval legislature per- procedures curettage suction clude legisla- Because law. Carolina South experienced have who formed women action on took no ture abortion, dila- spontaneous incomplete submission, it after its days within 120 endometrial curettage procedures, upon publi- automatically effective became and insertion hysteroseopies, biopsies, on June Register in the State cation control. for birth devices intrauterine found Fourth, court district E abortions curettage suction first trimester trial, presented at on the evidence Based risks, du- in terms comparable also are findings detailed court made the district variety to a ration, and invasiveness prob- and its concerning Regulation 61-12 pro- surgical non-obstetrical/gynecological women health of on the effect able performed frequently cedures a first Carolina, obtaining the cost South Carolina. in South offices physicians’ Carolina,, and in South trimester abortion of subcu- the removal include would These first trimes- obtaining a availability for minor breast cysts, lipomas and taneous First, Carolina. South ter implanted removal and the biopsies, record, the in the evidence on the based in- have been ports catheters the first found that court district neck in the veins large into serted is one curettage suction administering for use region collarbone per- that can procedures surgical safest See id. dialysis. chemotherapy and approximate- lasts procedure formed. The found that Fifth, court the district overall minutes has a low five ly two to experiencing currently is not Carolina abor- curettage rate. Suction complication the provi- related problem public health currently being, safe- be, and are can tions licensed first trimester out- sion offices physicians’ ly experiencing the state was physicians, nor patient clinics, except where patient Regulation 61-12 when problem such conditions particular has *29 was promulgated. The district court their assistance during drafting pro- found no plaintiffs evidence that the cess, any or the district court found ACOG is providers abortion in South Carolina unanimously considered to be a well-re- are providing inadequate care to women spected organization medical dedicated to seeking abortions or that the of rate com- improving the standard of health care in plications from in the field of obstetrics and gynecology. greater Carolina is than the national See id. According court, to the district average. On the contrary, the district rejection DHEC’s of ACOG’s assistance court found that South Carolina expe- has further demonstrated DHEC’s lack of in- similar, rienced a lower, if not average terest ensuring that Regulation 61-12 complication rate. See id. at 718-19. actually met proffered goal promot- of ing maternal health and is consistent with Sixth, the district that, court found al- testimony DHEC witnesses that though the principal draftsmen Regula- such a goal was not their primary motiva- tion 61-12 have expertise some hospital tion during drafting process. See id. administration, care health they have no training or provision education in the Eighth, that, the district court found hands-on medical care and knowledge little although it is uncontroverted first tri- of the medical needs of women mester abortions are significantly less first trimester abortions in South Carolina. risky to the health of women than second See id. at 719. The district court abortions, found trimester an existing South Car- they engaged in research, virtually no olina regulation governing second trimes- investigation, or other efforts to determine ter abortions was utilized as a starting what types requirements point would nec- for Regulation 61-12. With the ex- essary or advisable for the proce- ception of Section 309 of dure, or types what requirements would which specifically pertains to second tri- further or hinder the state’s interest abortions,8 mester the DHEC drafters health. maternal Nor did DHEC officials drew no distinction between first and sec- possess or seek information concerning the ond trimester abortions in the text of the present safety of first trimester abortions regulation. addition, the DHEC draft- or the relative risks associated with the ers admitted virtually no such distinc- procedure. See id. tions were considered during the drafting process. See id.
Seventh, the district that, court found despite their admitted lack of Ninth, that, district court found in- knowledge in general and of pro- stead of attempting to tailor Regulation particular, cedures in the drafters Reg- particularized to the medical needs ulation 61-12 sought only input minimal of women seeking first trimester abortion and assistance from knowledgeable medi- Carolina, services in South goal DHEC’s cal experts during the drafting process, during the drafting process was to stan- choosing rely solely upon the limited dardize its health care and facility regula- review and advice Dr. Goodrich and tions and to codify existing departmental Lawyer as to portions discrete of the reg- practices. See id. at According 719-20. ulation. Furthermore, See id. ei- court, DHEC the district to the extent this was rejected ther ignored done, offer by ACOG it was done without meaningful to assist in the drafting process. Al- inquiry or assessment as to whether though DHEC was under no legal obli- requirements would further the in- state’s gation consult with ACOG or accept terest maternal health and without as- 8. Section 309 mandates qualifica- additional must be administered for second trimester tions which the performing physician must abortions. See Regs. 61-12, S.C.Code Ann. possess, equipment additional which must be 309(A)-(D). §§ hand, and additional medical tests which *30 signifi- 61-12 will Regulation that found abortions trimester first sessing whether ser- of abortion the cantly increase cost per- -procedures the comparable to were id. The See Carolina. in South by vices regulated facilities the in formed in this increase found that court district The district court at 720. id. See DHEC. delay a will of abortion services cost first the provide that that found clinics further from obtain- women of number significant that services provide abortions trimester eases, and, in some re- procedure invasive, the ing risky, less significantly are proce- the obtain inability to in their in ambu- sult offered the services lengthy than further court id. district dure. See centers, many of yet surgical latory advances, the that, pregnancy aas as found 61-12 are Regulation of requirements in- with abortion associated risks medical more respects strin- in some stringent, pregnancy crease, a full term ambulatory upon imposed those