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| [1] | UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT |
| [2] | No. 99-1319, No. 99-1710 No. 99-1725 |
| [3] | 2000.C04.0043891 <http://www.versuslaw.com> |
| [4] | August 15, 2000 |
| [5] | GREENVILLE WOMEN'S CLINIC; CHARLESTON WOMEN'S MEDICAL CLINIC, INCORPORATED;
WILLIAM LYNN, MD, ON BEHALF OF THEMSELVES AND THEIR PATIENTS SEEKING ABORTIONS,
PLAINTIFFS-APPELLEES, V. DOUGLAS E. BRYANT, IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF SOUTH CAROLINA DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL; CHARLES M. CONDON, IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL OF THE STATE OF SOUTH CAROLINA, DEFENDANTS-APPELLANTS, GOVERNOR OF SOUTH CAROLINA, DEFENDANT. GREENVILLE WOMEN'S CLINIC; CHARLESTON WOMEN'S MEDICAL CLINIC, INCORPORATED; WILLIAM LYNN, MD, ON BEHALF OF THEMSELVES AND THEIR PATIENTS SEEKING ABORTIONS, PLAINTIFFS-APPELLEES, V. GOVERNOR OF SOUTH CAROLINA, DEFENDANT-APPELLANT, AND DOUGLAS E. BRYANT, IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF SOUTH CAROLINA DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL; CHARLES M. CONDON, IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL OF THE STATE OF SOUTH CAROLINA, DEFENDANTS. GREENVILLE WOMEN'S CLINIC; CHARLESTON WOMEN'S MEDICAL CLINIC, INCORPORATED; WILLIAM LYNN, MD, ON BEHALF OF THEMSELVES AND THEIR PATIENTS SEEKING ABORTIONS, PLAINTIFFS-APPELLEES, V. DOUGLAS E. BRYANT, IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF SOUTH CAROLINA DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL; CHARLES M. CONDON, IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL OF THE STATE OF SOUTH CAROLINA, DEFENDANTS-APPELLANTS, GOVERNOR OF SOUTH CAROLINA, DEFENDANT. |
| [6] | Appeals from the United States District Court for the District of South
Carolina, at Greenville. William B. Traxler, Jr., District Judge. (CA-96-1898-6-21) |
| [7] | Counsel Argued: Floyd Matlock Elliott, Haynsworth, Marion, Mckay &
Guerard, L.L.P., Greenville, South Carolina, for Appellants. Bonnie Scott
Jones, The Center For Reproductive Law & Policy, New York, New York,
for Appellees. ON Brief: George Dewey Oxner, Jr., Boyd Benjamin Nicholson,
Jr., Haynsworth, Marion, Mckay & Guerard, L.L.P., Greenville, South
Carolina; Nancy Staats Layman, Legal Division, Department OF Health And
Environmental Control, Columbia, South Carolina; Charles Molony Condon,
James Emory Smith, Jr., Office OF The Attorney General, Columbia, South
Carolina; Charles E. Carpenter, Jr., Donald V. Richardson, III, S. Elizabeth
Brosnan, Richardson, Plowden, Carpenter & Robinson, P.A., Columbia,
South Carolina, for Appellants. Randall Hiller, Greenville, South Carolina,
for Appellees. |
| [8] | Before Niemeyer, Circuit Judge, Hamilton, Senior Circuit Judge, and Frederic
N. Smalkin, United States District Judge for the District of Maryland, sitting
by designation. |
| [9] | The opinion of the court was delivered by: Niemeyer, Circuit Judge |
| [10] | PUBLISHED |
| [11] | Argued: January 27, 2000 |
| [12] | Reversed by published opinion. Judge Niemeyer wrote the opinion, in which
Judge Smalkin joined. Senior Judge Hamilton wrote a dissenting opinion. |
| [13] | OPINION |
| [14] | This case presents the important question of whether South Carolina's
regulation establishing standards for licensing abortion clinics -Regulation
61-12 of the South Carolina Department of Health and Environmental Control,
S.C. Code Ann. Regs. 61-12 (eff. June 28, 1996) -- violates the Due Process
Clause and the Equal Protection Clause of the Fourteenth Amendment by placing
an undue burden on women's decisions to seek abortions and by distinguishing
between clinics that perform a specified number of abortions and those that
do not. Two abortion clinics and an abortion provider filed this action,
on behalf of themselves and their patients, facially challenging the constitutionality
of the Regulation. The district court concluded that the Regulation violated
both of these clauses of the Fourteenth Amendment, declared the Regulation
"invalid," and enjoined its enforcement. |
| [15] | As amplified herein, we reverse this decision and uphold the constitutionality
of Regulation 61-12 because (1) the Regulation serves a valid state interest
and is little more than a codification of national medical- and abortion-association
recommendations designed to ensure the health and appropriate care of women
seeking abortions; (2) the Regulation does not "strike at the [abortion]
right itself," Planned Parenthood v. Casey, 505 U.S. 833, 874 (1992)
(joint opinion of O'Connor, Kennedy, and Souter, JJ.); (3) the increased
costs of abortions caused by implementation of the Regulation, while speculative,
are even yet modest and have not been shown to burden the ability of a woman
to make the decision to have an abortion; and (4) abortion clinics may rationally
be regulated as a class while other clinics or medical practices are not. |
| [16] | I. |
| [17] | Prior to 1995, South Carolina regulated clinics at which secondtrimester
abortions were performed. See S.C. Code Ann. §§ 44-41-20(b), -70(b) (Law.
Co-op. 1985); S.C. Code Ann. Regs. 61-12 (1982) (entitled "Minimum
Standards for Licensing Clinics Performing Abortions"). The regulation
under this earlier statute contained chapters covering abortion-clinic management,
laboratory facilities and procedures, medical records and reports, clinic
design and construction, and patient-care areas. See S.C. Code Ann. Regs.
61-12 (1982). |
| [18] | In 1995, the South Carolina legislature amended its statute to require
any "facility in which any second trimester or five or more first trimester
abortions are performed in a month" to be licensed as an abortion clinic
by the Department of Health and Environmental Control ("DHEC").
S.C. Code Ann. §§ 44-41-10(C), -75(A) (West Supp. 1999). In addition, it
directed the DHEC to promulgate regulations concerning sanitation, housekeeping,
maintenance, staff qualifications, emergency equipment and procedures to
provide emergency care, medical records and reports, laboratory, procedure
and recovery rooms, physical plant, quality assurance, infection control,
and information on and access to patient follow-up care necessary to carry
out the purposes of this section. Id. § 44-41-75(B). |
| [19] | The DHEC responded by promulgating Regulation 61-12, effective June 28,
1996. See S.C. Code Ann. Regs. 61-12 (West Supp. 1998) (hereinafter "Regulation
61-12" or "the Regulation"). |
| [20] | In developing Regulation 61-12, the DHEC built on the pre-existing version
of its Regulation 61-12, as well as other DHEC regulations covering different
types of healthcare facilities. The DHEC also consulted various medical
standards and guidelines issued by medicalcare organizations, including
groups dedicated to protecting abortion rights. These sources included:
(1) Standards for ObstetricGynecologic Services (7th ed. 1995), issued by
the American College of Obstetricians and Gynecologists ("the ACOG");
(2) Manual of Medical Standards and Guidelines (1994), issued by Planned
Parenthood, which the manual describes as encouraging affiliates "to
develop abortion services if such a need exists in the community and resources
are available for conducting a safe and effective program"; and (3)
Standards for Abortion Care (1988), a set of standards, the "purpose"
of which is "to promote high quality care for all women seeking abortions"
and "serve as a useful resource for local and state agencies charged
with safeguarding the public's health," issued by the National Abortion
Federation, which the standards describe as "an organization specifically
committed to the provision and accessibility of high quality abortion services
for all women." The DHEC also reviewed abortion regulations from other
states and referenced the Guidelines for Construction and Equipment of Hospital
and Medical Facilities (1992-93), a document issued by the American Institute
of Architects, which purports to provide "model standards" for
"constructing and equipping new medical facility projects" and
for "renovation or replacement work." |
| [21] | In addition to consulting established sources, the DHEC conducted public
hearings, during which it received suggestions from the abortion clinics
that are parties to this case, incorporating some of them in new Regulation
61-12. The new Regulation, entitled "Standards for Licensing Abortion
Clinics," S.C. Code Ann. Regs. 61-12 (West Supp. 1998), contains ten
parts which address a range of medical, safety, and administrative requirements: |
| [22] | Part I, "Definitions and Requirements for Licensure," defines
an abortion clinic as "[a]ny facility, other than a hospital . . .
in which any second trimester or five or more first-trimester abortions
per month are performed." Id. § 101(B). It makes the operation of an
abortion clinic without a license illegal. See id. § 102(A). It provides
for periodic inspections, including at least one annually, and grants inspectors
the authority to copy all documents required in the course of inspections.
See id. § 102(F). And it authorizes sanctions for noncompliance with the
Regulation in the form of monetary penalties, as well as denial, suspension,
or revocation of the license. See id. § 103. |
| [23] | Part II, "Administration and Management," requires every facility
to formulate and review annually its policies and procedures. See id. §
201(B). It requires that each clinic maintain various administrative documents
on file. See id. § 203. Every employee is required to complete in-service
training and undergo a tuberculin skin test, see id. § 204(B), (F), and
any employee diagnosed with a contagious disease is prohibited from performing
certain work at the clinic, see id. § 204(D). It requires that every abortion
be performed by a physician who is licensed by the State and requires that
every clinic be affiliated with a physician who has admitting privileges
at a local hospital. See id. § 205(C). A registered nurse must supervise
all nursing care, and an ultrasound test may be conducted only by a person
who has completed a course in ultrasonography. See id.§ 205(D), (F). Each
facility must display a copy of a statement specifying patients' rights,
including the rights to dignity, privacy, and safety. See id. § 209. |
| [24] | Part III, "Patient Care," provides that each facility must have
certain written patient-care policies and procedures to ensure professional
and safe care and that no clinic may serve patients whose needs exceed the
clinic's resources and capabilities. See id. § 301. Specified drugs and
tools must be present, see id.§ 303, and laboratory services must be available,
either on site or through an arrangement with a laboratory, see id. § 304(A).
A number of laboratory tests must be performed, including a urinalysis and
testing for sexually transmitted diseases. See id. § 304(B), (C), (D). Staff
at abortion clinics must have admitting privileges at a local hospital or
have documented arrangements for emergency transfer to a hospital. See id.
§ 305(A). And facilities that perform abortions beyond the 14th week of
pregnancy must meet additional requirements. See id . § 309. |
| [25] | Part IV, "Medical Records and Reports," requires that every
abortion clinic maintain and retain for ten years specified categories of
information and requires that the documents be treated as confidential.
See id. § 401, 402. Abortion clinics must report to the DHEC all abortions
performed, any fetal deaths meeting certain criteria, and any accidents
or incidents. See id. § 403. |
| [26] | Part V, "Functional Safety and Maintenance," requires written
safety policies and procedures and a disaster-preparedness plan and sets
standards for maintenance, requiring that facilities be kept in good repair.
See id. §§ 501-503. |
| [27] | Part VI, "Infection Control and Sanitation," requires certain
daily sterilization procedures, see id. § 602, mandates proper laundering
of linen and washable goods, see id. § 603, and requires the facility to
be kept neat, clean, and free of insects, see id . § 604. Garbage and waste
are required to be disposed of in a manner designed to prevent transmission
of disease. See id. § 605. Outside areas must be maintained so as to minimize
fire hazards, havens for insects and rodents, and unsafe conditions from
accumulations of water, ice, and snow. See id. § 606. |
| [28] | Part VII, "Fire Protection and Prevention," requires clinics
to have particular fire-fighting equipment and an evacuation plan and to
conduct fire drills and inspections. See id.§ 701. |
| [29] | Part VIII, "Design and Construction," requires that each abortion
clinic have facilities for the care of each patient that meet applicable
design and construction laws. See id. §§ 801, 802. New buildings or additions
must satisfy building code requirements. See id. §§ 803, 804. Each facility
must provide an adequate number of examination or procedure rooms, and each
procedure room must have a suitable table and other equipment. See id. §
807(A), (B). Recovery areas must meet particular requirements and there
must be a room for temporary storage of waste, as well as an area to accommodate
sterilization procedures. See id. § 807(E), (F). |
| [30] | Part IX, "Prerequisites for Initial Licensure," sets forth the
necessary documentation for obtaining a license from the DHEC and the certification
that must be acquired for various physical items. |
| [31] | Finally, Part X states that conditions which arise and have not previously
been addressed in the Regulation must be managed in accordance with the
best practices as interpreted by the DHEC. |
| [32] | On June 27, 1996, one day before Regulation 61-12 was to take effect,
the Greenville Women's Clinic, the Charleston Women's Medical Clinic, Inc.,
and Dr. William Lynn (collectively, the "abortion clinics") brought
this action seeking a declaratory judgment that Regulation 61-12 is unconstitutional
on its face because, among other things, it would violate their due process
and equal protection rights, as well as those of their patients. They also
sought an order enjoining enforcement of the Regulation and requesting attorneys
fees and costs pursuant to 42 U.S.C. § 1988. The district court issued a
temporary restraining order on June 19, 1996, which, by consent of the parties,
was converted to a preliminary injunction. Finally, on February 5, 1999,
the district court declared the Regulation invalid in its entirety. The
Greenville Women's Clinic, which has operated in Greenville, South Carolina,
since 1978, has two licensed physicians who perform a combined average of
more than 2,700 abortions per year. The physicians at the clinic testified
that even prior to the promulgation of Regulation 61-12, their clinic operated
in substantial compliance with its requirements. They estimated that the
additional cost of full compliance would be $22.68 per abortion. The district
court found that, prior to the Regulation's promulgation, the cost of an
abortion was between $325 and $480 if the abortion was not complicated and
was performed during the first trimester. The court found that the additional
cost of full compliance for Greenville Women's Clinic would be in the range
of $23-$32 per abortion. |
| [33] | The Charleston Women's Medical Clinic, Inc., which has operated in Charleston,
South Carolina, for about 28 years, performs, on average, more than 2,400
abortions per year. That clinic is operated by a licensed physician and
a licensed practical nurse. The district court found that compliance with
Regulation 61-12 by the Charleston Women's Medical Clinic would cost between
$36 and $75 per abortion. |
| [34] | Dr. William Lynn, who is a licensed physician, has conducted his practice
since 1980 from two locations -- in Beaufort, South Carolina (approximately
70 miles southwest of Charleston) and in Greenville, South Carolina. Dr.
Lynn performs, on average, more than 900 abortions each year at the two
sites. He testified that Regulation 61-12 would require him to undertake
costly modifications to his Beaufort facility, and the district court found
that his cost per abortion would increase by an amount between $116 and
$368. The district court also concluded that the increased costs for Dr.
Lynn's Beaufort facility would "likely force [Dr. Lynn] to cease performing
abortions in his Beaufort office." Greenville Women's Clinic v. Bryant,
66 F. Supp. 2d 691, 717 (D.S.C. 1999). |
| [35] | There was no direct evidence about how many other abortion clinics in
South Carolina would be affected by the Regulation or about the extent of
any such impact. No woman who wanted an abortion or who claimed to be threatened
by Regulation 61-12 was made a party to the action or testified before the
district court, and no survey evidence of women in South Carolina was presented
to demonstrate the likely effect that Regulation 61-12 would have on their
decisions to obtain an abortion. |
| [36] | Following a bench trial, the district court concluded that the Regulation
"serve[s] no legitimate state interest . . . [g]iven the lack of evidence
that the regulation will operate to improve the health care currently being
received in this state." Greenville Women's Clinic, 66 F. Supp. 2d
at 735. It continued that even if it did serve a valid purpose, the Regulation
"places a substantial obstacle in the path of women seeking first trimester
abortions and, thereby, imposes an undue burden on the woman's fundamental
right to choose to undergo the procedure." Id. The undue burden, the
court found, resulted from increased costs, delays in the ability to obtain
abortions, decreased availability of abortion clinics, increased distances
to travel to clinics, unlimited inspections of clinics, and compromises
to patient confidentiality. See id. at 735-36. Accordingly, the court held
that Regulation 61-12 violated women's Fourteenth Amendment due process
rights. See id. at 736. The district court also ruled that the Regulation
violated the abortion clinics' equal protection rights under either a strictscrutiny
or a rational-basis standard of review because the Regulation "singles
out physicians and clinics where abortions are performed regularly . . .
and imposes upon them requirements which are not imposed upon comparable
procedures and not even upon all physicians who perform first trimester
abortions." Id. at 742. Finally, the district court, acting under 42
U.S.C. § 1988, awarded the abortion clinics attorneys fees and costs in
the amount of $324,040. |
| [37] | South Carolina appeals from the district court's judgment declaring Regulation
61-12 unconstitutional and enjoining its enforcement and from the award
of attorneys fees. |
| [38] | II. |
| [39] | South Carolina contends first that the district court's due process analysis
is supported by neither the record nor the law. It maintains that Regulation
61-12, which is based on national healthcare standards for abortions, is
rationally related to protecting the health of women seeking abortions,
"even if such regulations might have the incidental [e]ffect of causing
the price to obtain an abortion to increase." South Carolina notes
that the abortion clinics and their experts agree as to the appropriateness
of the national standards incorporated in the Regulation, and the Greenville
Women's Clinic, the largest of the plaintiffs, admitted that it was already
in substantial compliance with virtually all of the Regulation's requirements.
The State argues that to the extent any clinic does not comply with Regulation
61-12, compliance will improve the quality of medical care for women seeking
abortions. South Carolina also argues that the evidence does not support
the conclusion that the increased cost of an abortion would impose a substantial
obstacle for women in South Carolina seeking abortions. |
| [40] | The abortion clinics respond that the Regulation does not further a valid
state interest because (1) it creates costly and unnecessary requirements
which are more likely to harm than to protect the health of abortion patients
and (2) the DHEC's drafting process indicates that the DHEC was not concerned
with protecting the health of such women. The clinics acknowledge that the
DHEC may have relied on standards and guidelines of national medical groups,
but they argue that these are just that -- standards and guidelines -- and
are neither designed to serve as mandatory directives nor appropriate for
that purpose. Finally, the abortion clinics contend that, in any event,
Regulation 61-12 imposes an undue burden on women seeking abortions in South
Carolina because it would increase the price of abortions and force Dr.