than gent, physi- risky much more is childbirth id. See surgical centers.9 than a first trimes- a woman of cal health that found court Tenth, the district id. See ter abortion. Parenthood, NAF, and ACOG Planned that Twelfth, court found district upon relied guidelines standards myriad of contained 61-12 by Regulation recommendations are by DHEC part that were costly provisions detailed organizations respective and, thus, were nei- unnecessary medically standards as mandated fairly characterized the health of to further designed imposed ther be should can or care which of abortions first trimester women re- regulatory physicians licensed upon goal. this For accomplish likely to nor Rather, guidelines they are quirements. Regula- I Part of respect to example, with due regard followed be which should 61-12, observed that court the district treating of judgment medical for the included an “abortion” of its definition needs special and the physicians termi- currently used to abortions the medical some of if they Even serve. patients at 721. id. See isolation, ectopic pregnancies. could, nate existing guidelines record, However, the evidence all of the dis- regulation, matters appropriate Goodrich, Dr. testimony of including the Regulation that found trict court strin- 61-12’s Regulation that suggested ex- greatly which requirements imposes medically unnec- requirements were gent id. See ceed the guidelines. clinic physician or essary that, found Eleventh, court the district abortions. only medical performed requirements imposing detailed II, district to Part respect also With 61-12, drafters the DHEC Regulation this portion found court steps to eval- meaningful to take failed unnecessary re- permeated with is impact or its compliance costs of uate qualifica- physician governing quirements services availability of abortion upon the id. training. See tions, staff staffing, and upon the id. Based Carolina. Regula- court observed The district district court presented, evidence in Section requirements patient fact, recognizes that additional Regulation 61-12 61-12, requires addi- surgi- complications of potential the risks equip- qualifications, physician tional ambu- performed in typically procedures cal ment, laboratory tests. See mandatory higher significantly surgical centers are latory eighteen weeks 302(B). beyond Abortions § with first associated those than pregnant from the 61-12, measured pregnancy licensed Under abortions. hospi- performed in Imp must be performing woman's are restricted clinics ambulatory surgical tal, although a licensed pregnan- eighteen through weeks abortions as an abortion is also licensed Imp. center pregnant woman's from the cy measured patients perform abortions 302(A). clinic Regs. S.C.Code Ann. mea- pregnancy twenty-six weeks through beyond performing clinics Abortion Imp. See pregnant woman's from sured pregnancy measured weeks fourteen 302(A). §id. Imp meet the must pregnant woman's tion 61-12 requires physicians and clinics perform, according to witnesses, all of the registered hire a supervise nurse to all one of the safest surgical procedures that nursing care in the abortion clinic regard- in this country, and DHEC less of the fact that a physician licensed is did not any justification offer for arbitrari- present in the clinic supervise all medi- ly imposing requirement. See id. care, cal including nursing care. See id. *31 With respect III, to Part the district The district court found that it is within court found that level the of policies and accepted medical practice, both within the procedures required by part, this as well abortion context and in physicians’ offices as the extensive in-service training re- performing comparable surgical proce- quirements and policies required dures, for a physician to hire prac- licensed II, Part are costly (who endeavors unsubstanti- tical nurses command a lower salary ated by a medical need. See id. than registered nurses) long so they as act district court observed that such require- under the supervision of the attending ments bemay appropriate for physician. large medi- See id. The district court cal care with facilities large found that the staffs that do defendants per- offered no not daily interact on a suasive reason basis. why physician a See id. could not However, supervise according the to nursing court, the patients care of district dur- ing the recovery process arbitrarily imposes simply because upon physician every clinic be in and every physician’s another room for a period brief office performs of time. See id. five or more making first trimester finding, the per district court recognized regardless month — that even DHEC’s own number of consultant, medical staff opera- hours of Goodrich, Dr. tion. opined See that a id. registered nurse need not be on premises to The district court also found that it was supervise only that the nurse have care— medically unnecessary to have every wom- overall supervisory duties. See id. (and for) an undergo pay testing for cer- Also with respect II, to Part the district tain sexually (but transmitted diseases not court found that Part requirement IPs others), without regard to whether such that all abortion clinic health person- care tests are medically indicated and indeed nel receive tuberculin testing skin is medi- even when the physician determines that cally unnecessary in view of the fact that they not, are simply because the woman DHEC has not required such testing of all has chosen to obtain a first trimester abor- personnel health care and did not offer tion from physician performs who them justification for arbitrarily requiring this on a regular basis.10 See id. The district testing of all workers, abortion care but court further found that Section 307’s re- not all other health care workers. See id. quirement that abortion providers have at 722. “consulting” arrangements with various The district court specialists also found Regu- that before can they obtain a license lation 61-12’s requirement operate that to all allied is medically unnecessary and personnel health care unduly in abortion clinics burdensome because no evidence receive CPR training, opposed having presented to was relating to why licensed one qualified person at the at all physicians clinic are capable not of exercising times, was medically unnecessary in view appropriate discretion in recognizing and fact this requirement is im- acting upon the medical needs their posed solely upon providers who patients in this regard. See id. at 722-23. note, 10. Of the district court found that ing abortions or that present abortion clinics presented defendants insufficient evidence to public problem health regard. in this See support a finding sexually Clinic, transmitted Greenville Women's 66 F.Supp.2d at prevalent diseases are more in woman seek- 733 n. 16. example, dis necessity. For III, dis- Part respect Also supporting evidence found trict court no found trict court install addi clinic to an abortion con- need for requirements imposes inexplicably emergency equipment drugs which tional bathroom emergency cerning access recovery area it have a or that physi- call buttons any other upon imposed See area. id. procedure separate court The district id. at cians. found supplies court further 724. The district equipment found also presented in- evidence was also credible 61-12 will that no required should be physicians demonstrating that providing abortions costs crease the un- and corri their doors Carolina, equipment to widen require required to accommodate performance a width sufficient necessary for safe dors person procedure. stretcher an ambulance both first cardiopulmo perform walking alongside IV, district to Part respect With *32 resuscitation, given the particularly nary part of that this found court trimester testimony that a first unanimous ex- troubling. For particularly 61-12 was with relatively procedure a safe abortion that the court found district ample, the The id. complications. See infrequent seeking an woman that a requirement this that no evidence court found district spouse in the name of her provide abortion perfor the from ever arisen need had med- is a contact emergency an to addition abortion in trimester a first mance im- which requirement unnecessary ically Fi id. See or elsewhere. Carolina South path in the obstacle poses substantial phy that observed court nally, district the reasons, may who, personal for a woman procedures surgical performing sicians See this information. disclose wish to not risk are not and invasiveness comparable that, found also court The district id. to meet their- offices to renovate required required was clinic the abortion although id. See requirement. similar confidential, noth- records keep patient to publicizing DHEC prohibited ing IX, district Part respect to With pursu- obtained them once it these records part of court found id. at inspection. ant to an and certifications numerous required concerning various laboratory test results VIII, district respect Part With (such as the clinic the abortion parts of part Regulation that this court observed any evi- draperies) without carpets de and detailed extensive imposed would requirements these dence requirements construction sign and women’s protecting goal of further facilities, build far1exceed which abortion id. Carolina. health in to other applicable requirements code ing offices, those including physicians’ X, the district Part respect With proce comparable identical perform with that, conjunction observed court court The district at 723. id. dures. See 103(C), DHEC grants XPart Section requirements, these extensive found abortion “manage[ ]” power to unfettered hospital or appropriate perhaps while the best with “in accordance providers center, are not ambulatory surgical large Depart- by the interpreted as practices medical benefits to expected justified X, 61-12, Part Regs. ment,” Ann. S.C.Code safe, relatively undergoing the women a Class III with providers cite and to abortion curettage suction first if DHEC observes penalty violation clinic. See or office physician’s in a small the best “against to be deemed condition id. Depart- interpreted practices 103(C). court ment,” district VIII, the dis to Part respect Also with abortion imposed upon Part X found that require additional found that court trict of deter- burden additional providers unique to ments, advanced as were standards or complying mining field, justification no had medical practices specified (3) in the regulation, For Lynn’s Dr. practice, Beaufort but which DHEC future find cost will increase between $367.50; $115.67 “best” for an abortion clinic. See (4) GWC, Clinic, Greenville For Women’s F.Supp.2d cost will increase be- tween at 724. $22.68 $32.39.12 See id. The district court found that the Finally, the district court found that a substantial alterations that Dr. Lynn first trimester suction curettage abortion would have to undertake to bring his in South currently Carolina costs between practice Beaufort in compliance with Reg- $480, depending $325 on the gestation- ulation 61-12 likely will force him to close al age, the type of sedation anesthesia practice, his thereby eliminating the avail- needed, and the testing indicated. ability of abortions this area of South 717., See id. at The district court further Carolina.13 See id. The district court also found that Regulation 61-12 would raise found that the increased of providing cost the cost of each by the the closure of the only and/or plaintiffs in following ranges:11 abortion clinic in one area of a state result- ing from Regulation 61-12 will prevent a
(1) CWMC, For the cost will increase significant number of women from obtain- $75.03; between $36.48 ing or, minimum, at a delay (2) Lynn’s For Dr. practice, Greenville them from abortion, obtaining the both of *33 the cost will increase between $93.09 which carry increased risks to the health $170.39; and of women.14 id. at See 718. The district 11. figure represents The lowest ing $2,700, the defen- approximately that Lynn's Dr. dants’ revision of plaintiffs’ the estimates of Beaufort office would need renovations cost- complying Regulation with 61-12. high- ing $12,256, approximately and that GWC figure represents est plaintiffs' the estimate. would need costing approximate- renovations The district court observed figure, $3,700. that neither ly however, takes into account the standard 15% profit plaintiffs' factor which the accountant 14.The district court's finding regard in this testified would be appropriate. See Greenville premised was testimony plain- Clinic, F.Supp.2d Women's at 717 n. 10. expert, Henshaw, tiffs’ Stanley Dr. who is currently deputy director of research at the trial, 12. At parties entered into several York, Alan Guttmacher Institute in New stipulations notable concerning the cost of where he relating conducts studies to family complying specific with provisions certain planning and abortion services. Dr. Hen- Regulation 61-12: shaw testified that an price in the increase procedures prevents a number (1) directly billing physicians, When labo- women obtaining from and abortions causes in ratories charge South Carolina generally other delay women to their abortions until $20 per $40 between and sam- along further pregnancies. into their Dr. ple perform to a