Lynn to cease performing abortions at his Beaufort facility. |
| [41] | The abortion clinics undertook a heavy burden in bringing a facial challenge
to the constitutionality of Regulation 61-12. Because of the nature of facial
challenges, they could not present the district court with a concrete factual
circumstance -- a particular case or controversy -- to which to apply the
Regulation. The clinics therefore must argue about the Regulation's impact
generally and prospectively, the type of action typically undertaken by
legislatures, not courts. Because a trial on a facial challenge can focus
only on arbitrarily selected hypotheticals to which the Regulation might
apply, a court is required to speculate about the Regulation's overall effect. |
| [42] | In this case, for example, the district court was not given -- and could
not be given -- any data from South Carolina patients about the impact that
particular costs had on their decision to seek an abortion. It was given
only estimates by "experts." Accordingly, the impact of the Regulation
in any given situation could only have been anticipated. Such anticipation,
however, is generally not an appropriate basis on which to strike down statutes
and regulations. See Bowen v. Kendrick, 487 U.S. 589, 612-13 (1988) (noting
that "[i]t has not been the Court's practice" to strike down a
statute on a facial challenge "in anticipation" of particular
circumstances, even if the circumstances would amount to a "likelihood"). |
| [43] | Because of the conceptual difficulties that attend to ruling on the constitutionality
of a statute in the abstract, the Supreme Court has held that "[a]
facial challenge to a legislative Act is, of course, the most difficult
challenge to mount successfully, since the challenger must establish that
no set of circumstances exists under which the Act would be valid."
United States v. Salerno, 481 U.S. 739, 745 (1987); see also Rust v. Sullivan,
500 U.S. 173, 183 (1991) (a facial challenge will fail if an act "can
be construed in such a manner that [it] can be applied to a set of individuals
without infringing upon constitutionally protected rights"). |
| [44] | In Planned Parenthood v. Casey, 505 U.S. 833 (1992), the Supreme Court
ruled that a statute regulating abortion was invalid because "in a
large fraction of cases in which [it] is relevant, it will operate as a
substantial obstacle to a woman's choice to undergo an abortion." Id.
at 895 (majority opinion) (emphasis added). Whether this holding displaced
the Salerno standard for facial challenges in abortion cases has been the
subject of considerable debate among the circuits. Compare, e.g., Planned
Parenthood v. Lawall, 180 F.3d 1022, 1025-27 (9th Cir. 1999) (applying Casey
standard to facial challenge to abortion restriction); Women's Med. Prof'l
Corp. v. Voinovich, 130 F.3d 187, 193-96 (6th Cir. 1997) (same); Jane L.
v. Bangerter, 102 F.3d 1112, 1116 (10th Cir. 1996) (same); Planned Parenthood
v. Miller, 63 F.3d 1452, 1456-58 (8th Cir. 1995) (same); Casey v. Planned
Parenthood, 14 F.3d 848, 863 n.21 (3d Cir. 1994) (same), with Barnes v.
Moore, 970 F.2d 12, 14 n.2 (5th Cir. 1992) (per curiam) ("we do not
interpret Casey as having overruled, sub silentio, longstanding Supreme
Court precedent governing challenges to the facial constitutionality of
statutes"); see also Okpalobi v. Foster, 190 F.3d 337, 354 (5th Cir.
1999) (noting that subsequent Fifth Circuit decisions were arguably inconsistent
with application of the Salerno standard). This circuit, sitting en banc,
acknowledged the uncertainty as to which standard applies but declined to
resolve the issue. See Planned Parenthood v. Camblos, 155 F.3d 352, 358-59
& n.1 (4th Cir. 1998) (en banc) ("Because we conclude . . . that
the [challenged abortion regulation] is facially constitutional under either
the Salerno or the Casey standard, we need not, and do not, decide which
of these two standards applies in facial challenges to abortion statutes").
Previously, a panel of this court had stated its agreement with the Fifth
Circuit position in Barnes v. Moore, observing that until the Supreme Court
specifically overrules Salerno in the abortion-regulation context, "this
Court is bound to apply the Salerno standard as it has been repeatedly applied
in the context of other abortion regulations reviewed by the Supreme Court
. . . and in the context of challenges to legislative acts based on other
constitutional grounds." Manning v. Hunt, 119 F.3d 254, 268 n.4 (4th
Cir. 1997) (emphasis added). |
| [45] | While we believe that the observation in Manning was part of the court's
holding because application of Salerno was necessary to the ruling in that
case and not dictum, we add the observation that the logic of the Salerno
test is necessary to show deference to legislatures, particularly in light
of the limitation imposed by Article III of the Constitution that the judiciary
act only in cases and controversies. See U.S. Const. art. III, § 2. As we
explain below, when the abortion clinics are confronted with Salerno's requirement
that no set of circumstances exists under which Regulation 61-12 would be
valid, they fail, if for no other reason, because the impact on the Greenville
Women's Clinic is so modest. Even when we apply a less deferential standard
than that articulated in Salerno, we nevertheless conclude in this case
that the record provides no evidence from which to conclude that Regulation
61-12 would present a "substantial obstacle" to "a large
fraction" of women in South Carolina who might seek an abortion at
a clinic subject to Regulation 61-12. Casey, 505 U.S. at 895 (majority opinion). |
| [46] | The record contains evidence from several abortion providers, only one
of which would be adversely affected in any significant way in providing
abortion services, Dr. Lynn's Beaufort facility. Moreover, even for women
in Beaufort, no evidence suggests that they could not go to the clinic in
Charleston, some 70 miles away. Nor are we provided with evidence of the
impact that Regulation 61-12 would have on other South Carolina abortion
clinics. Thus, inherent in our discussion of the impact that Regulation
61-12 would have on women's abortion rights is the inability to decide a
concrete case; we must speculate about the impact on all relevant women
to determine, under the Casey standard, whether a large fraction would encounter
a substantial obstacle to their choice to seek an abortion, an analysis
that the record simply does not permit. Thus, on the abortion clinics' failure
to present evidence that would satisfy either of the possible standards,
we fall back on the Regulation's presumptive constitutionality. |
| [47] | The principles of the abortion right itself are now well-established.
Beginning in 1973, women were found to have a fundamental right grounded
in the Fourteenth Amendment to end a pregnancy by aborting the life of the
fetus. See Roe v. Wade, 410 U.S. 113, 153-56 (1973); see also Maher v. Roe,
432 U.S. 464, 474 (1977). The Court in Roe stated that the "right of
privacy . . . is broad enough to encompass a woman's decision whether or
not to terminate her pregnancy." Roe, 410 U.S. at 153. |
| [48] | Following Roe, which recognized that the abortion-decision right was not
absolute but subject to some regulation by the states, the Supreme Court
decided numerous cases that uncovered difficulties in applying Roe and created
widespread confusion. Accordingly, in 1992, the Court in Casey reexamined
Roe and restated the applicable principles. In Casey, the Court rejected
the trimester framework of Roe and adopted a revised "undue burden"
standard to apply to challenged abortion regulations. Casey, 505 U.S. at
872-74 (joint opinion of O'Connor, Kennedy, and Souter, JJ.). But it reaffirmed
the "essential holding" of Roe -- that a woman has a constitutional
right to "choose to have an abortion before viability and to obtain
it without undue interference from the State." Id. at 846 (majority
opinion). The scope of this right, however, is framed by the State's "legitimate
interests from the outset of the pregnancy in protecting the health of the
woman and the life of the fetus that may become a child." Id. |
| [49] | Most recently, in Stenberg v. Carhart, 530 U.S. ___, No. 99-830 (U.S.
June 28, 2000), the Supreme Court reaffirmed the principles articulated
in the joint opinion in Casey that: (1) a woman has a constitutional right
"to choose to terminate her pregnancy" before viability of the
fetus; (2) any State law that imposes an"undue burden" on the
woman's right to choose to terminate her pregnancy before fetal viability
is unconstitutional; and (3) a State may regulate postviability abortions
"except where [they are] necessary, in appropriate medical judgment,
for the preservation of the life or health of the mother." 530 U.S.
at ___, No. 99-830, slip op. at 2 (internal quotation marks and citations
omitted). |
| [50] | In preserving the right of a woman to choose to have an abortion, the
Court in Casey emphasized that the right is grounded in the liberty protected
by the Fourteenth Amendment -- "[t]he controlling word in the cases
before us is `liberty.'" 505 U.S. at 846 (majority opinion); see also
id. at 871 (joint opinion of O'Connor, Kennedy, and Souter, JJ.) ("The
woman's right to terminate her pregnancy before viability is . . . a component
of liberty"). And the liberty so recognized is defined as the right
of a woman herself-- not her husband, her parent, her doctor, or others
-- to make the decision to have an abortion. Id. at 877 (joint opinion of
O'Connor, Kennedy, and Souter, JJ.); see also Stenberg, 530 U.S. at ___,
No. 99-830, slip op. at 27. Only when the State unduly burdens the ability
of a woman to make the abortion decision "does the power of the State
reach into the heart of the liberty protected by the Due Process Clause."
Casey, 505 U.S. at 874 (joint opinion of O'Connor, Kennedy, and Souter,
JJ.). |
| [51] | Accordingly, to the extent that state regulations interfere with the woman's
status as the ultimate decisionmaker or try to give the decision to someone
other than the woman, the Court has invalidated them. See Casey, 505 U.S.
at 887-98 (majority opinion) (striking down provision which required a physician
performing an abortion on a married woman to obtain a statement from her
indicating that she had notified her husband); Thornburgh v. American College
of Obstetricians and Gynecologists, 476 U.S. 747, 767 (1986) (invalidating
reporting requirements that "raise the specter of public exposure and
harassment of women who choose to exercise their personal, intensely private,
right, with their physician, to end their pregnancy"); Bellotti v.
Baird, 443 U.S. 622, 643 (1979) (plurality opinion) (ruling that "if
the State decides to require a pregnant minor to obtain one or both parents'
consent to an abortion, it must also provide an alternative procedure whereby
authorization for the abortion can be obtained" (footnote omitted));
Planned Parenthood v. Danforth, 428 U.S. 52, 74 (1976) (holding that "the
State does not have the constitutional authority to give a third party an
absolute, and possibly arbitrary, veto over the decision of the physician
and his patient to terminate the patient's pregnancy"). |
| [52] | On the other hand, state regulations that do not"reach into the heart"
of the protected liberty do not violate the abortion-decision right. Casey,
505 U.S. at 874 (joint opinion of O'Connor, Kennedy, and Souter, JJ.). If
a regulation serves a valid purpose -- "one not designed to strike
at the right itself" -- the fact that it also has "the incidental
effect of making it more difficult or more expensive to procure an abortion
cannot be enough to invalidate it." Id. One such valid purpose is a
State's effort to "further the health or safety of a woman seeking
an abortion." Id. at 878. Of course, if such health regulations are
unnecessary and have the "purpose or effect of presenting a substantial
obstacle to a woman seeking an abortion," they will be found to "impose
an undue burden on the right." Id. |
| [53] | In maintaining the distinction between state regulations that trammel
the woman's right to choose to have an abortion-- those that impose an undue
burden -- and those that merely have an incidental effect on the woman's
decision, the Court has upheld, both before Casey and in Casey, various
regulations, the costs and effects of which, while amounting to interference
and intrusion, did not reach the core of the protected liberty. See, e.g.,
Casey, 505 U.S. at 886 (majority opinion) (upholding 24-hour waiting period
although it would require a woman to make two visits to a doctor and increase
the woman's exposure to abortion protestors); id . at 900-01 (upholding
a recordkeeping and reporting provision that would increase the cost of
some abortions); Webster v. Reproductive Health Services, 492 U.S. 490,
530 (1989) (O'Connor, J., concurring) (regulation requiring medical tests
is constitutional where"the cost of examinations and tests that could
usefully and prudently be performed . . . would only marginally, if at all,
increase the cost of an abortion"); Planned Parenthood v. Ashcroft,
462 U.S. 476, 490, 505 (1983) (upholding requirement for a pathology report
that would impose a "small cost"). Only when the increased cost
of abortion is prohibitive, essentially depriving women of the choice to
have an abortion, has the Court invalidated regulations because they impose
financial burdens. See Akron v. Akron Ctr. for Reproductive Health, 462
U.S. 416, 434-39 (1983) (holding unconstitutional a hospitalization requirement
for certain abortions that more than doubled the cost of such abortions). |
| [54] | In the case before us, the South Carolina legislature directed the DHEC
to promulgate regulations to address medical and safety aspects of providing
abortions, as well as the recordkeeping and administrative practices of
abortion clinics. As directed, the DHEC drafted Regulation 61-12, building
on the existing regulation, which applied to second-trimester abortion clinics,
and consulting abortion regulations from other states. The DHEC also obtained
and incorporated guidelines for outpatient facilities published by the American
Institute of Architects, as well as standards and guidelines issued by the
ACOG, Planned Parenthood, and the National Abortion Federation. Indeed,
Regulation 61-12 largely tracks these medical standards and guidelines. |
| [55] | For example, the National Abortion Federation requires that all medical
staff at member facilities be proficient in CPR, and the ACOG recommends
specific plans for training personnel in CPR; Regulation 61-12 requires
that all professional staff members be certified to perform CPR. See S.C.
Code Ann. Regs. 61-12, § 204(C). The National Abortion Federation recommends
that nursing-care providers receive training and orientation; the Regulation
requires that each facility have and execute a written orientation program.
See id. § 203(E). The ACOG recommends that physicians who perform abortions
in their offices provide for prompt emergency treatment or hospitalization;
the Regulation requires that each facility have an agreement with a doctor
who has hospital admitting privileges. See id. § 205(C)(2). The National
Abortion Federation recommends that a registered nurse or physician be responsible
for a variety of components of the abortion procedure and requires that
a registered nurse monitor recovering patients if general anesthesia has
been used; the Regulation requires that a licensed registered nurse supervise
nursing care. See id. § 205(D)(1). The National Abortion Federation requires
that emergency drugs be kept on hand to treat seven specific conditions;
the Regulation requires the availability of drugs to treat the exact same
conditions. See id. § 303(A)(1). The National Abortion Federation states
that testing for gonorrhea and chlamydia may be routinely provided; the
Regulation requires testing for gonorrhea and chlamydia prior to each abortion
procedure. See id. § 304(C). The ACOG and the National Abortion Federation
recommend that counseling be offered; the Regulation requires that arrangements
be made for consultation. See id. § 307. The ACOG recommends retaining accurate
medical records for each patient for the time period required by law; the
Regulation requires that such records be retained for ten years. See id.
§ 401. The ACOG recommends specific plans and procedures for health and
safety; the Regulation requires written policies and procedures for safety.
See id. § 501. The ACOG recommends that the examining room contain facilities
for sterilization; the Regulation sets out specific sterilization procedures.
See id. § 602. The ACOG recommends procedures for disposing of contaminated
waste supplies; the Regulation requires specific treatment of refuse and
waste disposal. See id. § 605. The ACOG recommends procedures for proper
use of fire equipment, and the National Abortion Federation recommends regular
emergency drills; the Regulation requires firefighting equipment, alarm
systems, and fire drills. See id. § 701. Planned Parenthood requires procedure
rooms large enough to accommodate a stretcher or gurney, post-procedure
recovery rooms, and dressing rooms, and the National Abortion Federation
requires that the operating table be located in a room of adequate dimensions,
illumination, and ventilation; the Regulation requires particular physical
facilities at abortion clinics, such as procedure rooms with doors wide
enough to accommodate a stretcher or wheelchair, recovery rooms, storage
rooms, and a dressing room. See id.§ 807. Planned Parenthood requires a
battery-operated light source for emergency backup; the Regulation requires
emergency power and lighting. See id. § 809. |
| [56] | The national standards promulgated by such medical groups as the ACOG,
the National Abortion Federation, and Planned Parenthood indisputably aim
to protect the health of women seeking abortions and one states explicitly
that it is intended to "serve as a useful resource for local and state
agencies charged with safeguarding the public's health." National Abortion
Federation, Standards for Abortion Care (1998). In relying upon such standards,
the DHEC was appropriately focused on ensuring that abortion is "performed
by medically competent personnel under conditions insuring maximum safety
for the woman." Akron, 462 U.S. at 430 n.12 (quoting Connecticut v.
Menillo, 423 U.S. 9, 11 (1975) (per curiam)). A witness for the abortion
clinics testified that guidelines from organizations such as the ACOG and
the National Abortion Federation "provide our best current assessment
as to what is appropriate care." The witness explained that the ACOG
has "only one interest," the healthcare of women, and if a doctor
"deviate[s] from [the ACOG guidelines and standards] without a documented
reason for [the] deviation, in a court of law it will be construed as malpractice."
The witness recognized that the ACOG's guidelines "are commonly used
and relied upon by obstetricians and gynecologists nationwide to determine
the standard and the appropriate level of care for their patients,"
and that the National Abortion Federation standards are "a distillate
of extensive experience by highly skilled and experienced [abortion] providers." |
| [57] | This testimony on behalf of the abortion clinics should itself be sufficient
to establish that Regulation 61-12 was reasonably designed to promote South
Carolina's valid interest in women's health. But the DHEC was also entitled
to draw support for its use of the standards from the observations made
by the Supreme Court in abortion cases that the ACOG and National Abortion
Federation standards indicate the "general medical utility" of
a particular procedure. Ashcroft, 462 U.S. at 487 n.10; see also Akron,
462 U.S. at 435-37 (relying on changes in the ACOG standards, among others,
to demonstrate lack of justification for hospitalization requirement); Simopoulos
v. Virginia, 462 U.S. 506, 517 (1983) (upholding abortion regulations after
noting that "[o]n their face, the . . . regulations appear to be generally
compatible with accepted medical standards governing outpatient second-trimester
abortions" (citing publications from groups including the ACOG)); see
also Stenberg, 530 U.S. at ___, No. 99-830, slip op. at 18 (discussing the
ACOG's "medical opinion" in analyzing the appropriateness of "[m]edical
treatments and procedures"). Regulation 61-12 thus indisputably represents
a reasonable attempt to further the health of abortion patients in South
Carolina. |
| [58] | The abortion clinics argue that Regulation 61-12 exceeds and, in some
cases, conflicts with the recommendations of these national groups. Further,
they assert that the recommendations are just that -recommendations -- and
that requiring clinics to follow them will not necessarily safeguard or
improve the health of abortion patients. The abortion clinics also note
that some officials of these medical groups do not support mandatory compliance
with the recommendations. |
| [59] | While Regulation 61-12 does in some instances exceed the standards of
the ACOG, Planned Parenthood, and the National Abortion Federation, the
bulk of the provisions comport with those guidelines, and any deviations
are not substantial. Any contrary claim is belied by the abortion clinics'
own testimony in this case. One of the doctors who owns the Greenville Women's
Clinic, when asked whether Regulation 61-12 was "consistent with what
you would consider to be the appropriate standards for abortion practice,"
responded that "[m]ost parts of the regulation we already comply with
and do, but because it's good medical practice." Another abortion-clinic
doctor testified that he complied with a number of the Regulation's provisions
because "any doctor that's licensed by the State of South Carolina
and any doctor that's completed an OB/GYN residency successfully would do
that in the normal operation." The fact that not all healthcare professionals
agree with the adoption of each specific aspect of the Regulation is immaterial
in light of South Carolina's "considerable discretion" in adopting
licensing requirements aimed at the health of women seeking abortions. Simopoulos
, 462 U.S. at 516 ("In view of its interest in protecting the health
of its citizens, the State necessarily has considerable discretion in determining
standards for the licensing of medical facilities"). |
| [60] | Moreover, contrary to the district court's suggestion, see Greenville
Women's Clinic, 66 F. Supp. 2d at 732, there is no requirement that a state
refrain from regulating abortion facilities until a public-health problem
manifests itself. In Danforth, for example, the Court upheld health measures
that "may be helpful" and"can be useful." 428 U.S. at
80, 81. It cannot be gainsaid that a regulation incorporating the recommendations
of the leading institutional authorities in the field of abortion provision
aims to "further the health or safety of a woman seeking an abortion."
Casey, 505 U.S. at 878 (joint opinion of O'Connor, Kennedy, and Souter,
JJ.). Because South Carolina's Regulation 61-12 "appear[s] to be generally
compatible with accepted medical standards governing . . . abortions,"
Simopoulos, 462 U.S. at 517, we cannot reasonably conclude that the Regulation
was not directed at promoting South Carolina's valid interest in a woman's
health. |
| [61] | Even though Regulation 61-12 is directed at the valid objective of safeguarding
the health of women seeking abortions, it may still be invalid if, in serving
this objective, it unduly burdens "a woman's ability to make th[e]
decision" to terminate a pregnancy. Casey, 505 U.S. at 874 (joint opinion
of O'Connor, Kennedy, and Souter, JJ.). Thus, having determined that Regulation
61-12 serves a valid purpose, we must still consider whether the cost imposed
by the lawfully directed regulation presents "a substantial obstacle
to a woman seeking an abortion." Id. at 878. But a regulation is not
rendered invalid simply because it makes it "more difficult or more
expensive to procure an abortion," id. at 874, as "[a]ll abortion
regulations interfere to some degree with a woman's ability to decide whether
to terminate her pregnancy," id. at 875. In making this undue-burden
assessment, the Supreme Court has repeatedly emphasized that the focus must
be aimed more directly at the ability to make a decision to have an abortion
as distinct from the financial cost of procuring an abortion. |
| [62] | The district court found that enforcement of Regulation 61-12 would increase
the cost of obtaining an abortion in varying amounts, depending on the abortion
clinic. The Greenville Women's Clinic, which purports to follow national
medical standards for providing abortions, indicated that it substantially
complies with the requirements of Regulation 61-12 and that full compliance
would cost about $23. At the Charleston Women's Medical Clinic, the cost
increase would be between $36 and $75. On the other hand, Dr. Lynn, who
operates abortion clinics in Beaufort and Greenville, testified that he
would have to make so many changes to his Beaufort facility that compliance
would require him to cease providing abortions at that facility. |
| [63] | The record does not contain information indicating the manner in which
Regulation 61-12 would actually affect any South Carolina woman's decision
to seek an abortion. This is not due to a failure of proof but a problem
inherent in conducting a facial challenge to the Regulation. The most that
the parties could do in a preenforcement case is to speculate about the
Regulation's impact. While they can reasonably forecast some cost increases,
they can only surmise how any cost increase would affect a particular woman's
decision to seek an abortion. |
| [64] | Even accepting the speculative figures relied upon by the district court,
we believe the court erred in concluding that at the two major clinics in
this case -- the Greenville Women's Clinic and the Charleston Women's Medical
clinic -- the impact from the expense of implementing Regulation 61-12 was
unduly burdensome. While the $23-$75 increased cost per abortion due to
compliance might make it "more difficult" and would make it "more
expensive to procure an abortion," there is no evidence that it would
impose an undue burden on "a woman's ability to make th[e] decision
to have an abortion." Casey, 505 U.S. at 874 (joint opinion of O'Connor,
Kennedy, and Souter, JJ.). As to Dr. Lynn's Beaufort clinic, no evidence
suggests that women in Beaufort could not go to the clinic in Charleston,
some 70 miles away. |
| [65] | Both Casey and pre-Casey decisions support the conclusion that predicted
costs to raise medical standards do not amount to an undue burden on a woman's
choice to obtain an abortion. In Casey, the Court considered a mandatory
24-hour waiting period, which the lower court had found would often cause
"a delay of much more than a day because the waiting period requires
that a woman seeking an abortion make at least two visits to the doctor"
and would increase the exposure of women seeking abortions to the "harassment
and hostility of anti-abortion protestors." 505 U.S. at 886 (joint
opinion of O'Connor, Kennedy, and Souter, JJ.). As a result, the lower court
concluded that the State regulation would especially burden women with the
fewest financial resources, who had to travel long distances, and who needed
to explain their absences to their husbands or to others. See id. Yet the
Supreme Court upheld the provision, stating that "on the record before
us, and in the context of this facial challenge, we are not convinced that
the 24-hour waiting period constitutes an undue burden." Id. at 887
(emphasis added). The Casey Court also upheld a recordkeeping and reporting
provision, under which every facility that performed abortions had to file
with the State a detailed report on every abortion, as well as quarterly
statistical data. Because this information was a "vital element of
medical research," it could not "be said that the requirements
serve no purpose other than to make abortions more difficult," even
though the provision "might increase the cost of some abortions by
a slight amount." Id. at 901 (majority opinion). |
| [66] | Similarly, in Ashcroft, the Court upheld a reporting requirement because,
"[o]n its face and in effect," it was reasonably related to accepted
medical standards and constituted common medical practice, 462 U.S. at 487,
505, even though the provision raised the cost of an abortion, see id. at
490. In contrast, the Court in Akron struck down a provision requiring that
all second-trimester abortions be performed in a hospital because the evidence
indicated that the cost of an abortion would double and second-trimester
abortions were "rarely performed" in hospitals. 462 U.S. at 435. |
| [67] | In the case before us, as in Casey, the district court found that the
Regulation would "caus[e] delays in the woman's financial ability to
obtain an abortion" and would "increas[e] the distance a woman
has to travel to obtain an abortion," thereby increasing the cost of
an abortion. 66 F. Supp. 2d at 735. But again, in the context of a facial
challenge and in the absence of any evidence in the record about how the
cost would affect women's ability to make a decision, we conclude that the
clinics have failed to demonstrate that the Regulation places any serious
burden on a woman's ability to make an abortion decision. |
| [68] | Moreover, the increased costs claimed by the three abortion providers
are particularly modest when one considers that their purpose is to protect
the health of women seeking abortions. And there is no evidence that the
ability of any woman to obtain an abortion or to decide to obtain an abortion
would be frustrated by these particularized costs. To conclude that any
of the figures in this case would place an obstacle in the path of a woman's
right to choose to have an abortion would necessitate the formulation of
an arbitrary cost threshold beyond which a price increase may not pass.
This would irrationally hamstring the State's effort to raise the standard
of care in certain abortion clinics, the procedures and facilities of which
do not adequately safeguard the health of their patients, simply because
the clinics' performance falls so far below appropriate norms that the expense
of upgrading their practices and equipment exceeds the arbitrarily defined
amount. |
| [69] | Nor does it unduly burden a woman's right to decide to obtain an abortion
that DHEC officials may inspect abortion clinics and copy necessary documents.
Such inspections ensure compliance with health-care standards, an end which
the copying provision also furthers. See Danforth, 428 U.S. at 79, 81 (noting
that a statute which allowed medical records to "be inspected and health
data acquired by local, state, or national public health officers"
did not have a "legally significant impact or consequence on the abortion
decision or on the physician-patient relationship" (internal quotation
marks omitted)). This is particularly so in view of the Regulation's requirement
that "[a]ll records shall be treated as confidential," thereby
respecting patients' privacy. See id. at 80 (noting that proper respect
for patient's confidentiality was a factor in upholding reporting requirement);
cf. Whalen v. Roe, 429 U.S. 589, 602 & n.29 (1977) ("disclosures
of private medical information to . . . public health agencies are often
an essential part of modern medical practice even when the disclosure may
reflect unfavorably on the character of the patient"). |
| [70] | In short, South Carolina Regulation 61-12 serves a valid purpose, "one
not designed to strike at the right itself," and it is not invalid
simply because it has the incidental effect of making it modestly more difficult
or more expensive to procure an abortion. Casey, 505 U.S. at 874 (joint
opinion of O'Connor, Kennedy, and Souter, JJ.). |
| [71] | III. |
| [72] | South Carolina also contends that the district court erred in finding
that Regulation 61-12 violates the Equal Protection Clause. The Regulation
applies to facilities that perform one second-trimester abortion or five
or more first-trimester abortions per month, but does not apply to facilities
that perform fewer than five abortions per month or that perform no abortions
at all. South Carolina argues that this classification is rationally related
to its interests in regulating those facilities that perform abortions on
a regular basis and notes that an abortion is recognized to be "a unique
act fraught with consequences that go beyond mere medical complications." |
| [73] | The abortion clinics argue that because Regulation 61-12 "targets
abortion providers and their patients, treats them differently than providers
and patients of comparable medical procedures, and directly impacts the
exercise of the right to abortion," we must review the Regulation under
a standard of strict scrutiny. The abortion clinics contend that, under
the strict-scrutiny standard, the Regulation cannot be upheld because it
is not narrowly drawn to protect the health of women seeking abortions since
their safety "is no more or less compelling than the safety of patients
undergoing comparable procedures," which the State does not regulate.
At its essence, the Equal Protection Clause requires that "all persons
similarly situated . . . be treated alike." Cleburne v. Cleburne Living
Ctr., Inc., 473 U.S. 432, 439 (1985); Reed v. Reed, 404 U.S. 71, 77 (1971).
But this directive does not deny States "the power to treat different
classes of persons in different ways." Reed, 404 U.S. at 75. Most regulations
define groups to which they apply or to which benefits are conferred and
when any such group is defined, of necessity, the regulation favors or disadvantages
other groups. See Romer v. Evans, 517 U.S. 620, 631 (1996). To withstand
scrutiny under the Equal Protection Clause, therefore, a classification
generally "must be reasonable, not arbitrary, and must rest upon some
ground of difference having a fair and substantial relation to the object
of the legislation." Reed, 404 U.S. at 76 (internal quotation marks
and citation omitted). If, however, a regulation "impinges upon a fundamental
right protected by the Constitution," Perry Educ. Ass'n v. Perry Local
Educators' Ass'n, 460 U.S. 37, 54 (1983), or"operates to the peculiar
disadvantage of a suspect class," Massachusetts Bd. of Retirement v.
Murgia, 427 U.S. 307, 312 (1976), then the classification will be strictly
scrutinized. While classifications in legislation ordinarily will be upheld
against an equal protection challenge if"there is any reasonably conceivable
state of facts that could provide a rational basis for the classification,"
FCC v. Beach Communications, Inc., 508 U.S. 307, 313 (1993), a regulation
subject to strict scrutiny will be upheld only if it is justified by a compelling
state interest, see Roe, 410 U.S. at 155. |
| [74] | In Roe, the abortion-decision right was found to be fundamental. 410 U.S.
at 154-55, 162-63; see also Maher v. Roe, 432 U.S. 464, 474 (1977). But
following Casey, that conclusion may be in doubt. The Casey decision does
not refer to the abortion-decision right as fundamental and does not apply
the traditional strict-scrutiny standard which protects fundamental rights.
Rather, the Court adopted an "undue burden" standard. Casey, 505
U.S. at 874 (joint opinion of O'Connor, Kennedy, and Souter, JJ.); see also
Stenberg, 530 U.S. at ___, No. 99-830, slip op. at 2. Indeed, any regulation
that does not "strike at the [abortion] right itself" is assessed
by asking not whether it serves a compelling state interest, but whether
it "serves a valid purpose." Casey, 505 U.S. at 874 (joint opinion
of O'Connor, Kennedy, and Souter, JJ.) (emphasis added). The dissenting
opinion by Chief Justice Rehnquist characterizes the joint opinion in Casey
as follows: Roe decided that a woman had a fundamental right to an abortion.
The joint opinion rejects that view. Roe decided that abortion regulations
were subject to "strict scrutiny" and could be justified only
in the light of "compelling State interests." The joint opinion
rejects that view. Id. at 954 (Rehnquist, C.J., dissenting). |
| [75] | But because we have concluded in Part II that South Carolina's Regulation
61-12 does not place an undue burden on a woman's ability to make an abortion
decision, there is no need to resolve whether it remains a fundamental right
for an equal protection analysis and thus requires application of the strict-scrutiny
standard. See Harris v. McRae, 448 U.S. 297, 312, 322 (1980) (having concluded
that a law restricting federal funding for abortion violated no constitutionally
protected right, the Court held it was unnecessary to analyze whether the
law infringed a fundamental right for equal protection purposes). And likewise
the equal protection analysis of a regulation applicable to abortion clinics,
and not other medical clinics, would not be conducted under the strict-scrutiny
standard. No authority exists to support a conclusion that abortion clinics
or abortion providers have a fundamental liberty interest in performing
abortions free from governmental regulation. See, e.g., Birth Control Centers,
Inc. v. Reizen, 743 F.2d 352, 358 (6th Cir. 1984). Moreover, physicians
as a group are not a suspect class. See Attorney Gen. of New York v. Soto-Lopez,
476 U.S. 898, 906 n.6 (1986) (recognizing suspect classifications to include
those based on race, alienage, or national origin). Accordingly, because
we are not considering a regulation that impinges on a fundamental right
or that is directed at a suspect class, we review South Carolina Regulation
61-12 under the Equal Protection Clause by applying a rational-basis standard
to determine whether the Regulation's classification of physicians who perform
one second-trimester abortion or five or more first-trimester abortions
per month is rationally related to a valid governmental purpose. |
| [76] | The rationality of distinguishing between abortion services and other
medical services when regulating physicians or women's healthcare has long
been acknowledged by Supreme Court precedent. Beginning with Roe itself,
the Court recognized not only the special medical interest of the women
seeking abortions but also the State's interest in protecting prenatal life.
See 410 U.S. at 150. The long stream of cases that followed Roe has only
heightened an awareness that for purposes of regulation, abortion services
are rationally distinct from other routine medical services, if for no other
reason than the particular gravitas of the moral, psychological, and familial
aspects of the abortion decision. As the Court in Casey observed: |
| [77] | [T]he abortion decision . . . is more than a philosophic exer cise. Abortion
is a unique act. It is an act fraught with conse quences for others: for
the woman who must live with the implications of her decision; for the persons
who perform and assist in the procedure; for the spouse, family, and soci
ety which must confront the knowledge that these proce dures exist, procedures
some deem nothing short of an act of violence against innocent human life;
and, depending on one's beliefs, for the life or potential life that is
aborted. Casey, 505 U.S. at 852 (majority opinion). |
| [78] | Similarly in Harris, the Supreme Court noted that it was rational for
Congress to authorize federal reimbursement for medical necessities, but
not for medically necessary abortions: "Abortion is inherently different
from other medical procedures, because no other procedure involves the purposeful
termination of a potential life." 448 U.S. at 325 (emphasis added).
And again in Danforth, the Court rejected the argument that "the State
should not be able to impose any recordkeeping requirements [on abortion
providers] that significantly differ from those imposed with respect to
other, and comparable, medical or surgical procedures." 428 U.S. at
80-81. In the same case, the Court applied the identical analysis to uphold
a provision requiring that a woman certify in writing that her consent to
the abortion was freely given and not the result of coercion, "[d]espite
the fact that apparently no other . . . statute . . . requires a patient's
prior written consent to a surgical procedure." Id. at 66-67. |
| [79] | We thus conclude that South Carolina has a rational basis for regulating
abortion clinics while not regulating other healthcare facilities. See Williamson
v. Lee Optical, 348 U.S. 483, 489 (1955) ("The problem of legislative
classification is a perennial one, admitting of no doctrinaire definition.
. . . [T]he reform may take one step at a time, addressing itself to the
phase of the problem which seems most acute to the legislative mind. . .