combined test for chla- Henshaw also testified relatively that small mydia gonorrhea. and in increases the cost of an abortion will (2) have directly billing When physicians, labo- effect, and that an just increase $25 ratories in South generally Carolina expected can be prevent to one or two out of charge $17 per $30 between and sam- every 100 low-income seeking women an ple to lest for the Du variant. being abortion from (3) able to obtain one. Dr. directly When billing physicians, labo- Henshaw also testified that a decrease in the ratories in charge South Carolina be- providers number of abortion in $7 South Car- per $20 tween and sample per- to olina will result in a in decrease syphilis form test for number $10 between of women who are able perform $22 to to obtain pap lest state, in the a corresponding smear. increase in the number of women who must travel to trial, plaintiffs 13. At presented procedure, e.g., obtain the Savannah, evidence from Beaufort to that, comply Regulation Georgia Charleston, and/or require CWMCwould costing ap- will, renovations Carolina. turn, a need Such to travel in $27,235, proximately Lynn's that Dr. Green- ability reduce the to obtain an abortion or practice ville require would renovations cost- delay result in a in obtaining the abortion. forth standard set advances, respect to the 43. With that, pregnancy as a found court Salerno, concluded court the district abor- with an associated risks unconstitutional was Regulation 61-12 term that increase, a full procedure tion therefore, and, applications its all of physical risky to is more pregnancy id. at See under Salerno. not stand could a first trimester woman than of a health 736-43. id. abortion. See Equal Protection respect to the With
F Regula- that Clause, court held the district Equal Protection violated the district 61-12 findings Based on test scrutiny the strict both above, court under the district Clause summarized court basis test. rational lenient violated the more concluded respect 737-43. With Protection id. at Equal See Due Process held test, court the district Amendment. rational basis the Fourteenth Clauses be- test 61-12 failed respect 724-43. With and abortion physicians out singles held Clause, court cause district Due Process tri- more first five or performing pass consti- clinics failed from other per month in- the facial abortions mester under either tutional muster four or performing and clinics States physicians forth United set validity standard per month 2095, 95 trimester Salerno, 107 S.Ct. first less 481 U.S. v. procedures virtually identical (1987), the undue burden and/or L.Ed.2d onerous burdens additional and places Parenthood Planned forth test set clinics and abortion upon physicians Casey, differences by actual (1992) joint opinion justified neither (plurality L.Ed.2d J.J.). legiti- state’s Souter, to the rationally related O’Connor, Kennedy, and nor Clinic, the health protecting interest mate Women’s Greenville first to the women respect safety of With at 727-37. F.Supp.2d *34 id. at Casey, 740-43. forth in See set abortions. standard undue burden 61- Regulation held that court district the concluded, in court Finally, the district designed not serve was not 12 did the law and Carolina both South light of in maternal interest the state’s serve 61-12, Regulation that Regulation of text con- To the at 730-35. id. health. See of the doctrine subject to was 61-12 that concluded court the district trary, 743-44. id. at See severability.15 the likely harm would 61-12 Regulation in South Carolina. of II health women con- court the district Accordingly, id. A was unconsti- cluded Four- of the Process Clause The Due at 735. Casey. under tutional shall that: “nor states Amendment if teenth even also concluded district court life, liber- of person deprive any any in- State the state’s furthered of process due without property, health, ty, im- burdens terest maternal Const, XIV, § “Al- 1. amend. U.S. law.” upon abortion by Regulation 61-12 posed the Clause reading of a literal though un- an constituted providers patients only the governs suggest might an to have right a woman’s burden due may deprive a State by which procedures at 735- viability. See id. prior to abortion Amendment, costs, the Fourteenth tion Clauses its carries own to travel And need to address court declined district of obtain- overall cost increase which will remaining claims plaintiffs’ compound financial ing the abortion (2) unconstitutionally vague; 12:(1) was problem. 61— confidentiality patients' violated the (3) Establishment violated rights; and Regulation 61-12 ruling that light its In 15. First Amendment. Clause Equal Protec- Due Process violated the 194
persons of liberty, ...
the Clause has been mother and the judgment of the mother’s
understood
contain
a substantive com- physician;
that during the time after the
ponent well,
barring
one
govern-
certain
first trimester but
viability
before
ment actions regardless of the
fetus,
fairness of
the state could regulate the abortion
the procedures
implement
used to
them.”
decision in ways reasonably related to ma-
Casey,
846,
505
U.S.
health;
S.Ct. 2791 ternal
and that after viability, the
(plurality joint opinion O’Connor,
Ken-
state could regulate or proscribe abortion
J.J.) (citation
Souter,
nedy, and
except
inter-
when necessary
preserve
the life
omitted).
nal quotation marks
A woman’s or health of the mother.
164-65,
See id. at
right to have an
recognized as a 93
S.Ct.
fundamental right protected
sub-
Roe,
Since
the Court has struggled to
stantive component of the Due Process
precise
formulate a
standard for reviewing
Clause of the Fourteenth Amendment.
facial challenges to abortion regulations.
Wade,
See Roe v.
113, 155-66,
Salerno,
In
the Court explained that
S.Ct.
(1973);
L.Ed.2d 147
see also
[a] facial challenge
is,
to legislative
Act
Hunt,
Manning v.
(4th
119 F.3d
course,
the most difficult challenge to
Cir.1997).16
mount successfully, since the challenger
Roe,
Supreme
Court overturned a
must establish that no set of circum-
Texas statute prohibiting abortions unless
stances exists under which the Act
an abortion was necessary to save the life
would be valid. The fact that[an Act]
of the mother. See
410 U.S. at
might operate unconstitutionally under
S.Ct. 705. The Roe Court held that the
some conceivable set of circumstances is
right
personal
privacy
the right
includes
insufficient to
invalid,
render it wholly
abortion,
have an
but that the right “is
since we have not recognized
“over-
not unqualified and must be considered
breadth” doctrine outside the limited
against important state
interests
regula-
context of the First Amendment.
tion.”