. The legislature may select one phase of one field and apply a remedy there,
neglecting the others"). |
| [80] | The only question remaining is whether the line drawn by Regulation 61-12
at five abortions per month is rationally related to its purpose of protecting
the health of abortion patients. When it is recognized that the State interest
is in regulating those facilities that are in the business of providing
abortions, drawing the line at those performing five abortions per month
is rational. While anyone could say that it is just as rational to draw
the line at ten abortions per month or three abortions per month, this type
of line-drawing is typically a legislative function and is presumed valid.
See Murgia, 427 U.S. at 314. Indeed, line-drawing of this type is not only
typical of legislation, it is necessary. Thus, the Americans With Disabilities
Act provides that the right to be free from discrimination because of one's
disability is granted to an employee of a company with 15 employees, but
not to an employee of a company with only 14 employees. See 42 U.S.C. §
12111(5)(A). Similarly, Title VII of the Civil Rights Act of 1964 prohibits
discrimination on the basis of race, color, religion, sex, or national origin
by employers with 15 or more employees, but not employers with 14 or fewer
employees. See 42 U.S.C. § 2000e(b). The statute books are filled with similar
examples. See, e.g., the Family and Medical Leave Act, 29 U.S.C. § 2611(2)
(giving rights only to employees employed 12 months or longer); the Comprehensive
Crime Control Act of 1984, 18 U.S.C. § 3559(c)(1) (mandating a sentence
of life imprisonment for persons convicted of three serious violent felonies).
In a similar vein, South Carolina permits persons 16 years or older to obtain
a driver's license, denying a license to persons 15 years or younger. See
S.C. Code § 56-1-40; see also S.C. Const. art. XVII, § 14 (persons 18 years
or older have "full legal rights and responsibilities"). In each
of these instances, persons falling on one side of the line are treated
differently from those on the other. But this result is inherent in legislation.
Under rational-basis review, we need to determine only whether the line
is drawn in a manner that reasonably furthers the legislative concern. |
| [81] | In this case, South Carolina elected to regulate the business of providing
abortions and determined that five per month would distinguish the abortion
clinic from the facility performing abortions incidental to another medical
practice. The selection of this number is reasonably related to the State's
legitimate interest in promoting and protecting the health of women visiting
abortion clinics, and therefore the actual placement of the line is not
a decision that the courts may second-guess. No more than the abortion regulations
examined by the Supreme Court in Danforth and Harris does the South Carolina
regulation before us contravene the limitations of the Equal Protection
Clause. |
| [82] | IV. |
| [83] | It is regrettable that our good colleague in dissent would rule on the
basis that abortion is like any other simple medical procedure that is directed
at injury or disease. Thought of in this way, it is understandable that
he, like the district court, might find many of South Carolina's regulations
unnecessary. Why have inspections, keep records, and minimize the medical
risks for only the abortion procedure, when such a protocol is not mandated
for comparable medical practices addressing injury and disease? But the
importance of the deeply divided societal debate over the morality of abortion
and the weight of the interests implicated by the decision to have an abortion
can hardly be overstated. As humankind is the most gifted of living creatures
and the mystery of human procreation remains one of life's most awesome
events, so it follows that the deliberate interference with the process
of human birth provokes unanswerable questions, unpredictable emotions,
and unintended social and, often, personal consequences beyond simply the
medical ones. |
| [84] | In adopting an array of regulations that treat the often relatively simple
medical procedures of abortion more seriously than other medical procedures,
South Carolina recognizes the importance of the abortion practice while
yet permitting it to continue, as protected by the Supreme Court's cases
on the subject. A woman in South Carolina who has determined to abort the
life of a fetus can do so without significant interference from South Carolina's
regulations and be assured thereby of a dignified and safe procedure. That
these regulations impose a modest cost increase for increased medical safety
and a modest compromise to privacy in the form of inspections and recordkeeping
serves the complex public interests on the subject -- the interests expressed
by both those who favor abortion and those who oppose it. Society's last
word on this subject has not been spoken. But South Carolina's regulations
incidental to the exercise of the abortion right should, in the meantime,
be respected. |
| [85] | V. |
| [86] | Because we reverse the district court's judgment finding Regulation 61-12
unconstitutional, we also reverse the district court's award of attorneys
fees made under 42 U.S.C. § 1988 to the abortion clinics. The clinics are
no longer prevailing parties. See Alexander S. v. Boyd, 113 F.3d 1373, 1388
(4th Cir. 1997); Clark v. Township of Falls, 890 F.2d 625, 626-27 (3d Cir.
1989). |
| [87] | REVERSED |
| [88] | A. |
| [89] | Prior to 1995, the State of South Carolina only required licensing of
physicians' offices or other facilities in which second trimester abortions
were performed. See S.C. Code Ann.§§ 44-41-20(b), -70(b) (Law. Co-op. 1995).
On January 3, 1995, the South Carolina legislature amended Chapter 41 of
Title 44 to require licensing by the South Carolina Department of Health
and Environmental Control (DHEC) of any non-hospital medical facility in
which five or more first trimester abortions are performed in a month. See
id. § 44-41-75(A) (West Supp. 1999). This legislation also required DHEC
to promulgate regulations concerning "sanitation, housekeeping, maintenance,
staff qualifications, emergency equipment and procedures to provide emergency
care, medical records and reports, laboratory, procedure and recovery rooms,
physical plant, quality assurance, infection control, and information on
and access to patient follow-up care necessary to carry out the purposes
of this section." Id. § 44-41-75(B). Pursuant to this enabling legislation,
DHEC promulgated a regulation, entitled "Standards For Licensing Abortion
Clinics," see S.C. Code Ann. Regs. 61-12 (Regulation 61-12), which
sets forth detailed requirements that an abortion clinic*fn1
must comply with in order to obtain and maintain a license to perform abortions. |
| [90] | On June 27, 1996, the day before Regulation 61-12 temporarily went into
effect, Greenville Women's Clinic (GWC) and Charleston Women's Medical Clinic,
Inc. (CWMC), two medical clinics which offer first trimester abortion services
in South Carolina, and Dr. William Lynn (Dr. Lynn), a physician that owns
and operates medical practices in Beaufort and Greenville, South Carolina,
brought this action against Douglas Bryant (Bryant) as the Commissioner
of DHEC, the Governor of the State of South Carolina, and the Attorney General
of the State of South Carolina challenging the constitutionality of Regulation
61-12. On the same day, the plaintiffs filed a motion for a temporary restraining
order, or, in the alternative, for a preliminary injunction. |
| [91] | On July 19, 1996, the district court granted the plaintiffs' motion for
a temporary restraining order and enjoined the defendants from enforcing
Regulation 61-12, pending a hearing on the issuance of a preliminary injunction.
The district court never held a hearing on the issuance of a preliminary
injunction because, prior to the hearing date, the parties agreed to continue
the injunction pending a decision by the district court on the merits. |
| [92] | Following a six day bench trial, the district court, on February 5, 1999,
held that Regulation 61-12 was constitutionally infirm on due process and
equal protection grounds. See Greenville Women's Clinic v. Bryant, 66 F.
Supp. 2d 691, 724-43 (D.S.C. 1999). The district court also held that, in
light of both South Carolina law and the text of Regulation 61-12, Regulation
61-12 was not subject to the doctrine of severability. See id. at 743-44.
On April 13, 1999, the district court awarded the plaintiffs $324,040.61
in costs and attorneys' fees. Bryant and the Attorney General of South Carolina
appeal both the district court's decision on the merits and the order awarding
costs and attorneys' fees. The Governor of South Carolina appeals only the
district court's order awarding costs and attorneys' fees.*fn2 |
| [93] | B. |
| [94] | Located in Greenville, South Carolina, GWC provides gynecological services,
including abortions through fourteen weeks of pregnancy measured from the
pregnant woman's last menstrual period (lmp).*fn3
Drs. Terry Buffkin and Thomas Campbell, two physicians licensed to practice
in South Carolina and board certified in obstetrics and gynecology, own
and operate GWC. On average, GWC performs approximately 2,746 first trimester
abortions per year. |
| [95] | Located in Charleston, South Carolina, CWMC also provides gynecological
services, including abortions through 12.5 weeks of pregnancy measured from
the pregnant woman's lmp. On average, CWMC performs 2,408 first trimester
abortions per year. |
| [96] | Dr. Lynn owns and operates two medical practices, one in Beaufort, South
Carolina, the other in Greenville, South Carolina. Dr. Lynn is licensed
to practice medicine in South Carolina and is board certified in obstetrics
and gynecology. As part of his practice, Dr. Lynn performs abortions through
13.9 weeks of pregnancy measured from the pregnant woman's lmp. On average,
Dr. Lynn performs 407 first trimester abortions per year in his Beaufort
office and 536 first trimester abortions per year in his Greenville office. |
| [97] | All of the abortions performed at GWC, CWMC, and Dr. Lynn's two practices
are first trimester abortions. In fact, there are no abortion providers
in South Carolina who perform elective abortions (those not associated with
medical complications) in the second trimester of pregnancy.*fn4 |
| [98] | The most common first trimester abortion procedure performed by the plaintiffs
is the suction curettage procedure. The suction curettage procedure is also
utilized for spontaneous miscarriages. Although not wholly without risks,
it is undisputed that a suction curettage abortion during the first trimester
of pregnancy is a safe and quick medical procedure performed between six
and fourteen weeks after a woman's lmp.*fn5
It involves dilating the cervix, inserting a suction catheter into the uterus,
and applying suction to remove the contents of the uterus. Although the
patient is usually in the procedure room for a total of ten minutes, the
procedure itself only takes approximately two to five minutes. It involves
no incision and a minimum of bleeding. The procedure is also performed under
general anesthesia or by applying a numbing medicine around the cervix.
After the procedure, patients usually walk to the recovery area, where their
pulse and blood pressure are monitored, and they are checked for any abnormal
bleeding. Possible complications from the suction curettage procedure are
fainting from vasovagal response, uterine perforation, excessive bleeding,
infection, and retained tissue in the uterus. However, while the total complication
rate for the procedure is about one in one hundred, serious complications
are rare. The rate for complications requiring hospitalization is only about
one in 2000. And the mortality rate is one in 100,000, which is about twenty-five
times less risky than carrying a pregnancy to term. There is no evidence
in this case that a first trimester suction curettage abortion has ever
resulted in a woman's death in South Carolina. |
| [99] | Physicians in South Carolina, including Dr. Buffkin and Dr. Campbell,
also perform medical abortions to terminate pregnancies located outside
the uterus (such as in the fallopian tube) during the first six to seven
weeks of pregnancy. A medical abortion is an even safer procedure than the
suction curettage procedure. It involves the performance of a routine blood
test to measure the patient's hormone levels, followed by the injection
of a drug (methotrexate) into the patient's arm. There is no recovery time
after the injection, and only mild vaginal bleeding. Follow-up care consists
of rechecking the patient's hormone levels several days after the injection,
and rechecks thereafter at seven-day intervals. Although currently limited
in use to the termination of ectopic pregnancies, methotrexate and a second
drug, RU486, are currently being used in research protocols for use in terminating
intrauterine pregnancies. |
| [100] | C. |
| [101] | Currently, South Carolina does not require licensing of physicians' offices
outside of the abortion context. Furthermore, physicians licensed to practice
medicine in South Carolina are not subject to DHEC regulation, but rather
are governed by the South Carolina State Board of Medical Examiners. See
S.C. Code Ann. §§ 40-47-5 to 40-47-270 (West Supp. 1999). The State Board
of Medical Examiners handles the examination and licensure of physicians
within South Carolina, complaints against physicians, the suspension and
revocation of licenses when appropriate, and the imposition of civil penalties
and other sanctions against physicians. With the exception of standard building
codes imposed by their particular locales, physicians' offices are not subject
to any mandated design and construction requirements. Notably, unlike abortion
clinics, physicians' offices that do not perform five or more abortions
per month are not subject to the requirements of Regulation 61-12. |
| [102] | Regulation 61-12 is divided into ten "Parts." Part I of Regulation
61-12 sets forth "Definitions" and general"Requirements for
Licensure" of abortion clinics. Part I defines an abortion as "[t]he
use of an instrument, medicine, drug, or other substance or device with
intent to terminate the pregnancy of a woman, known to be pregnant, for
reasons other than to increase the probability of a live birth, to preserve
the life or health of the child after live birth, or to remove a dead fetus."
S.C. Code Ann. Regs. 61-12, § 101(A). Part I defines an abortion clinic
as "[a]ny facility, other than a hospital . . . in which any second
trimester or five or more first trimester abortions per month are performed."
Id. § 101(B). |
| [103] | In order to operate an abortion clinic, the clinic must first obtain a
license from DHEC. See id. § 102(A). Prior to the issuance of a license,
the abortion clinic must undergo a pre-licensure inspection. See id. § 102(F).
Once the initial license is obtained, the abortion clinic must be inspected
annually in order to obtain renewal of the license. See id. §§ 102(F), (H).
In addition, Regulation 61-12 provides that the abortion clinic is subject
to unannounced inspections by DHEC, see id. § 102(F)(1), during which DHEC
inspectors "have access to all properties and areas, objects, records
and reports, and shall have the authority to make photocopies of those documents
required in the course of inspections or investigations." Id. § 102(F)(2). |
| [104] | Upon a determination by DHEC that an abortion clinic is in violation of
"any statutory provision, rule or regulation relating to the operation
or maintenance of such facility," DHEC may deny, suspend, or revoke
the license. Id. § 103. In addition, DHEC may assess a monetary penalty
up to $5,000 for each violation. See id. § 103(F). The amount of a penalty
is based upon the specific provision at issue, which has been preassigned
as either a Class I, II, or III violation, with a Class I violation being
the most serious. See id. |
| [105] | Part II concerns the "Administration and Management" of the
abortion clinic. Section 201 requires an abortion clinic to develop and
implement detailed written policies and procedures for the operation of
the clinic, which must include, at a minimum, policies and procedures to
assure compliance with all federal, state, and local laws which govern the
clinic; the designation of a person to whom responsibility for operation
and maintenance of the abortion clinic is delegated and the establishment
of methods for holding the person responsible; personnel policies and procedures,
including in-service training requirements; a facility-wide quality improvement
program, including statistical summaries and a written plan of implementation;
a policy and procedure for patient rights and grievance procedures; functional
safety and maintenance policies and procedures; a policy and procedure for
incident reporting; and policies and procedures for obtaining informed consent
from the patient. See id. § 201(B). In addition, the abortion clinic's policies
and procedures must include a provision for annual review and evaluation
of the clinic's other policies and procedures, as well as for its management
and operation. See id. |
| [106] | Section 203 requires an abortion clinic to maintain on file all current
policies and procedures concerning the operation of the clinic, memoranda
of agreements and credentialing documentation, a copy of Regulation 61-12,
annual elevator safety inspections, and annual heating, ventilation, and
air conditioning inspection reports. See id. §§ 203(A)-(E). |
| [107] | Section 204 sets forth detailed personnel requirements for each abortion
clinic. The abortion clinic must obtain and verify professional and personal
background information on every employee, see id. § 204(A), and must develop
and implement a written orientation program for new staff members, to include
orientation on the clinic's other policies and procedures, see id. § 204(E).
A formal, in-service training program must also be planned and provided
for all employees and volunteers, and records kept of attendance. See id.
§ 204(F). The in-service training of all employees and volunteers must include
four specified areas--infection control, fire protection, confidentiality
and patient rights, and licensing regulations. See id. Written job descriptions
must be prepared and reviewed annually, see id. § 204(G), and a personnel
file must be maintained on each employee and contain the employee's current
job description that reflects the employee's responsibilities and work assignments,
documentation of the employee's orientation, in-service education, appropriate
licensure (if applicable) and tuberculin skin testing, see id.§ 204(H).
Annually, each employee must have a tuberculin skin test or, if previously
positive, a chest x-ray to determine whether tuberculosis is present. See
id. § 204(B). If tuberculosis is diagnosed, the abortion clinic must provide
treatment and investigate employee contacts. See id. Employees and volunteers
are also banned from working if they have any infected wounds, boils, sores,
acute respiratory infections, or any other contagious disease or illness.
See id.§ 204(D). In addition, all professional and allied health care staff
members must be certified by the American Red Cross or the American Heart
Association as capable of performing CPR, although only one such certified
person must be with patients when they undergo the abortion procedure and
during the recovery period. See id. § 204(C). |
| [108] | Section 205 sets forth requirements for the clinical staff of an abortion
clinic, which encompasses all physicians, nurses, and allied health professionals.
See id. § 205(A). Abortions may only be performed by physicians licensed
to practice medicine in South Carolina and who are also "properly qualified
by training and experience to perform pregnancy termination procedures."
See id. § 205(C). The abortion clinic must also obtain and maintain signed,
written agreements with at least one physician board certified in obstetrics
and gynecology who has admitting privileges at a local hospital which provides
obstetrical and gynecological services. See id. All nursing care is required
to be under the supervision of a registered nurse licensed in the State
of South Carolina, regardless of the presence of a physician in the abortion
clinic, and the registered nurse must be "on duty to provide or supervise
all nursing care" during preparation, the procedure, recovery, and
discharge. Id.§ 205(D). Licensed practical nurses may be employed so long
as they work under the supervision and direction of a registered nurse.
See id.§ 205(E). Ultrasounds may only be conducted by physicians or ultrasound
technicians who have documented evidence of completion of a training course
in ultrasonography. See id. § 205(F). Finally, the entire clinical staff
must participate in quarterly meetings to review and analyze clinical experiences,
and minutes must be kept and maintained of each meeting. See id. § 205(B). |
| [109] | Section 209 requires an abortion clinic to "have written policies
and procedures to assure the individual patient the right to dignity, privacy,
safety, and to register complaints with[DHEC]." Id. § 209(A). A copy
of the patient's rights must be conspicuously displayed, and a copy must
be signed by each patient and included in the patient's medical record.
See id. § 209(B). |
| [110] | Part III of Regulation 61-12 sets forth requirements for "Patient
Care." Additional "patient care policies and procedures designed
to ensure professional and safe care for patients" must be developed,
id. § 301, and must include, but are not limited to, policies and procedures
for admission criteria; physician and nurse responsibilities; details regarding
the pre-operative procedures (including history and physical examinations,
special examinations, lab procedures and consultations which will be required,
and ultrasonography procedures); details regarding the actual abortion procedure
(including the use of IVs, fluids, analgesia, anesthesia, and tissue examination
and disposal); details regarding post-procedure care and recovery room care,
including emergency care; provisions for education of the patient, family
and others, as appropriate in pre- and post-procedure care; plans for follow-up
care, including arrangements for a post-operative visit and specific instructions
in the event of an emergency; procedures for the management and referral
of high-risk conditions; procedures for the transfer of patients when needed;
procedures for infection control and sanitation (including duties and responsibilities
of an infection control committee which are, in turn, charged with the responsibility
of developing and implementing specific patient care and administrative
policies to investigate, control, and prevent infections in the clinic);
and procedures for the registration of fetal death or death certificates.
See id. §§ 301(A)-(K). |
| [111] | Section 303 of Regulation 61-12 relates to an abortion clinic's pharmaceutical
services. Section 303 requires every abortion clinic to maintain an emergency
supply of drugs and medicines to treat, at a minimum, the following conditions:
(1) cardiac arrest; (2) seizure; (3) asthmatic attack; (4) allergic reaction;
(5) narcotic toxicity; (6) hypovolemic shock; and (7) vasovagal shock. See
id. § 303(A). In addition, Section 303 mandates that the medicines must
be prepared in an area that contains a sink and a counter. See id. § 303(D). |
| [112] | Section 304 requires laboratory services to be performed in compliance
with the requirements already mandated by the Clinical Laboratory Improvement
Amendments of 1988 (CLIA-88), 42 U.S.C. § 263a.*fn6
See S.C. Code Ann. Regs. 61-12, § 304(A). It further requires the physician
to perform a urine pregnancy test (unless fetal heart beats or movements
are identified on physical examination), a urinalysis which includes albumin
and glucose examination, and a hematocrit or hemoglobin test. See id. §
304(B). In addition, the physician must perform a test to determine Rh factor.
See id. If the patient is Rh positive, an additional Du variant test is
required. See id. Rh(D) immune globulin must be administered if the patient
is determined to be Rh negative. See id. Testing for chlamydia and gonorrhea
is mandatory, while testing for syphilis serology and performance of a Papanicolaou
(pap) smear must be offered to the patient. See id. § 304(C). |
| [113] | Section 305 provides additional requirements for emergency care. It requires
that "[a]ll staff and/or consulting physicians" have admitting
privileges at one or more local hospitals that provide appropriate obstetrical/gynecological
services or have in place documented arrangements approved by DHEC for the
transfer of emergency cases when hospitalization becomes necessary. Id.§
305(A). The abortion clinic must maintain equipment and services to render
emergency resuscitative and life-support procedures pending transfer. See
id. § 305(B). And the abortion clinic must notify, in writing, the local
ambulance service of the location of the clinic and the nature of the medical
problems which may result from abortions. See id. § 305(C). |
| [114] | Section 306 requires an abortion clinic to purchase and maintain specific
equipment and supplies, including such items as "[a] bed or recliner
suitable for recovery," oxygen, mechanical suction, resuscitative equipment,
emergency medications and intravenous fluids, "[a] clock with a sweep
second hand," sterile suturing equipment and supplies, an adjustable
examination light, and soiled linen and waste containers. Id. §§ 306(A)-(I). |
| [115] | Section 307 requires an abortion clinic to make"[a]rrangements .
. . for consultation or referral services in the specialties of obstetrics/gynecology,
anesthesiology, surgery, psychiatry, psychology, clinical pathology and
pathology, clergy, and social services, as well as any other indicated field,
to be available as needed." Id. § 307. |
| [116] | Section 308, entitled "Quality Improvement," mandates a written
plan for a quality improvement program for patient care and designation
of an individual responsible for coordinating the program. See id. § 308(A).
Specific requirements include ongoing monitoring and evaluation of "patient
care services, staffing, infection prevention and control, housekeeping,
sanitation, safety, maintenance of physical plant and equipment, patient
care statistics, and discharge planning services." Id. § 308(B). Evaluation
of patient care is required to be "criteria-based, so that certain
actions are taken or triggered when specific quantified, predetermined levels
of outcomes or potential problems are identified." Id. § 308(C). The
process must incorporate a quarterly review of a minimum of five percent
of the medical records per quarter, but not less than five records per quarter
shall be reviewed, see id. § 308(D), and must include a means of obtaining
input from families of patients if they are "involved in the care and
services provided by the facility." Id.§ 308(E). The abortion clinic
administrator must review the findings of the program and ensure corrective
actions are taken. See id. § 308(F). The program must also identify and
establish indicators of quality care, specific to the abortion clinic, that
must be monitored and evaluated. See id. § 308(G). Annual review of the
results is also required. See id. § 308(H). |
| [117] | Part IV of Regulation 61-12 sets forth requirements for "Medical
Records and Reports." Section 401 begins by setting forth detailed
requirements for the preparation and maintenance of medical records, which
must include, at a minimum, twenty categories of information. See id. §
401. Section 401 requires a face sheet with patient identification data,
including but not limited to, the patient's name, address, telephone number,
social security number, date of birth, the father and mother's name if the
patient is a minor, the husband's name, and the name, address, and telephone
number of a person to be notified in the event of an emergency. See id.
§ 401(A)(1). The records are required to be kept confidential by the abortion
clinic (although no such requirement is imposed upon DHEC inspectors who
obtain them) and must be stored for a minimum of ten years. See id. § 402. |
| [118] | Section 403 requires the preparation of additional reports, including
a record of every accident or incident occurring in the abortion clinic
which involves patients, staff, or visitors. See id. § 403(B). If it results
in serious injury, the accident or incident must be selfreported to DHEC.
See id. Serious injuries"include, but are not limited to," accidents
and incidents that lead to hospitalization or death (other than of a fetus)
and adverse drug reactions. Id. |
| [119] | Part V of Regulation 61-12, entitled "Functional Safety and Maintenance,"
requires additional policies and procedures, including, but not limited
to, safety rules and practices for personnel, equipment, gases, liquids,
drugs, supplies, and services; provisions for investigating accidents on
the premises; provisions for disseminating safetyrelated information to
employees and users of the abortion clinic; provisions for syringe and needle
handling and storage; and provisions for managing infectious waste in accordance
with another DHEC regulation already governing such matters. See id. §§
501(A)-(B). In addition, the abortion clinic must prepare and post a disaster
preparedness plan for evacuation in the event of a fire or other emergency.
See id. § 502(A). All parts and portions of the abortion clinic are generically
required to be kept "in good repair and operating condition,"
and "free of hazards." Id.§ 503(A). In addition, "[a]ll wooden
surfaces shall be sealed with a non-lead based paint, lacquer, varnish,
or shellac that will allow sanitization." Id. A written preventive
maintenance program must be developed and implemented for patient monitoring
equipment and tested in accordance with manufacturer's specifications, but
not less than annually. See id. § 503(B). Records of maintenance and testing
must be kept. See id. |
| [120] | Part VI of Regulation 61-12 is entitled "Infection Control and Sanitation."
Part VI requires policies and procedures be established in writing to assure
safe and aseptic treatment and protection of all patients and personnel
against cross-infection. See id. § 601(A). Part VI also sets forth specific
requirements for sterilization, including daily testing of the autoclave
and a log of results, as well as periodic calibration and preventative maintenance
as necessary, but not less than annually. See id. §§ 602(B)-(C). This part
of Regulation 61-12 also requires that the abortion clinic "be kept
neat, clean, and free from odors," id. § 604(A), mandates specific
requirements for cleaning methods to be used and prohibits others, and imposes
requirements for refuse and waste disposal, see id.§§ 604(A)-(C), 605. Section
606 requires that "[a]ll outside areas, grounds and/or adjacent buildings
shall be kept free of rubbish, grass, and weeds that may serve as a fire
hazard or as a haven for insects, rodents and other pests," and that
all "[o]utside stairs, walkways, ramps and porches shall be maintained
free from accumulations of water, ice, snow, and other impediments."
Id. § 606. |
| [121] | Part VII of Regulation 61-12, entitled "Fire Protection and Prevention,"
provides detailed requirements for fire-fighting equipment and systems,
an evacuation plan, training of employees in the evacuation plan, mandatory
fire drills at least once every three months, maintenance of fire equipment,
and maintenance of records proving compliance with the provisions. See id.
§§ 701-03. |
| [122] | Part VIII of Regulation 61-12 sets forth detailed requirements for the
"Design and Construction" of abortion clinics. There is no grandfathering
provision (unlike other DHEC regulations governing medical and patient care
facilities)--rather, all abortion clinics must be in full compliance within
two years. See id.§ 804. The requirements are set forth in detail, rendering
a summary of them unproductive. Of note, Part VIII governs the number and
size of procedure and recovery rooms, specifies the design and equipment
required in toilet rooms, regulates the direction of the air flow within
the sterilization rooms, mandates a minimum width for doors and corridors,
sets forth specific requirements for heating and air conditioning (the unit
must be capable of maintaining a temperature between seventy-two and seventy-six
degrees), regulates the abortion clinic's air supply and exhaust, regulates
design criteria for abortion clinic entrances, sets forth specific requirements
for the janitor's closets, and specifies the corridor glazing materials,
wall finishes, wall bases, and interior finish materials that must be present.
See id.§§ 807(A)-(Y). Part IX of Regulation 61-12 sets forth additional"Prerequisites
for Initial Licensure" of the abortion clinic, including plan and construction
approval by DHEC, and specifies the documentation required to be submitted
with the abortion clinic's initial application for licensure. See id. Part
IX(A)-(B). Part X of Regulation 61-12, entitled "General," states
in its entirety that "[c]onditions arising that have not been addressed
in these regulations shall be managed in accordance with the best practices
as interpreted by the Department." Id. Part X. |
| [123] | D. |
| [124] | As noted earlier, prior to 1995, the State of South Carolina only required
licensing of physicians' offices or other facilities in which second trimester
abortions were performed. See S.C. Ann. §§ 44-41-20(b), -70(b) (Law. Co-op.
1995). Effective, January 3, 1995, Chapter 41 of Title 44 was amended as
follows: |
| [125] | (A) A facility in which any second trimester or five or more first trimester
abortions are performed in a month must be licensed by [DHEC] to operate
as an abortion clinic and must comply with the provisions of Article 3 [the
Woman's Right to Know Act]. |
| [126] | (B) The department shall promulgate regulations concern ing sanitation,
housekeeping, maintenance, staff quali fications, emergency equipment and
procedures to provide emergency care, medical records and reports, laboratory,
procedure and recovery rooms, physical plant, quality assurance, infection
control, and infor mation on and access to patient follow-up care neces
sary to carry out the purposes of this section. Id. § 44-41-75 (West Supp.
1999). |
| [127] | Pursuant to this enabling legislation, DHEC promulgated Regulation 61-12. |
| [128] | After the legislation requiring licensure of abortion clinics was passed,
Alan Samuels (Samuels) of DHEC was charged with the responsibility for supervising
the drafting and promulgation of Regulation 61-12. Although Samuels has
some experience in health care administration, he has received no formal
medical training or education. Upon completion of his college education,
Samuels served in the United States Army for twenty-four years, where he
served with the adjutant general corps and the medical services corps as
a personnel officer and hospital inspector. After leaving military service,
Samuels began employment with DHEC, where his duties consisted of inspecting
various types of health care facilities for compliance with existing regulations.
He was eventually promoted to the position of director of DHEC's Health
Licensing Division, and now is retired. |
| [129] | Although Samuels provided some input and edits during the drafting process,
he did not personally draft any portions of Regulation 61-12. Rather, he
delegated the primary drafting responsibility to George Moore (Moore), who
was the Director of Outpatient and Home Care within DHEC's Division of Health
Licensing. Samuels testified that, when Regulation 61-12 was promulgated,
he knew very little about abortion procedures or the differences between
first trimester and second trimester abortions. The record reflects that
Samuels conducted no meaningful study or research into the differences between
a first and second trimester abortion, and conducted no meaningful inquiry
into what regulatory requirements were appropriate for facilities performing
only first trimester abortions. |
| [130] | Like Samuels, Moore has some education and experience with hospital administration,
but has received no formal medical training or education. After receiving
an undergraduate degree, Moore joined the United States Army where he served
twenty-five years. He spent the early part of his service in the adjutant
general corps performing general administrative duties, after which time
he transferred to the medical services corps where he performed administrative
duties associated with health care facilities and hospitals. During his
service, Moore received a master's degree in hospital administration. Upon
his retirement from military service in 1988, Moore began employment with
DHEC, inspecting hospitals and nursing homes for compliance with existing
regulations. He was later promoted to Director of Outpatient and Home Care
within the Division of Health Licensing, the position he held when Samuels
asked him to assume primary responsibility for the drafting of Regulation
61-12. |
| [131] | In preparation for drafting Regulation 61-12, however, Moore took no meaningful
steps to educate himself about first trimester abortions, how they differed
from second trimester abortions, or what requirements would be appropriate
for a facility which performed only first trimester abortions. |
| [132] | For assistance with Parts VII and VIII of Regulation 61-12, Moore turned
to William Lafferty (Lafferty), who was the Director of Health Facilities
Construction with DHEC. Like Samuels and Moore, Lafferty has received no
formal medical training or education. In drafting these portions of the
regulations, Lafferty made no effort to determine whether the requirements
were medically appropriate for facilities performing only first trimester
abortions. Lafferty also approached the design and construction requirements
from the standpoint of new construction requirements and anticipated that
existing facilities would be grandfathered. The decision to include a mandatory
two-year compliance provision in that portion of Regulation 61-12 instead
of a grandfather provision was not made by Lafferty. |
| [133] | According to Moore, the pre-existing South Carolina regulation governing
second trimester abortions was utilized as a starting point for the new
regulation, and many of the additional provisions of Regulation 61-12 were
simply adopted or derived from DHEC regulations governing other types of
health care facilities. They included regulations governing ambulatory surgical
centers, renal dialysis facilities, community residential care facilities,
day care facilities for adults, outpatient facilities for chemically dependent
persons, habitation centers for the mentally retarded, residential treatment
facilities for children and adolescents, nursing homes, and facilities providing
home health care and hospice services. According to the DHEC officials,
DHEC sought to standardize its regulations governing medical facilities
and medical care so that the licensing requirements would have consistent
wording, and to codify existing departmental practices. According to the
DHEC officials, this attempt to standardize its regulations and to codify
existing practices included DHEC's desire to grant its inspectors the authority
to copy medical records in all medical facilities. According to Moore, departmental
practice currently allows the copying of medical records during a complaint
investigation. Moreover, Moore testified that DHEC would maintain the confidentiality
of the records even though there is no provision in Regulation 61-12 that
mandates such confidentiality.*fn7 |
| [134] | Although the DHEC officials testified that they primarily utilized existing
South Carolina regulations as the basis for drafting Regulation 61-12, there
is evidence in the record that the DHEC officials consulted other points
of reference. First, Moore obtained copies of abortion regulations from
North Carolina and Tennessee, though he did not speak with anyone in those
states about the regulations or how they had affected maternal health. Second,
Moore reviewed standards and guidelines issued by the Planned Parenthood
Federation of America, Inc. (Planned Parenthood), the National Abortion
Federation (NAF), and the American College of Obstetricians and Gynecologists
(ACOG). The standards and guidelines published by Planned Parenthood, NAF,
and ACOG are not mandated standards of care which can or should be imposed
on licensed physicians. Rather, they are guidelines which should be followed
with due regard for the medical judgment of the treating physician and the
special needs of the patients that they serve. |
| [135] | During the drafting process, the general counsel of ACOG wrote a letter
to DHEC expressing concern that the requirements of Regulation 61-12 would
not enhance patient well-being or safety and offering DHEC the assistance
of ACOG in the drafting of an appropriate regulation. The DHEC drafters
declined ACOG's assistance. |
| [136] | After an initial draft of Regulation 61-12 was completed, Moore requested
limited input and comments from two medical personnel associated with DHEC.
The first, Dr. Richard Goodrich (Dr. Goodrich), is a licensed physician,
board certified in obstetrics and gynecology, who practiced in Zanesville,
Ohio until he retired. After his retirement, he moved to South Carolina
and became a consultant with DHEC in the area of maternal and child health. |
| [137] | During his medical practice, however, Dr. Goodrich performed only two
abortions, both of which were due to medical complications. Furthermore,
Dr. Goodrich was not asked to and did not draft any portion of Regulation
61-12. Rather, he was only asked to review discrete portions of the regulation
dealing exclusively with medical events and medical testing, and he conducted
no review of and provided no input on the majority of the regulatory requirements.
Although he is of the opinion that the portions of Regulation 61-12 that
he reviewed are appropriate medical standards of care, he testified that
the same standards would be appropriate for physicians' offices in which
comparable obstetrical and gynecological surgical procedures are performed.
Dr. Goodrich further testified that he did not recommend Regulation 61-12's
requirement of physician qualifications beyond state licensure, and acknowledged
that he did not know how the required"training and experience"
qualifications could be determined under the regulation. Dr. Goodrich also
interpreted Regulation 61-12's requirement that a registered nurse be "on
duty" as requiring that a registered nurse have ultimate responsibility,
and not that a registered nurse should or needs to be on the premises at
all times. Dr. Goodrich further testified that, while he has no specific
experience with medical abortions, it would not be his intent to cover the
provision of medical abortions under the regulation. He acknowledged, however,
that the regulation as drafted would in fact cover such abortions. Finally,
Dr. Goodrich testified that he is aware of no existing problem with abortion
providers in South Carolina and has no opinion as to how the cost and availability
of abortions affect women's health issues. |
| [138] | Moore also sought some limited input from Robert Lawyer, R.N. (Lawyer),
who was Director of Nursing for DHEC. Lawyer received his bachelor of science
degree in nursing while in the United States Army, and later received a
masters degree in health services management and business administration. |
| [139] | He has some experience with providing nursing care for first and second
trimester abortions performed in a military hospital. After retiring from
the Army in 1989, Lawyer began working with DHEC. He is currently nurse
manager with the Division of Health Licensing, where his primary duty is
the inspection of various health care facilities for compliance with existing
regulations. He too was asked by Moore and Samuels to review and provide
input concerning discrete portions of Regulation 61-12, primarily those
governing nursing care. Lawyer is of the opinion that, for first trimester
abortions, a registered nurse should either personally monitor the patient
or supervise all patient care, unless the physician is present in the abortion
clinic and available to come to the recovery room if necessary. Unlike Dr.