Id. at
195 inconsistency. Okpalobi the resolve to application. constitutional has if it (5th Cir.1999) 337, Foster, 354 F.3d 190 uncon- v. showing a factual Casey, Under to ad- declining but inconsistency (noting fraction large in “a application stitutional un- law failed challenged can applies law it because the dress where cases” the Salerno). has unconstitutional, if it Casey and even both law der render application. some constitutional the However, resolved circuit never our courts wake, many circuit Casey’s In the despite what question, Salemo/Casey in the Salerno Casey displaced held that See ante one believe. might have majority See, Par Planned e.g., context. abortion applied we Manning, In 164-65. 1022, Lawall, 1027 F.3d 180 v. enthood to an abortion review standard Salerno sugges Cir.) (“In previous of our (9th light challenge not statute, plaintiffs did but weight great with the tion, combined n. 4. at 268 119 F.3d applicability. its overruled Casey has holding authority suggested dicta, however, the court challenges of facial context in the Salerno apply the Salerno nonetheless we would un Casey’s statutes, apply we to abortion explicit- Supreme Court until the standard determining standard burden due it, stating that ly overruled statute constitutionality [the facial the court province is not Kit (9th 1042 by 193 F.3d issue].”), amended Supreme how predict to appeals v. Corp. Cir.1999); Med. Women’s Prof'l an issue. ultimately rule will Court (6th Cir. Voinovich, F.3d 130 Sal- overrule specifically not Casey does inapplica 1997) that Salerno (concluding moment, can most erno. At regula abortion to challenges facial to ble indi- have three Justices is that said be burden undue Casey’s applying tions the Su- Until to do so. desire cated 1036, 118 denied, 523 U.S. standard), cert. so, does specifically Court preme (1998); Jane 496 L.Ed.2d 140 S.Ct. apply the is bound though, Court (10th 1112, 1116 102 F.3d Bangerter, L. v. re- it has been standard Salerno between Cir.1996) difference (noting of other context in the applied peatedly Casey’s applying and Salerno Casey Su- by the reviewed abortion abortion to facial standard burden undue Miller, Court. preme Parenthood challenge); Planned Cir.1995) (choosing (8th 1452, 1458 63 F.3d v. Cam- Parenthood Id.; Planned see also actual Supreme Court “what to follow Cir.1998) (4th 14n. bios, F.3d say— failed to than what ly did—rather Manning dicta but banc) (en (noting to facial test” the undue-burden apply denied, cert. question), deciding Planned Casey v. challenge); 1031, 143 L.Ed.2d 1140, 119 S.Ct. (3d n. 21 Parenthood, 14 F.3d J., (Michael, (1999); n. id. at Cir.1994) Court Supreme (noting that (asserting judgment) concurring chal facial standard a new Casey “set must test burden Casey’s, undue laws”). The previability lenges abortion re challenges facial applied test the Salerno applied has Fifth Circuit strictions). *36 Casey, after challenge abortion ato facial finally was question Salemo/Casey The (5th 12, 14 Moore, 970 F.2d v. Barnes see in Sten Court Supreme by the resolved of Salerno Cir.1992), application but its — -, Carhart, U.S. berg v. T. consistent, Sojourner see been has not (2000). In that L.Ed.2d 2597, 147 (5th Cir. Edwards, F.2d a fa brought case, physician a Nebraska banning abor 1992) down statute (striking birth” “partial challenge to Nebraska’s cial under Ca clearly unconstitutional tions by interpreted As statute. abortion permitted though sey, even statute Court, the Nebraska therefore, Supreme and, mother life of save the trimes of second performance un muster banned constitutional passed arguably (D&X) abor- extraction dilation yet has ter Salerno), Fifth Circuit and the der tions, commonly referred to as “partial S.Ct. 2791. An undue burden if the exists abortions,” birth and the performance of state has the effect of placing a (D&E) dilation and evacuation abortions, substantial obstacle the path of a wom the most used commonly method per an’s choice to obtain before forming previability second trimester abor fetus attains viability. 877-78, Id. at tions. Supreme Court applied Casey S.Ct. 2791. A statute that creates a sub and concluded Nebraska statute stantial obstacle for a large fraction of was unconstitutional independent two those women by affected the regulation First, reasons. the Court concluded creates an undue burden and is facially the Nebraska statute was unconstitutional unconstitutional. 894-95, See id. at because the statute lacked exception Thus, S.Ct. 2791. in Casey, the Court preservation for the of the health rejected Roe’s framework, but mother and the record evidence disclosed left intact a woman’s fundamental right “to that, in some circumstances, a D&X abor choose to have an abortion before viability tion would be safest abortion. See and to obtain it without undue interference — Sternberg, U.S. at-, 120 from the 846, 112 state.” Id. at S.Ct. Second, S.Ct. at 2609-13. the Court con reaching conclusion, this the Court rec that, cluded because the Nebraska ap law ognized that the state’s prior interests plied performance to the of D&E abor viability “are not strong enough support tions, the most commonly used prohibition method for of abortion or the imposition performing previability second trimester aof substantial obstacle to the woman’s abortions, the resulting of prosecu fear right effective to elect procedure.” Id. tion, conviction, and imprisonment by felt In Casey, the Supreme pre Court was physicians perform who D&E abortions sented with constitutional challenges to amounted to an undue burden a wom provisions various in a Pennsylvania stat — right an’s to have an abortion. See id. ute governing consent, parental informed at-, at S.Ct. 2613-17. consent, record-keeping and reporting re case,
In this
the district court did not
quirements, and a medical emergency ex
resolve the Salerno/Casey question. See
ception.
See id. at
relatively surgical procedure, safe depart from accepted prac medical Court held that the tice, cannot withstand constitutional scruti
[s]tate’s discretion to regulate on [the
ny and must be invalidated. See Casey,
basis maternal
does
health]
not
...
199
61-12, DHEC deems
Regulation
by
hibited
Car-
in South
abortions
of women
later
as
practices”
the best
“against
to
as to
be
is offered
explanation
olina,
no
and
Obviously,
X.
Id. Part
by DHEC.
so defined
are
requirements
these
all of
why
subjects physi-
61-12
Regulation
X of
they Part
than
these clinics
for
greater
much
uncertainty in the
unnecessary
to
cians
perform-
offices
physicians’
other
for
ar-
and invites
practices
their
of
operation
procedures.
of
type
same
ing the
not an
Finally, it is
bitrary enforcement.
an
not
is
which
requirement
Another
a
permit
state
practice to
accepted
Regulation
is
practice
accepted medical
DHEC,
an abor-
enter
as
to
agency, such
registered
a
that
requirement
61-12’s
records,
clinic,
disseminate
copy
and
tion
physician,
a
nurse,
to
licensed
opposed
as
what
precisely
is
publicly, but
them
no evi-
There is
nursing care.
supervise
allows.19
61-12
Regulation
phy-
that
to suggest
in
record
the
dence
nursing
capable
supervising
of
not
is not
does
sician
61-12
summary, Regulation
In
addition,
61-12 re-
Regulation
In
ma-
protecting
care.
of
interest
the state
further
...
kept
“be
clinic
an abortion
fact,
that
61-12
quires
Regulation
In
health.
ternal
areas
all outside
that
and
by
from
free
odors”
the
found
effect. As
opposite
has the
rubbish,
and weeds
grass,
of
kept free
sub-
will
court,
“be
61-12
Regulation
district
insects,
for
... as a haven
in
serve
of abortions
that
the cost
stantially increase
Ann.