Goodrich, however, he interprets Regulation 61-12 as requiring the "on
duty" registered nurse to be on the premises. In formulating his opinion,
Lawyer did not conduct any research on abortion practices in South Carolina,
nor did he consult with nursing professionals who specialize in abortion
procedures. Lawyer testified that while he is aware that Regulation 61-12
would apply to facilities performing only medical abortions, he has no knowledge
of what nursing skills are required in the context of medical abortions
or whether they would require a registered nurse as opposed to a licensed
practical nurse. |
| [140] | With the exception of these limited consultations with medical personnel
associated with DHEC, the drafters of Regulation 61-12 did not seek any
input from medical professionals during the drafting process and rejected
ACOG's offer of assistance. As some support for the text of Regulation 61-12,
the defendants contend that the drafters conducted an inspection of Planned
Parenthood's abortion clinic in Columbia, South Carolina and determined
that the clinic met the great majority of Regulation 61-12's requirements.
The evidence credited by the district court, however, reveals that the drafters
simply toured the clinic and, during one such visit, may have spoken briefly
to a Planned Parenthood physician. There is no evidence that the physician
was asked to comment upon the regulatory requirements or whether they were
medically necessary for first trimester abortions. Moreover, there is no
evidence in the record to support a finding that DHEC received any meaningful
input from Planned Parenthood physicians prior to or during the early stages
of the drafting process. |
| [141] | After the initial drafting process was concluded, DHEC issued a proposed
regulation and held public hearings as mandated by South Carolina law. Some
of the suggestions made during this public comment period resulted in changes
to Regulation 61-12, including some suggestions made by Planned Parenthood
and the plaintiffs in this case. |
| [142] | On January 23, 1996, DHEC submitted Regulation 61-12 to the South Carolina
legislature for approval as required by South Carolina law. Because the
legislature took no action on Regulation 61-12 within 120 days after its
submission, it became effective automatically upon publication in the State
Register on June 28, 1996. |
| [143] | E. |
| [144] | Based on the evidence presented at trial, the district court made detailed
findings concerning Regulation 61-12 and its probable effect on the health
of women in South Carolina, the cost of obtaining a first trimester abortion
in South Carolina, and the availability for obtaining a first trimester
abortion in South Carolina. First, based on the evidence in the record,
the district court found that the first trimester suction curettage abortion
is one of the safest surgical procedures that can be performed. The procedure
lasts approximately two to five minutes and has a low overall complication
rate. Suction curettage abortions can be, and are currently being, safely
performed in physicians' offices and outpatient clinics, except where the
patient has particular medical conditions that would require the procedure
to be performed in an ambulatory surgical center or hospital. Medical abortions
are also quick medical procedures that can be safely performed in a physician's
office or outpatient clinic. See Greenville Women's Clinic, 66 F. Supp.
2d at 718. |
| [145] | Second, the district court found that physicians' offices and clinics
that provide less than five first trimester abortions per month perform
identical procedures to those which provide five or more first trimester
abortions per month, and the risk to the patient undergoing the abortion
procedure is identical. See id. |
| [146] | Third, the district court found that first trimester suction curettage
abortions are comparable in terms of risks, duration, and invasiveness to
a variety of obstetrical and gynecological surgical procedures which are
frequently performed in physicians' offices in South Carolina. These would
include suction curettage procedures performed on women who have experienced
an incomplete spontaneous abortion, dilation and curettage procedures, endometrial
biopsies, hysteroscopies, and insertion of intrauterine devices for birth
control. See id. |
| [147] | Fourth, the district court found that first trimester suction curettage
abortions are also comparable in terms of risks, duration, and invasiveness
to a variety of non-obstetrical/gynecological surgical procedures that are
frequently performed in physicians' offices in South Carolina. These would
include the removal of subcutaneous lipomas and cysts, minor breast biopsies,
and the removal of implanted ports and catheters which have been inserted
into large veins in the neck and collarbone region for use in administering
chemotherapy and dialysis. See id. |
| [148] | Fifth, the district court found that South Carolina is not currently experiencing
a public health problem related to the provision of first trimester abortions
by licensed physicians, nor was the state experiencing such a problem when
Regulation 61-12 was promulgated. The district court found no evidence that
the plaintiffs or any other abortion providers in South Carolina are providing
inadequate care to women seeking abortions or that the rate of complications
from abortions performed in South Carolina is greater than the national
average. On the contrary, the district court found that South Carolina has
experienced a similar, if not lower, average complication rate. See id.
at 718-19. |
| [149] | Sixth, the district court found that, although the principal draftsmen
of Regulation 61-12 have some expertise in hospital and health care administration,
they have no training or education in the provision of hands-on medical
care and little knowledge of the medical needs of women seeking first trimester
abortions in South Carolina. See id. at 719. The district court found that
they engaged in virtually no research, investigation, or other efforts to
determine what types of requirements would be necessary or advisable for
the abortion procedure, or what types of requirements would further or hinder
the state's interest in maternal health. Nor did DHEC officials possess
or seek information concerning the present safety of first trimester abortions
or the relative risks associated with the procedure. See id. |
| [150] | Seventh, the district court found that, despite their admitted lack of
medical knowledge in general and of abortion procedures in particular, the
drafters of Regulation 61-12 sought only minimal input and assistance from
knowledgeable medical experts during the drafting process, choosing to rely
solely upon the limited review and advice of Dr. Goodrich and Lawyer as
to discrete portions of the regulation. See id. Furthermore, DHEC either
rejected or ignored an offer by ACOG to assist in the drafting process.
Although DHEC was under no legal obligation to consult with ACOG or to accept
their assistance during the drafting process, the district court found that
ACOG is unanimously considered to be a well-respected medical organization
dedicated to improving the standard of health care in the field of obstetrics
and gynecology. See id. According to the district court, DHEC's rejection
of ACOG's assistance further demonstrated DHEC's lack of interest in ensuring
that Regulation 61-12 actually met the proffered goal of promoting maternal
health and is consistent with the testimony of the DHEC witnesses that such
a goal was not their primary motivation during the drafting process. See
id. |
| [151] | Eighth, the district court found that, although it is uncontroverted that
first trimester abortions are significantly less risky to the health of
women than second trimester abortions, an existing South Carolina regulation
governing second trimester abortions was utilized as a starting point for
Regulation 61-12. With the exception of Section 309 of Regulation 61-12
which specifically pertains to second trimester abortions,*fn8
the DHEC drafters drew no distinction between first and second trimester
abortions in the text of the regulation. In addition, the DHEC drafters
admitted that virtually no such distinctions were considered during the
drafting process. See id. |
| [152] | Ninth, the district court found that, instead of attempting to tailor
Regulation 61-12 to the particularized medical needs of women seeking first
trimester abortion services in South Carolina, DHEC's goal during the drafting
process was to standardize its health care and facility regulations and
to codify existing departmental practices. See id. at 719-20. According
to the district court, to the extent this was done, it was done without
any meaningful inquiry or assessment as to whether the requirements would
further the state's interest in maternal health and without assessing whether
first trimester abortions were comparable to the procedures performed in
the other facilities regulated by DHEC. See id. at 720. The district court
further found that clinics that provide first trimester abortions provide
services that are significantly less risky, invasive, and lengthy than the
services offered in ambulatory surgical centers, yet many of the requirements
of Regulation 61-12 are as stringent, or in some respects more stringent,
than those imposed upon ambulatory surgical centers.*fn9
See id. |
| [153] | Tenth, the district court found that Planned Parenthood, NAF, and ACOG
standards and guidelines relied upon in part by DHEC are recommendations
by the respective organizations and are not fairly characterized as mandated
standards of care which can or should be imposed upon licensed physicians
as regulatory requirements. Rather, they are guidelines which should be
followed with due regard for the medical judgment of the treating physicians
and the special needs of the patients they serve. Even if some of the existing
guidelines could, in isolation, be appropriate matters for regulation, the
district court found that Regulation 61-12 imposes requirements which greatly
exceed the guidelines. See id. |
| [154] | Eleventh, the district court found that, in imposing the detailed requirements
of Regulation 61-12, the DHEC drafters also failed to take any meaningful
steps to evaluate the costs of compliance or its impact upon the availability
of abortion services in South Carolina. See id. Based upon the evidence
presented, the district court found that Regulation 61-12 will significantly
increase the cost of abortion services in South Carolina. See id. The district
court found that this increase in the cost of abortion services will delay
a significant number of women from obtaining the procedure and, in some
cases, result in their inability to obtain the procedure. See id. The district
court further found that, as a pregnancy advances, the medical risks associated
with abortion increase, and a full term pregnancy and childbirth is much
more risky to the physical health of a woman than a first trimester abortion.
See id. |
| [155] | Twelfth, the district court found that Regulation 61-12 contained a myriad
of detailed and costly provisions that were medically unnecessary and, thus,
were neither designed to further the health of women seeking first trimester
abortions nor likely to accomplish this goal. For example, with respect
to Part I of Regulation 61-12, the district court observed that its definition
of an "abortion" included medical abortions currently used to
terminate ectopic pregnancies. See id. at 721. However, all of the evidence
in the record, including the testimony of Dr. Goodrich, suggested that Regulation
61-12's stringent requirements were medically unnecessary for a physician
or abortion clinic that performed only medical abortions. |
| [156] | With respect to Part II, the district court found that this portion of
Regulation 61-12 is permeated with unnecessary requirements governing physician
qualifications, staffing, and staff training. See id. The district court
observed that Regulation 61-12 requires physicians and clinics to hire a
registered nurse to supervise all nursing care in the abortion clinic regardless
of the fact that a licensed physician is present in the clinic to supervise
all medical care, including nursing care. See id. The district court found
that it is within accepted medical practice, both within the abortion context
and in physicians' offices performing comparable surgical procedures, for
a physician to hire licensed practical nurses (who command a lower salary
than registered nurses) so long as they act under the supervision of the
attending physician. See id. The district court found that the defendants
offered no persuasive reason why a physician could not supervise the nursing
care of patients during the recovery process simply because the physician
may be in another room for a brief period of time. See id. In making this
finding, the district court recognized that even DHEC's own medical consultant,
Dr. Goodrich, opined that a registered nurse need not be on the premises
to supervise care--only that the nurse have overall supervisory duties.
See id. Also with respect to Part II, the district court found that Part
II's requirement that all abortion clinic health care personnel receive
tuberculin skin testing is medically unnecessary in view of the fact that
DHEC has not required such testing of all health care personnel and did
not offer any justification for arbitrarily requiring this testing of all
abortion care workers, but not all other health care workers. See id. at
722. |
| [157] | The district court also found that Regulation 61-12's requirement that
all allied health care personnel in abortion clinics receive CPR training,
as opposed to having one qualified person at the clinic at all times, was
medically unnecessary in view of the fact that this requirement is imposed
solely upon abortion providers who perform, according to all of the witnesses,
one of the safest surgical procedures that is performed in this country,
and DHEC did not offer any justification for arbitrarily imposing this requirement.
See id. |
| [158] | With respect to Part III, the district court found that the level of policies
and procedures required by this part, as well as the extensive in-service
training requirements and other policies required in Part II, are costly
endeavors unsubstantiated by a medical need. See id. The district court
observed that such requirements may be appropriate for large medical care
facilities with large staffs that do not interact on a daily basis. See
id. However, according to the district court, Regulation 61-12 arbitrarily
imposes it upon every clinic and every physician's office which performs
five or more first trimester abortions per month--regardless of the number
of staff or hours of operation. See id. |
| [159] | The district court also found that it was medically unnecessary to have
every woman undergo (and pay for) testing for certain sexually transmitted
diseases (but not others), without regard to whether such tests are medically
indicated and indeed even when the physician determines that they are not,
simply because the woman has chosen to obtain a first trimester abortion
from a physician who performs them on a regular basis.*fn10
See id. The district court further found that Section 307's requirement
that abortion providers have "consulting" arrangements with various
specialists before they can obtain a license to operate is medically unnecessary
and unduly burdensome because no evidence was presented relating to why
licensed physicians are not capable of exercising appropriate discretion
in recognizing and acting upon the medical needs of their patients in this
regard. See id. at 722-23. |
| [160] | Also with respect to Part III, the district court found that Regulation
61-12 inexplicably imposes requirements concerning access to emergency drugs
which are not imposed upon any other physicians. See id. at 723. The district
court also found that the equipment and supplies required by Regulation
61-12 will also increase the costs of providing abortions in South Carolina,
and require equipment unnecessary for the safe performance of the first
trimester abortion procedure. See id. |
| [161] | With respect to Part IV, the district court found that this part of Regulation
61-12 was particularly troubling. For example, the district court found
that the requirement that a woman seeking an abortion provide the name of
her spouse in addition to an emergency contact is a medically unnecessary
requirement which imposes a substantial obstacle in the path of a woman
who, for personal reasons, may not wish to disclose this information. See
id. The district court also found that, although the abortion clinic was
required to keep patient records confidential, nothing prohibited DHEC from
publicizing these records once it obtained them pursuant to an inspection.
See id. at 702. |
| [162] | With respect to Part VIII, the district court observed that this part
of Regulation 61-12 imposed extensive and detailed design and construction
requirements for abortion facilities, which far exceed building code requirements
applicable to other physicians' offices, including those that perform identical
and comparable procedures. See id. at 723. The district court found that
these extensive requirements, while perhaps appropriate for a hospital or
large ambulatory surgical center, are not justified by expected medical
benefits to the women undergoing the relatively safe, first trimester suction
curettage abortion in a small physician's office or clinic. See id. |
| [163] | Also with respect to Part VIII, the district court found that additional
requirements, which were advanced as unique to the medical field, had no
justification in medical necessity. For example, the district court found
no evidence supporting a need for an abortion clinic to install additional
bathroom equipment and emergency call buttons or that it have a recovery
area separate from the procedure area. See id. at 724. The district court
further found that no credible evidence was presented demonstrating that
physicians should be required to widen their doors and corridors to a width
sufficient to accommodate both an ambulance stretcher and a person walking
alongside to perform cardiopulmonary resuscitation, particularly given the
unanimous testimony that a first trimester abortion is a relatively safe
procedure with infrequent complications. See id. The district court found
no evidence that this need had ever arisen from the performance of a first
trimester abortion in South Carolina or elsewhere. See id. Finally, the
district court observed that physicians performing surgical procedures of
comparable invasiveness and risk are not required to renovate their offices
to meet a similar requirement. See id. |
| [164] | With respect to Part IX, the district court found that this part of Regulation
61-12 required numerous certifications and laboratory test results concerning
various parts of the abortion clinic (such as the carpets and draperies)
without any evidence that the these requirements would further the goal
of protecting women's health in South Carolina. See id. |
| [165] | With respect to Part X, the district court observed that, in conjunction
with Section 103(C), Part X grants to DHEC unfettered power to "manage[
]" abortion providers "in accordance with the best practices as
interpreted by the Department," S.C. Code Ann. Regs. 61-12, Part X,
and to cite providers with a Class III violation and penalty if DHEC observes
a condition deemed to be "against the best practices as interpreted
by the Department," id.§ 103(C). The district court found that Part
X imposed upon abortion providers the additional burden of determining and
complying with standards or practices not specified in the regulation, but
which DHEC may in the future find to be "best" for an abortion
clinic. See Greenville Women's Clinic, 66 F. Supp. 2d at 724. |
| [166] | Finally, the district court found that a first trimester suction curettage
abortion in South Carolina currently costs between $325 and $480, depending
on the gestational age, the type of sedation or anesthesia needed, and the
medical testing indicated. See id. at 717. The district court further found
that Regulation 61-12 would raise the cost of each abortion performed by
the plaintiffs in the following ranges:*fn11 |
| [167] | (1) For CWMC, the cost will increase between $36.48 and $75.03; |
| [168] | (2) For Dr. Lynn's Greenville practice, the cost will increase between
$93.09 and $170.39; |
| [169] | (3) For Dr. Lynn's Beaufort practice, the cost will increase between $115.67
and $367.50; |
| [170] | (4) For GWC, the cost will increase between $22.68 and $32.39.*fn12
See id. |
| [171] | The district court found that the substantial alterations that Dr. Lynn
would have to undertake to bring his Beaufort practice in compliance with
Regulation 61-12 will likely force him to close his practice, thereby eliminating
the availability of abortions in this area of South Carolina.*fn13
See id. The district court also found that the increased cost of providing
abortions and/or the closure of the only abortion clinic in one area of
a state resulting from Regulation 61-12 will prevent a significant number
of women from obtaining an abortion or, at a minimum, delay them from obtaining
the abortion, both of which carry increased risks to the health of women.*fn14
See id. at 718. The district court found that, as a pregnancy advances,
the medical risks associated with an abortion procedure increase, and a
full term pregnancy is more risky to the physical health of a woman than
a first trimester abortion. See id. at 720. |
| [172] | F. |
| [173] | Based on the findings of the district court summarized above, the district
court concluded that Regulation 61-12 violated the Due Process and Equal
Protection Clauses of the Fourteenth Amendment. See id. at 724-43. With
respect to the Due Process Clause, the district court held that Regulation
61-12 failed to pass constitutional muster under either the facial invalidity
standard set forth in United States v. Salerno, 481 U.S. 739 (1987), or
the undue burden test set forth in Planned Parenthood v. Casey, 505 U.S.
833 (1992) (plurality joint opinion of O'Connor, Kennedy, and Souter, J.J.).
See Greenville Women's Clinic, 66 F. Supp. 2d at 727-37. With respect to
the undue burden standard set forth in Casey, the district court held that
Regulation 61-12 did not serve and was not designed to serve the state's
interest in maternal health. See id. at 730-35. To the contrary, the district
court concluded that Regulation 61-12 would likely harm the health of women
in South Carolina. See id. Accordingly, the district court concluded that
Regulation 61-12 was unconstitutional under Casey. See id. at 735. The district
court also concluded that even if Regulation 61-12 furthered the state's
interest in maternal health, the burdens imposed by Regulation 61-12 upon
abortion patients and providers constituted an undue burden on a woman's
right to have an abortion prior to viability. See id. at 735-43. With respect
to the standard set forth in Salerno, the district court concluded that
Regulation 61-12 was unconstitutional in all of its applications and, therefore,
could not stand under Salerno. See id. at 736-43. |
| [174] | With respect to the Equal Protection Clause, the district court held that
Regulation 61-12 violated the Equal Protection Clause under both the strict
scrutiny test and the more lenient rational basis test. See id. at 737-43.
With respect to the rational basis test, the district court held that Regulation
61-12 failed that test because it singles out physicians and abortion clinics
performing five or more first trimester abortions per month from other physicians
and clinics performing four or less first trimester abortions per month
and/or other virtually identical procedures and places additional and onerous
burdens upon physicians and abortion clinics which are neither justified
by actual differences nor rationally related to the state's legitimate interest
in protecting the health and safety of women seeking first trimester abortions.
See id. at 740-43. Finally, the district court concluded, in light of both
South Carolina law and the text of Regulation 61-12, that Regulation 61-12
was not subject to the doctrine of severability.*fn15
See id. at 743-44. |
| [175] | II. |
| [176] | A. |
| [177] | The Due Process Clause of the Fourteenth Amendment states that: "nor
shall any State deprive any person of life, liberty, or property, without
due process of law." U.S. Const. amend. XIV, § 1. "Although a
literal reading of the Clause might suggest that it governs only the procedures
by which a State may deprive persons of liberty, . . . the Clause has been
understood to contain a substantive component as well, one barring certain
government actions regardless of the fairness of the procedures used to
implement them." Casey, 505 U.S. at 846 (plurality joint opinion of
O'Connor, Kennedy, and Souter, J.J.) (citation and internal quotation marks
omitted). A woman's right to have an abortion is recognized as a fundamental
right protected by the substantive component of the Due Process Clause of
the Fourteenth Amendment. See Roe v. Wade, 410 U.S. 113, 155-66 (1973);
see also Manning v. Hunt, 119 F.3d 254, 259 (4th Cir. 1997).*fn16 |
| [178] | In Roe, the Supreme Court overturned a Texas statute prohibiting abortions
unless an abortion was necessary to save the life of the mother. See 410
U.S. at 117-18. The Roe Court held that the right of personal privacy includes
the right to have an abortion, but that the right "is not unqualified
and must be considered against important state interests in regulation."
Id. at 154. The Court determined that because abortion is a fundamental
right, state abortion regulations should be analyzed under the strict scrutiny
standard of review, and are, therefore, valid only if the regulation can
be justified by a compelling state interest and if the regulation was narrowly
drawn to further only that legitimate state interest. See id. at 155. According
to the Court, the state's interest in preserving and protecting the health
of the mother and in protecting potential human life increase in substantiality
as the woman approaches term, becoming compelling at some point in the pregnancy.
See id. at 162-63. |
| [179] | The Roe Court found that during the first trimester of pregnancy the decision
to abort must be left to the wishes of the mother and the judgment of the
mother's physician; that during the time after the first trimester but before
viability of the fetus, the state could regulate the abortion decision in
ways reasonably related to maternal health; and that after viability, the
state could regulate or proscribe abortion except when necessary to preserve
the life or health of the mother. See id. at 164-65. |
| [180] | Since Roe, the Court has struggled to formulate a precise standard for
reviewing facial challenges to abortion regulations. In Salerno, the Court
explained that |
| [181] | [a] facial challenge to a legislative Act is, of course, the most difficult
challenge to mount successfully, since the challenger must establish that
no set of circumstances exists under which the Act would be valid. The fact
that[an Act] might operate unconstitutionally under some conceivable set
of circumstances is insufficient to render it wholly invalid, since we have
not recognized an "overbreadth" doctrine out side the limited
context of the First Amendment. 481 U.S. at 745. |
| [182] | Thus, under Salerno, a facial challenge to a statute will fail if the
statute has any constitutional application. Following Salerno, the Supreme
Court applied Salerno 's "no set of circumstances" test in a few
pre-Casey cases involving abortion statutes. See, e.g., Rust v. Sullivan,
500 U.S. 173, 183 (1991). |
| [183] | In Casey, however, the Court held that an abortion law is unconstitutional
on its face if, "in a large fraction of the cases in which [the statute]
is relevant, it will operate as a substantial obstacle to a woman's choice
to undergo an abortion." 505 U.S. at 895. Although Casey did not expressly
overrule Salerno, it is inconsistent with Salerno. Under Salerno, no factual
showing of unconstitutional application can render a law unconstitutional
if it has any constitutional application. Under Casey, a factual showing
of unconstitutional application in "a large fraction of the cases"
where the law applies can render a law unconstitutional, even if it has
some constitutional application. |
| [184] | In Casey's wake, many circuit courts held that Casey displaced Salerno
in the abortion context. See, e.g. , Planned Parenthood v. Lawall, 180 F.3d
1022, 1027 (9th Cir.) ("In light of our previous suggestion, combined
with the great weight of authority holding that Casey has overruled Salerno
in the context of facial challenges to abortion statutes, we apply Casey's
undue burden standard in determining the facial constitutionality of [the
statute at issue]."), amended by 193 F.3d 1042 (9th Cir. 1999); Women's
Med. Prof'l Corp. v. Voinovich, 130 F.3d 187, 193-96 (6th Cir. 1997) (concluding
that Salerno is inapplicable to facial challenges to abortion regulations
and applying Casey's undue burden standard), cert. denied, 523 U.S. 1036
(1998); Jane L. v. Bangerter, 102 F.3d 1112, 1116 (10th Cir. 1996) (noting
the difference between Casey and Salerno and applying Casey's undue burden
standard to facial abortion challenge); Planned Parenthood v. Miller, 63
F.3d 1452, 1458 (8th Cir. 1995) (choosing to follow "what the Supreme
Court actually did--rather than what it failed to say--and apply the undue-burden
test" to facial abortion challenge); Casey v. Planned Parenthood, 14
F.3d 848, 863 n.21 (3d Cir. 1994) (noting that Supreme Court in Casey "set
a new standard for facial challenges to pre-viability abortion laws").
The Fifth Circuit has applied the Salerno test to a facial abortion challenge
after Casey, see Barnes v. Moore, 970 F.2d 12, 14 (5th Cir. 1992), but its
application of Salerno has not been consistent, see Sojourner T. v. Edwards,
974 F.2d 27, 29-31 (5th Cir. 1992) (striking down statute banning abortions
as clearly unconstitutional under Casey, even though it permitted abortions
to save the life of the mother and, therefore, arguably passed constitutional
muster under Salerno), and the Fifth Circuit has yet to resolve the inconsistency.
See Okpalobi v. Foster, 190 F.3d 337, 354 (5th Cir. 1999) (noting inconsistency
but declining to address it because challenged law failed under both Casey
and Salerno). |
| [185] | However, our circuit never resolved the Salerno /Casey question, despite
what the majority might have one believe. See ante at 12-13. In Manning,
we applied the Salerno standard of review to an abortion statute, but the
plaintiffs did not challenge its applicability. See 119 F.3d at 268 n.4.
In dicta, however, the court suggested that we would nonetheless apply the
Salerno standard until the Supreme Court explicitly overruled it, stating
that |
| [186] | [i]t is not the province of the court of appeals to predict how the Supreme
Court will ultimately rule on an issue. Casey does not specifically overrule
Salerno. At the moment, the most that can be said is that three Justices
have indicated a desire to do so. Until the Supreme Court specifically does
so, though, this Court is bound to apply the Salerno standard as it has
been repeatedly applied in the context of other abortion regulations reviewed
by the Supreme Court. Id.; see also Planned Parenthood v. Camblos, 155 F.3d
352, 381 n.14 (4th Cir. 1998) (en banc) (noting the Manning dicta but not
deciding the question), cert. denied, 525 U.S. 1140 (1999); id. at 389 n.2
(Michael, J., concurring in the judgment) (asserting that Casey's undue
burden test must be applied to facial challenges to abortion restrictions). |
| [187] | The Salerno/Casey question was finally resolved by the Supreme Court in
Stenberg v. Carhart, No. 99-830, 2000 WL 825889 (U.S. June 28, 2000). In
that case, a Nebraska physician brought a facial challenge to Nebraska's
"partial birth" abortion statute. As interpreted by the Supreme
Court, the Nebraska statute banned the performance of second trimester dilation
and extraction (D & X) abortions, commonly referred to as "partial
birth abortions," and the performance of dilation and evacuation (D
& E) abortions, the most commonly used method for performing previability
second trimester abortions. The Supreme Court applied Casey and concluded
that the Nebraska statute was unconstitutional for two independent reasons.
First, the Court concluded that the Nebraska statute was unconstitutional
because the statute lacked any exception for the preservation of the health
of the mother and the record evidence disclosed that, in some circumstances,
a D & X abortion would be the safest abortion. See Stenberg, No. 99-830,
2000 WL 825889, at *10-14. Second, the Court concluded that, because the
Nebraska law applied to the performance of D & E abortions, the most
commonly used method for performing previability second trimester abortions,
the resulting fear of prosecution, conviction, and imprisonment felt by
physicians who perform D & E abortions amounted to an undue burden on
a woman's right to have an abortion. See id. at *15-19. |
| [188] | In this case, the district court did not resolve the Salerno/Casey question.
See Greenville Women's Clinic, 66 F. Supp. 2d at 726-27. Instead, the district
court analyzed Regulation 61-12 under both standards and held that Regulation
61-12 failed to pass constitutional muster under either the Salerno or Casey
standard. See id. at 727-37. Here, being bound by Stenberg, I only need
to evaluate Regulation 61-12 under the principles set forth in Casey , as
contrary to the majority's intimation, see ante at 12-13, Salerno, in the
abortion context, is not recognized as the law by the current Supreme Court. |
| [189] | In Casey, the Supreme Court established the undue burden test for determining
whether a statute restricting abortions could pass constitutional muster.
Under Casey, a statute is invalid on its face if it places an undue burden
on a woman's right to have an abortion before the fetus attains viability.
See 505 U.S. at 878. An undue burden exists if the state regulation has
the effect of placing a substantial obstacle in the path of a woman's choice
to obtain an abortion before the fetus attains viability. Id. at 877-78.
A statute that creates a substantial obstacle for a large fraction of those
women affected by the regulation creates an undue burden and is facially
unconstitutional. See id. at 894-95. Thus, in Casey, the Court rejected
Roe's trimester framework, but left intact a woman's fundamental right "to
choose to have an abortion before viability and to obtain it without undue
interference from the state." Id. at 846. In reaching this conclusion,
the Court recognized that the state's interests prior to viability "are
not strong enough to support a prohibition of abortion or the imposition
of a substantial obstacle to the woman's effective right to elect the procedure."
Id. |
| [190] | In Casey, the Supreme Court was presented with constitutional challenges
to various provisions in a Pennsylvania statute governing informed consent,
parental consent, record-keeping and reporting requirements, and a medical
emergency exception. See id. at 844. Thus, the plurality opinion primarily
focused on the state's legitimate interests in the potentiality of human
life--holding that to promote this "profound interest in potential
life, throughout pregnancy the State may take measures to ensure that the
woman's choice is informed, and measures designed to advance this interest
will not be invalidated so long as their purpose is to persuade the woman
to choose childbirth over abortion" and they do not impose an "undue
burden on the right." Id. at 878. |
| [191] | Nevertheless, the Casey plurality also provided guidance by addressing
the state's concomitant, and equally legitimate, interest in preserving
and protecting the health of women seeking abortion services--of particular
relevance to the challenge in this case. Specifically, the Casey plurality
held that as |
| [192] | with any medical procedure, the State may enact regulations to further
the health or safety of a woman seeking an abor tion. Unnecessary health
regulations that have the purpose or effect of presenting a substantial
obstacle to a woman seeking an abortion impose an undue burden on the right.
Id. at 878 (emphasis added). |
| [193] | The types of burdens that may be imposed by state regulation are varied
in nature, but clearly include financial burdens which restrict or prohibit
the exercise of the right. As noted by the Casey plurality: |
| [194] | Numerous forms of state regulation might have the inciden tal effect of
increasing the cost or decreasing the availability of medical care, whether
for abortion or any other medical procedure. The fact that a law which serves
a valid purpose, one not designed to strike at the right itself, has the
inciden tal effect of making it more difficult or more expensive to procure
an abortion cannot be enough to invalidate it. Only where the state regulation
imposes an undue burden on a woman's ability to make the decision does the
power of the State reach into the heart of the liberty protected by the
Due Process Clause. Id. at 874; see also id. at 901. Furthermore, "[n]ot
all burdens on the right to decide whether to terminate a pregnancy will
be undue." Id. at 876. As the Casey plurality noted: |
| [195] | A finding of an undue burden is a shorthand for the conclu sion that a
state regulation has the purpose or effect of plac ing a substantial obstacle
in the path of a woman seeking an abortion of a nonviable fetus. A statute
with this purpose is invalid because the means chosen by the State to further
the interest in potential life must be calculated to inform the woman's
free choice, not to hinder it. And a statute which, while furthering the
interest in potential life or some other valid state interest, has the effect
of placing a substantial obstacle in the path of a woman's choice cannot
be consid ered a permissible means of serving its legitimate ends. Id. at
877. |
| [196] | Accordingly, the court must first determine whether Regulation 61-12 furthers
the state's interest in maternal health, which is the state interest the
defendants contend Regulation 61-12 was designed to serve. See id.; id.
at 900-01 ("The collection of information with respect to actual patients
[which, under the statute at issue, will remain confidential] is a vital
element of medical research, and so it cannot be said that the requirements
serve no purpose other than to make abortions more difficult."). If
Regulation 61-12 furthers the state's interest in maternal health, the court
must next determine whether Regulation 61-12 imposes an undue burden on
a woman's right to seek an abortion. See id. at 877, 901. |
| [197] | In this case, a careful review of the record discloses that Regulation
61-12 does not further the state's interest in maternal health. With respect
to whether Regulation 61-12 furthers the state's interest in maternal health,
I note that the Supreme Court has not provided much guidance in this area.
However, several pre-Casey cases do provide some insight. For example, in
Roe's companion case, Doe v. Bolton, the Court invalidated a Georgia law
requiring that all first trimester abortions be performed in a licensed
hospital where the state failed to show that only the hospital environment
could ensure the quality of the operation and the protection of the patients.
See 410 U.S. at 195. |
| [198] | In Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416 (1983),
the Supreme Court was presented with a challenge to an Ohio ordinance which,
among other things, required all second trimester abortions to be performed
in a hospital. See id. at 422. Reaffirming the prohibition against over
regulation of a relatively safe surgical procedure, the Court held that
the |
| [199] | [s]tate's discretion to regulate on [the basis of maternal health] does
not . . . permit it to adopt abortion regulations that depart from accepted
medical practice. . . . If a State requires licensing or undertakes to regulate
the performance of abortions during this period, the health standards adopted
must be legitimately related to the objective the State seeks to accomplish.
Id. at 431 (citation and internal quotation marks omitted). |
| [200] | The Court then invalidated the ordinance, holding that it"imposed
a heavy, and unnecessary, burden on a woman's access to a relatively inexpensive,
otherwise accessible, and safe abortion procedure." Id. at 438.*fn17 |
| [201] | From the above discussion, it is evident that the State of South Carolina
has a legitimate interest from the outset of pregnancy in protecting the
health of women seeking abortions, and that this interest is sufficiently
important to allow the state to regulate abortion providers, including providers
that limit their services to abortions during the first trimester. See Casey,
505 U.S. at 876. Furthermore, this interest allows the state to regulate,
within the boundaries of Casey and its predecessors, such matters as the
qualifications of the person performing the procedure, the facilities in
which the abortions are performed, and the availability of medical care
after the procedure and in the event of an emergency. See Roe, 410 U.S.
at 149-50. However, Casey and its predecessors teach us that health regulations
which are unnecessary, i.e., not reasonably related to maternal health or
which depart from accepted medical practice, cannot withstand constitutional
scrutiny and must be invalidated. See Casey, 505 U.S. at 878; Akron, 462
U.S. at 431. |
| [202] | In my view, Regulation 61-12 is riddled with unnecessary requirements,
i.e., requirements not reasonably related to maternal health or which depart
from accepted medical practice. For example, Regulation 61-12's requirement
that each abortion patient be tested for particular sexually transmitted
diseases is not an accepted medical practice where there are no symptoms
or other accepted medical reasons or risk factors to justify such a test.*fn18
Also, Regulation 61-12 requires an abortion clinic to perform urine pregnancy
tests on all abortion patients, including those whose pregnancy have been
confirmed by other means, e.g., ultrasound. In addition, Regulation 61-12
places medically unnecessary administrative requirements on abortion clinics
which are clearly inappropriate to medical offices of such small sizes as
the plaintiffs' offices. For example, DHEC has mandated--without regard
to the number of staff or size of the abortion clinic--the development of
extensive policies and procedures, frequent staff meetings, formal in-service
training and required staff certifications, and medical testing of employees
which, while probably appropriate for a hospital or a large outpatient surgical
center, are unnecessary in a small physician's office or clinic. Furthermore,
there is no evidence in the record demonstrating how Regulation 61-12's
construction and design requirements will further the health of women seeking
abortions in South Carolina, and no explanation is offered as to why all
of these requirements are so much greater for these clinics than they are
for other physicians' offices performing the same type of procedures. |
| [203] | Another requirement which is not an accepted medical practice is Regulation
61-12's requirement that a registered nurse, as opposed to a licensed physician,
supervise nursing care. There is no evidence in the record to suggest that
a physician is not capable of supervising nursing care. In addition, Regulation
61-12 requires that an abortion clinic "be kept . . . free from odors"
and that all outside areas "be kept free of rubbish, grass, and weeds
that may serve . .. as a haven for insects, rodents and other pests."