S.C.Code
pests.”
other
61-12
Regulation
rodents
because
Carolina
However,
61-12,
and 606.
§§ 604
performed,
Regs.
be
unnecessary tests
requires
suggest-
record
the
hired, and,
no evidence
in some
there
be
unnecessary staff
ensure
would
requirements
existing
that these
fa-
ing
to
cases,
renovations
extensive
abortion
a first
of
quality
61-
the
Because
be made.
cilities
patients.
protection
the
or
procedure
increase
substantial
will result
12
in South
obtaining
abortion
cost of
X
the
about Part
can
said
be
same
The
of women
Carolina,
number
significant
the
DHEC
grants
which
having an
delay
either
forced
be
con- will
penalties
impose
authority to
altogether.
one
abortion,
having
forego
or
pro-
which,
not mandated
while
dition
provided
confidential
remained
records
Regulation 61-12
implies
majority
19.
identity of
the
disclosure
patient
public
the
abortion
treat all
requires DHEC
Danforth,
expressly prohibited);
at 171-72.
patients
ante
was
See
as confidential.
records
(Missouri
79-81,
2831
However,
imposes no such
96 S.Ct.
Regulation 61-12
U.S. at
428
Rather,
Regula-
re-
patient
under
information
requirement on DHEC.
mandated
statute
treat
61-12,
must
clinic
only
confidential
the abortion
was
patient
forms
quired
S.C.Code
See
purposes).
as confidential.
In
patient records
statistical
be used
61-12,
Succinctly put,
§ 402.
Regs.
to a
view,
akin
Ann.
is more
Regulation 61-12
my
enter an
DHEC to
allows
Regulation 61-12
rejected
Pennsylvania statute
provision of
records,
clinic,
and make
inspect its
Thornburgh Amer-
v.
by
Supreme
the
Court
records,
102(F),
§id.
see
of these
photocopies
Gynecolo-
College Obstetricians
ican
places no limitation on
Regulation 61-12
2169,
747,
90
S.Ct.
106
U.S.
gists, 476
photocopies
once
records
use
the
DHEC's
case,
though
(1986);
even
in that
779
L.Ed.2d
Thus,
differs
made.
are
markedly
review stated
under
law
Pennsylvania
the
upheld
provisions
records, Penn-
public
were
reports
patient
Roe,
U.S.
429
v.
Whalen
Supreme Court in
reports,
permitted the
law
sylvania
(1977),
869,
51 L.Ed.2d
97 S.Ct.
women
about
information
both
contained
Danforth, 428 U.S.
Parenthood
Planned
and information
obtained
who
(1976),
two
L.Ed.2d
96 S.Ct.
them, who
doctors
about
at 171-
See ante
majority.
cited
cases
the Com-
limit
did not
public
also
made
cases,
at issue
the statute
of these
each
information.
patient
use of
monwealth's
access to
had
agency which
required the state
2169. One
records
to treat
records
patient
confidentiality is worth
the issue
point on
significantly limited
confidential and/or
NAF
of the
guidelines
noting. Both
records.
patient
agency's use
state
any medical
release
prohibit
(New
ACOG
Whalen,
S.Ct.
consent.
patient's
without
record
to insure
measures
had extensive
statute
York
This,
turn,
will result in
health
increased
guidelines
ACOG
address the adminis-
risks to women seeking abortions. Ac
tration of
clinics,
they do not re-
cordingly, Regulation 61-12
*40
no oth
serves
quire the extensive
policies,
written
proce-
er purpose than to make abortions more
dures, and formal meetings required by
obtain, and,
difficult to
therefore, Regula Regulation
Also,
61-12.
ACOG
tion 61-12 violates the Due Process Clause NAF guidelines forbid the
any
release of
of the Fourteenth Amendment. See Ca medical information from patient’s
a
rec-
sey,
2791;
at
112 S.Ct.
id. at
ord
prior
without the
consent of
pa-
900-01,
South
Regulation
Carolina.
61-12 goes
upshot
of this discussion is that the
far beyond the recommendations of ACOG departures
from the ACOG and NAF
NAF, and,
in some cases conflicts with guidelines
above,
listed
coupled
many
Thus,
them.
while the ACOG and NAF
discussed,
others not
result in a substantial
guidelines
physical plant
address
increase
the cost of obtaining an abor-
equipment needs in
clinics, they
abortion
tion in the State of South Carolina. As
do
suggest
not
or support
the extensive
above,
noted
because
61-12 will
plant and equipment
(such
requirements
result in a substantial increase in the cost
as mandating
separate
numerous
rooms or
of obtaining an abortion in
Carolina,
South
areas,
sinks,
utility
specific
air ex-
a significant number of women will be
changes, sheltered entryways, special jani-
forced to either delay having
abortion,
an
closets)
tor’s
included in Regulation 61-12. or forego having
altogether. Also,
one
Similarly, the ACOG and NAF guidelines
costs will likely force the closure of Dr.
do not contain any
sup-
recommendations
Lynn’s
office,
Beaufort
which will result in
porting the staffing requirements imposed
the elimination of abortion services in that
by Regulation 61-12. For example, none part of South Carolina. Under such cir-
guidelines
require that a registered
cumstances, one must conclude that Regu-
supervise
nurse
nursing care in an abor-
lation 61-12 does not further the State of
facility
tion
if the attending physician is South Carolina’s interest
in maternal
able
supervise
addition,
care.
health.
the ACOG and NAF guidelines do not
support the testing requirements
Even if
imposed
Regulation 61-12 furthers the
by Regulation 61-12; specifically, they
state
do
interest of protecting and preserving
call for
routine testing of abortion
the health of women seeking abortions,
patients other than for Rh factor
and ane-
61-12 cannot stand if it impos-
mia, and they state that sexually transmit-
es an undue burden on a woman’s funda-
ted disease testing
should be
right
mental
abortion,
obtain an
see id.
the basis of risk
Likewise,
factors.
while
at
112 S.Ct.
as a
Regulation 61-
because
closes
practice
placing substan-
“the effect
has
in the
elimination
result
aof woman's
path
in the
obstacle
tial
part of the state
permissible
services
be considered
choice cannot
Id.
increased costs
ends.”
Also the
altogether.
legitimate
its
serving
means
Regula-
resulting
review of
2791. A
providing
throughout
61-
facilities
61-12 at other
it clear
tion
record makes
significant
burden on
prevent
undue
an
will
impose
Carolina
12 will
prior to viabili-
obtaining
abor-
obtain an
women from
right
number
earlier,
minimum,
a first
delay them from
or,
noted
As
ty.
*41
in
Car-
South
abortion, thus,
abortion
curettage
resulting
suction
an
obtaining
and
$325
currently costs between
in South
olina
to women
health risks
increased
the
gestational age,
the
on
$480, depending
Carolina.
needed, and
anesthesia
or
type of sedation
imposes
also
additional
Regulation 61-12
on
Based
indicated.
testing
the medical
cost,
to
burdens,
right
on the
to
unrelated
61-
Regulation
complying with
the costs
example, Regula
For
an abortion.
obtain
that
found
court
the district
the
inspectors
DHEC
grants
61-12
tion
each abortion
cost
raise the
would
61-12
and
at will
clinics
inspect abortion
to
right
following
the
plaintiffs
by
be
limitation;
can
inspections
such
without
in-
CWMC,
(1)
cost will
for
ranges:
Dur
anonymous complaints.
by
initiated
(2)
$75.03;
for
and
$36.48
between
crease
inspectors
DHEC
inspection,
any such
ing
cost
practice,
Greenville
Lynn’s
Dr.
copy
to
confidential
right
granted
$170.39;
$93.09
increase between
will
records,
61-12 does
patient
practice,
(3)
Beaufort
Lynn’s
Dr.
keep
will
these
DHEC
ensure
$115.67
between
increase
will
cost
re
this
Obviously,
confidential.
records
(4)
GWC,
will
the cost
$367.50; and
aon
chilling
effect
would have
quirement
and $32.39.
between $22.68
increase
have,
choose to
to
freedom
woman’s
Clinic,
F.Supp.2d
Women’s
Greenville
an
perform,
to
willingness
physician’s
cost
in the
increase
significant
A
at 717.
example Regulation
Another
abortion.
consti-
can
alone
an abortion
obtaining
abor
that a married
requirement
have 61-12’s
right to
on the
undue burden
an
tute
name.
her husband’s
disclose
patient
U.S. at
Casey, 505
abortion.
an
is not neces
this
Obviously,
requirement
in-
(“While
point
some
at
care,
of safe
provision
for the
sary
a substantial
become
cost could
creased
awhy
of reasons
are a host
showing on
there
obstacle,
is no such
there
dis
not to
prefer
us.”).
patient
would
It follows
married
before
record
Casey, 505
to
due
name.
husband’s
availability of abortions
her
close
decreased
Cf.
(holding
893-98,
clinic
S.Ct.
only abortion
of the
U.S.
the closure
an
spousal
requiring
constitutes
also
law
Pennsylvania
of a state
one area
an
an
imposes
to have
abortion
right
on the
to
prior
undue burden
notification
an
the distance
to have
abortion,
right
increases
on
undue burden
abortion,
also
an
abortion). Thus,
requirement
to obtain
to travel
this
has
woman
time
increasing
obtaining
an abor
thereby significantly
from
a woman
hinders
an
five
performing
to
abortion.
the cost
obtain
Finally, physicians
tion.
per
first
trimester
more
signifi-
impose a
will
the State
licensed
be
month must
obtaining an
cost of
in the
cant increase
qualified
“properly
Carolina
turn,
South
which,
Carolina,
in South
abortion
perform”
experience
training and
abor-
obtaining
from
prevent woman
will
Regs.
Ann.
S.C.Code
abortions.
Beau-
woman in
for a
example,
tions. For
205(C). However, Regulation
first
Carolina,
of a
cost
fort,
cre
the additional
guidance
provides no
increase,
mini-
at a
will
a medical
beyond that
required
dentials
or,
Lynn’s
Dr.
Beaufort
mum, $115.67,
if
qualification
license meet this
standard.
an undue burden on a
right
woman’s
Thus, physicians
perform
who
five or more
obtain an abortion. See ante at 169-72.
first trimester abortions per
oper-
month
pillar
supporting the majority’s hold-
ate under a
fear
they
constant
will be
ing is its observation that
plaintiffs
“unqualified”
declared
by DHEC under
produce
failed to
evidence demonstrating
vague
some
amorphous
standard. Ob-
that the cost increases
resulting
viously,
readily apparent
fear would promulgation of Regulation 61-12 would
have
chilling
physician’s
effect on a
will- have an adverse effect on a women’s abili-
ingness
perform
abortion,
thus,
re-
ty to obtain an
South Carolina.
in an
sulting
impact
adverse
on a woman’s See ante at 170-71.
pillar
This
is a trans-
ability to obtain an abortion.
Stenberg,
parent facade,
Cf.
at best.
—
at-,
(“In
S.Ct.
part,
the district court’s finding of an
sum, using this law some present prosecu
undue
premised
burden was
on the testi-
tors and future Attorneys
General
mony
plaintiffs’
expert, Dr. Stanley
pursue
choose to
physicians who use D&E
Henshaw. Dr. Henshaw testified that an
procedures,
the most commonly used
*42
just
increase of
can be expected
$25
method
performing previability second
prevent one or two
of
out
every 100 low-
trimester abortions. All those
per
who
income
women
an abortion from
form procedures using that method must
being able to obtain one.
Supreme
Under
prosecution,
fear
conviction,
imprison
law,
Court case
this constitutes an undue
ment. The result is an
upon
undue burden
burden on a
right
woman's
to obtain an
a woman’s right to make an abortion deci
abortion. See Casey,
505 U.S. at
sion.”). Under
circumstances,
these
I am
Finally, in
the laws”
anything,
means
Women’s Health
it
Center of
very
West
must
the
County,
Webster,
Inc. v.
least mean that a
bare
F.2d
(8th Cir.1989),
...
Circuit,
desire to harm a politically
the Eighth
unpopular
applying
test,
the
group
rational
cannot
upheld
basis
legitimate
an
constitute a
gov
”
abortion regulation which required
ernmental
emer-
interest.’
Id. at
gency backup
against
care
an equal protec-
1620 (quoting
S.Ct.
Department
Agric.
tion challenge.
Moreno,
id. at
1381. The court
528, 534,
413 93 S.Ct.
that,
noted
although
regulation
the
applied 2821,
(1973)).
III
contain severability provision,
despite the
fact that other
DHEC
have
remaining issue in the ease is
See,
included such provisions.
e.g.,
the question of severability. The defen-
61-4,
VI,
S.C.Code Ann. Regs.
Part
§ 601
dants contend that the district court erred
(controlled
substances
regulation);
in refusing to sever the unconstitutional
S.C.Code Ann. Regs.
(sexually
T
portions Regulation
61-12 from the con-
diseases).
transmitted
The absence of a
portions.
stitutional
argument
This
is
severability clause is consistent with the
without merit.
scheme of
enabling
legislation and the
Whether
subject
61-12 is
to nature
regulation.
of the
It
apparent
is
the doctrine
severability
question
is a
that the South Carolina legislature intend
state,
federal,
rather
than
law. See De-
ed for DHEC to
comprehensive
create a
partment
Fabe,
Treasury licensing scheme for
providers,
as
491, 509-10,
2202,
124 L.Ed.2d Regulation 61-12 sets forth areas to be
(1993).
law,
Under South Carolina
addressed
the regulation
whole,
as a
[t]he test for severability is whether the
and the text of
compre
is
portion
constitutional
of the statute re-
hensive and interdependent,
reflecting a
complete
itself,
mains
wholly indepen-
similar intent
it
stand or fall as a
dent of that
rejected,
is
which
is
words,
whole. In other
because the South
such a character as it may fairly be
legislature
Carolina
directed DHEC to
presumed that
the Legislature would promulgate
comprehensive
set of regula
passed
have
it independent of that which tions governing virtually every aspect of
is in conflict with the Constitution.
procedure,
it is evident that
Thayer
Comm’n,
v. South Carolina Tax
legislature
South Carolina
intended for
(1992)
S.C.
S.E.2d
all of Regulation 61-12 to be enforced or
(citation and
quotation
internal
marks
none of
Finally,
it.
I note that severance
omitted). Moreover, if
statutory
or
is
simply
possible, as I
simply
am
regulatory scheme does not
spe-
contain a
unable
“untangle
the constitutional from
cific severability clause,
legislature
provisions.”
unconstitutional
Rags
agency
presumed
is
to have “intended the
dale,
building codes. qualifications As to staff abortions. recog- refuses to majority evince prece- JACKSON, Supreme Rogers Court Lee Plaintiff- that current
nize the still has that a woman mandates Appellant, dent an abortion. right to obtain fundamental impediment uphold eagerness to In its previ- to a right fundamental a woman’s APFEL, Kenneth Commissioner S. abortion, interjecting majority, the ability Security, Defendant- of Social of a aspect psychological the emotional Appellee. the decision, desensitize would woman’s when to be addressed issue
real basic No. 98-41193 is, regulations evaluating such —that Summary Calendar. medically nec- regulations whether and, so, regulations whether essary if Appeals, States Court of United woman’s on a burden impose an undue Fifth Circuit. an abortion to have right fundamental There pregnancy. stage previability Sept. Car- of South the State no doubt that is limits, dif- can, abortions treat within olina procedures. from other
ferently of whether question But to resolve are medi- governing compa- reference necessary, some cally if not inevit- necessary, procedures rable able. analy- majority’s considering
When carefully se- its chosen based on sis fact facts, findings of ignoring lected court, only be con- it can by the district opinion is based majority’s that the cluded would like to as it of the law its view on on and, significantly, perhaps more see dictate, law current would what majority prophecies only what the but reaches this case and when law will be if simply unac- This is Court. Supreme what are to decided ceptable; cases simple. just that law is. It’s 61-12 is violative up, Regulation To sum Protection Equal Due Process of the Amendment, Fourteenth Clauses law, Regulation and, under Carolina doctrine subject to the 61-12 is not I would affirm Accordingly, severability. of the district court.22 judgment fees, argument merit. is without attorneys' argument the defen- regard to the 22. With *47 award of attacking the district court’s dants