S.C. Code Ann. Regs. 61-12, §§ 604 and 606. However, there is no evidence
in the record suggesting that these requirements would ensure the quality
of a first trimester abortion procedure or the protection of patients. |
| [204] | The same can be said about Part X of Regulation 61-12 which grants DHEC
the authority to impose penalties for any condition which, while not mandated
or prohibited by Regulation 61-12, DHEC deems to be "against the best
practices" as later defined by DHEC. Id. Part X. Obviously, Part X
of Regulation 61-12 subjects physicians to unnecessary uncertainty in the
operation of their practices and invites arbitrary enforcement. Finally,
it is not an accepted medical practice to permit a state agency, such as
DHEC, to enter an abortion clinic, copy records, and disseminate them publicly,
but this is precisely what Regulation 61-12 allows.*fn19
In summary, Regulation 61-12 does not further the state interest of protecting
maternal health. In fact, Regulation 61-12 has the opposite effect. As found
by the district court, Regulation 61-12 will substantially increase the
cost of abortions in South Carolina because Regulation 61-12 requires unnecessary
tests be performed, unnecessary staff be hired, and, in some cases, extensive
renovations to existing facilities be made. Because Regulation 61-12 will
result in a substantial increase in the cost of obtaining an abortion in
South Carolina, a significant number of women will be forced to either delay
having an abortion, or forego having one altogether. This, in turn, will
result in increased health risks to women seeking abortions. Accordingly,
Regulation 61-12 serves no other purpose than to make abortions more difficult
to obtain, and, therefore, Regulation 61-12 violates the Due Process Clause
of the Fourteenth Amendment. See Casey, 505 U.S. at 877; id. at 900-01. |
| [205] | The majority concludes that Regulation 61-12 was designed to further the
State of South Carolina's interest in maternal health largely on the basis
that Regulation 61-12 is generally compatible with accepted medical practice
governing abortions, more specifically, the guidelines promulgated by ACOG
and NAF. See ante at 17-20. The majority's analysis ignores the significant
departures that Regulation 61-12 makes from those guidelines, the attendant
costs associated with those departures, and the effect of those costs on
the availability of abortions in the State of South Carolina. Regulation
61-12 goes far beyond the recommendations of ACOG and NAF, and, in some
cases conflicts with them. Thus, while the ACOG and NAF guidelines address
physical plant and equipment needs in abortion clinics, they do not suggest
or support the extensive plant and equipment requirements (such as mandating
numerous separate rooms or areas, utility sinks, and specific air exchanges,
sheltered entryways, special janitor's closets) included in Regulation 61-12.
Similarly, the ACOG and NAF guidelines do not contain any recommendations
supporting the staffing requirements imposed by Regulation 61-12. For example,
none of the guidelines require that a registered nurse supervise nursing
care in an abortion facility if the attending physician is able to supervise
that care. In addition, the ACOG and NAF guidelines do not support the testing
requirements imposed by Regulation 61-12; specifically, they do not call
for any routine testing of abortion patients other than for Rh factor and
anemia, and they state that sexually transmitted disease testing should
be performed on the basis of risk factors. Likewise, while the ACOG guidelines
address the administration of abortion clinics, they do not require the
extensive written policies, procedures, and formal meetings required by
Regulation 61-12. Also, the ACOG and NAF guidelines forbid the release of
any medical information from a patient's record without the prior consent
of the patient, thus conflicting with Regulation 61-12's mandate that abortion
providers permit DHEC to copy and remove patient records. In addition, while
the ACOG and NAF guidelines recommend that counseling be offered, Regulation
61-12 requires something very different. It mandates the establishment of
relationships with outside specialists in various areas to whom patients
can be referred. Finally, it should be noted that the district court found
as a fact that the ACOG and NAF guidelines were just that, guidelines. They
are not mandates. |
| [206] | The upshot of this discussion is that the departures from the ACOG and
NAF guidelines listed above, coupled with many others not discussed, result
in a substantial increase in the cost of obtaining an abortion in the State
of South Carolina. As noted above, because Regulation 61-12 will result
in a substantial increase in the cost of obtaining an abortion in South
Carolina, a significant number of women will be forced to either delay having
an abortion, or forego having one altogether. Also, the costs will likely
force the closure of Dr. Lynn's Beaufort office, which will result in the
elimination of abortion services in that part of South Carolina. Under such
circumstances, one must conclude that Regulation 61-12 does not further
the State of South Carolina's interest in maternal health. |
| [207] | Even if Regulation 61-12 furthers the state interest of protecting and
preserving the health of women seeking abortions, Regulation 61-12 cannot
stand if it imposes an undue burden on a woman's fundamental right to obtain
an abortion, see id. at 877-78, as a regulation which has "the effect
of placing a substantial obstacle in the path of a woman's choice cannot
be considered a permissible means of serving its legitimate ends."
Id. at 877. A review of the record makes it clear that Regulation 61-12
will impose an undue burden on the right to obtain an abortion prior to
viability. As noted earlier, a first trimester suction curettage abortion
in South Carolina currently costs between $325 and $480, depending on the
gestational age, the type of sedation or anesthesia needed, and the medical
testing indicated. Based on the costs of complying with Regulation 61-12,
the district court found that Regulation 61-12 would raise the cost of each
abortion performed by the plaintiffs in the following ranges: (1) for CWMC,
the cost will increase between $36.48 and $75.03; (2) for Dr. Lynn's Greenville
practice, the cost will increase between $93.09 and $170.39; (3) for Dr.
Lynn's Beaufort practice, the cost will increase between $115.67 and $367.50;
and (4) for GWC, the cost will increase between $22.68 and $32.39. See Greenville
Women's Clinic, 66 F. Supp. 2d at 717. A significant increase in the cost
of obtaining an abortion alone can constitute an undue burden on the right
to have an abortion. See Casey, 505 U.S. at 901 ("While at some point
increased cost could become a substantial obstacle, there is no such showing
on the record before us."). It follows that the decreased availability
of abortions due to the closure of the only abortion clinic in one area
of a state also constitutes an undue burden on the right to have an abortion,
as it increases the distance a woman has to travel to obtain an abortion,
thereby significantly increasing the time and the cost to obtain an abortion. |
| [208] | Regulation 61-12 will impose a significant increase in the cost of obtaining
an abortion in South Carolina, which, in turn, will prevent woman from obtaining
abortions. For example, for a woman in Beaufort, South Carolina, the cost
of a first trimester abortion will increase, at a minimum, $115.67, or,
if Dr. Lynn's Beaufort practice closes because of Regulation 61-12, it may
result in the elimination of abortion services in that part of the state
altogether. Also the increased costs of providing abortions resulting from
Regulation 61-12 at other facilities throughout South Carolina will prevent
a significant number of women from obtaining an abortion or, at a minimum,
delay them from obtaining an abortion, thus, resulting in increased health
risks to women in South Carolina. |
| [209] | Regulation 61-12 also imposes additional burdens, unrelated to cost, on
the right to obtain an abortion. For example, Regulation 61-12 grants DHEC
inspectors the right to inspect abortion clinics at will and without limitation;
such inspections can be initiated by anonymous complaints. During any such
inspection, DHEC inspectors are granted the right to copy confidential patient
records, and Regulation 61-12 does not ensure that DHEC will keep these
records confidential. Obviously, this requirement would have a chilling
effect on a woman's freedom to choose to have, and a physician's willingness
to preform, an abortion. Another example is Regulation 61-12's requirement
that a married abortion patient disclose her husband's name. Obviously,
this requirement is not necessary for the provision of safe medical care,
and there are a host of reasons why a married patient would prefer not to
disclose her husband's name. Cf. Casey, 505 U.S. at 893-98 (holding that
Pennsylvania law requiring spousal notification prior to abortion imposes
an undue burden on the right to have an abortion). Thus, this requirement
also hinders a woman from obtaining an abortion. Finally, physicians performing
five or more first trimester abortions per month must be licensed by the
State of South Carolina and be "properly qualified by training and
experience to perform" abortions. S.C. Code Ann. Regs. 61-12, § 205(C).
However, Regulation 61-12 provides no guidance on the additional credentials
required beyond that of a medical license to meet this qualification standard.
Thus, physicians who perform five or more first trimester abortions per
month operate under a constant fear that they will be declared "unqualified"
by DHEC under some vague and amorphous standard. Obviously, this readily
apparent fear would have a chilling effect on a physician's willingness
to perform an abortion, thus, resulting in an adverse impact on a woman's
ability to obtain an abortion. Cf. Stenberg, No. 99-830, 2000 WL 825889,
at *19 ("In sum, using this law some present prosecutors and future
Attorneys General may choose to pursue physicians who use D & E procedures,
the most commonly used method for performing previability second trimester
abortions. All those who perform procedures using that method must fear
prosecution, conviction, and imprisonment. The result is an undue burden
upon a woman's right to make an abortion decision."). Under these circumstances,
I am simply constrained to conclude that Regulation 61-12 imposes an undue
burden on a woman's fundamental right to obtain an abortion. Cf. Ragsdale
v. Turnock, 841 F.2d 1358, 1373-74 (7th Cir. 1988) (invalidating portions
of a similar licensure regulation which mandated, among other things, detailed
physical plant requirements, policies and procedures, and staffing requirements);
Birth Control Ctrs., Inc. v. Reizen, 743 F.2d 352, 364-65 (6th Cir. 1984)
(invalidating detailed, specific regulatory criteria governing the physical
layout of abortion facilities, staffing requirements, and equipment requirements). |
| [210] | In its opinion, the majority concludes that Regulation 61-12 does not
constitute an undue burden on a woman's right to obtain an abortion. See
ante at 20-24. The pillar supporting the majority's holding is its observation
that the plaintiffs failed to produce evidence demonstrating that the cost
increases resulting from the promulgation of Regulation 61-12 would have
an adverse effect on a women's ability to obtain an abortion in South Carolina.
See ante at 22-23. This pillar is a transparent facade, at best. |
| [211] | In part, the district court's finding of an undue burden was premised
on the testimony of the plaintiffs' expert, Dr. Stanley Henshaw. Dr. Henshaw
testified that an increase of just $25 can be expected to prevent one or
two out of every 100 low-income women seeking an abortion from being able
to obtain one. Under Supreme Court case law, this constitutes an undue burden
on a woman's right to obtain an abortion. See Casey, 505 U.S. at 894-95
(invalidating law that imposed substantial obstacle on a large fraction
of the one percent of abortion patients who are married and do not voluntarily
notify their spouses of the abortion). |
| [212] | Moreover, the cost increases resulting from Regulation 61-12 will likely
force Dr. Lynn to close his Beaufort practice. While traveling seventy miles
on secondary roads may be inconsequential to my brethren in the majority
who live in the urban sprawl of Baltimore, as the district court below and
I conclude, such is not to be so casually addressed and treated with cavil
when considering the plight and effect on a woman residing in rural Beaufort
County, South Carolina.*fn20 |
| [213] | B. |
| [214] | The Equal Protection Clause states in relevant part that no state shall
"deny to any person within its jurisdiction the equal protection of
the laws." U.S. Const. amend. XIV, § 1. The Equal Protection Clause
requires that "all persons similarly situated should be treated alike."
City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985).
However, the Equal Protection Clause's"promise that no person shall
be denied the equal protection of the laws must coexist with the practical
necessity that most legislation classifies for one purpose or another, with
resulting disadvantage to various groups or persons." Romer v. Evans,
517 U.S. 620, 631 (1996). Accordingly, "if a law neither burdens a
fundamental right nor targets a suspect class," the legislation will
be upheld "so long as it bears a rational relation to some legitimate
end." Id. |
| [215] | Initially, it must be determined what level of scrutiny should be applied
to the classifications at issue, which are physicians and abortion clinics
that perform five or more abortions per month. The plaintiffs urge the court
to apply strict or heightened scrutiny because the classifications penalize
the exercise of the fundamental right to have an abortion or, at a minimum,
target a suspect or quasi-suspect class. On the other hand, the defendants
contend that physicians do not constitute a suspect class for equal protection
purposes and do not have a fundamental right to perform abortions. Accordingly,
the defendants argue that the court should apply the rational basis test. |
| [216] | Courts addressing the constitutionality of similar types of health care
regulations have reached various conclusions under different tests. For
example, in Friendship Medical Center, Ltd. v. Chicago Board of Health,
505 F.2d 1141 (7th Cir. 1974), the court invalidated abortion service regulations
promulgated by the Chicago Board of Health which sought to regulate such
things as the design of the medical facility, the type of medical staff
and its training, the maintenance of equipment, supplies, and medications,
the content of medical records, and the types of medical tests which must
be administered to abortion patients. See id. at 1152-53. Applying strict
scrutiny, the court invalidated the regulation on both due process and equal
protection grounds, because fundamental rights were involved. See id. at
1148-52. With regard to the equal protection analysis, the court held as
follows: |
| [217] | Given the Supreme Court's acceptance of the medical fact that the mortality
rate of women receiving legal abortions is "as low as or lower than
the rates of normal childbirth," . . . |
| [218] | there would seem to be little justification for extensive gov ernmental
regulations, purportedly based on health consider ations, for one procedure
than the other. . . . |
| [219] | The Chicago Board of Health's Rules on Abortion Services regulate comprehensively
physicians who perform abor tions, while at the same time leaving other
medical proce dures, often much more complex and dangerous in terms of the
patient's health, up to the good judgment of the physi cian. Id. at 1152
(quoting Roe, 410 U.S. at 149). |
| [220] | Because the defendants offered no sufficiently compelling reason to justify
the difference in treatment, the court invalidated the regulations. See
id. at 1153. It had previously noted, however, that "on the record
before th[e] court there is no basis for determining whether the regulations
are even reasonably related to a valid state concern." Id. at 1150. |
| [221] | The Sixth Circuit has also been called upon to address comprehensive health
regulations on several occasions. First, in Mahoning Women's Center v. Hunter,
610 F.2d 456 (6th Cir. 1979), vacated on other grounds, 447 U.S. 918 (1980),
the court affirmed the district court's decision to invalidate, under the
strict scrutiny test, a city ordinance imposing costly medical and building
code requirements on first trimester abortion clinics, while leaving unregulated
the performance of other medical and surgical procedures. See id. at 460-61. |
| [222] | Next, the Sixth Circuit addressed the constitutionality of a Michigan
licensing scheme which required all free-standing surgical outpatient facilities
(FSOFs) to comply with staffing, structural, equipment, counseling, consent,
and record-keeping requirements in order to obtain a license to operate.
See Birth Control Ctrs., Inc., 743 F.2d at 357. Because the licensing scheme
applied to abortion clinics, albeit not exclusively, four abortion clinics
challenged the scheme on equal protection grounds because it exempted private
physicians' offices where abortions were performed. See id. at 356-57. The
court affirmed the district court's application of the rational basis test
as the appropriate standard of review, because the "differentiation
between FSOFs and physicians' private offices did not involve any suspect
class nor implicate any fundamental right." Id. at 358. In particular,
the court held that "no suspect classification was involved . . . since
the state ha[d] chosen to regulate all FSOFs, not just abortion clinics,"
and distinguished Mahoning on this basis. Birth Control Ctrs., Inc., 743
F.2d at 358 & n.4. |
| [223] | Finally, in Women's Health Center of West County, Inc. v. Webster, 871
F.2d 1377 (8th Cir. 1989), the Eighth Circuit, applying the rational basis
test, upheld an abortion regulation which required emergency backup care
against an equal protection challenge. See id. at 1381. The court noted
that, although the regulation applied only to abortion providers, the state
already required such backup care for all patients undergoing any outpatient
surgery. See id. Thus, the regulation was a reasonable means of insuring
the health of women seeking abortions and did not impose a special requirement
upon abortion providers. See id. It is unnecessary for me to decide whether
the strict scrutiny test or the rational basis test should be applied in
this case because Regulation 61-12 is constitutionally infirm under the
more lenient rational basis test. Under the rational basis test, the court
must determine the relation between the classification adopted and the objective
to be attained. Romer, 517 U.S. at 632. "The search for the link between
classification and objective gives substance to the Equal Protection Clause;
it provides guidance and discipline for the legislature, which is entitled
to know what sorts of laws it can pass; and it marks the limits of our own
authority." Id. "By requiring that the classification bear a rational
relationship to an independent and legitimate legislative end, we ensure
that classifications are not drawn for the purpose of disadvantaging the
group burdened by the law." Id. at 633. Furthermore, even if the disadvantaged
group does not rise to the level of a suspect class entitled to the application
of strict scrutiny, the court must closely scrutinize laws that disadvantage
a politically unpopular group because such laws "raise[ ] the inevitable
inference that the disadvantage imposed is born of animosity toward the
class of persons affected." Id. at 634. "`[I]f the constitutional
conception of "equal protection of the laws" means anything, it
must at the very least mean that a bare . . . desire to harm a politically
unpopular group cannot constitute a legitimate governmental interest.'"
Id. at 634-35 (quoting Department of Agric. v. Moreno, 413 U.S. 528, 534
(1973)). |
| [224] | The defendants contend that Regulation 61-12 does not violate the Equal
Protection Clause because its provisions are rationally related to the legitimate
state interest of protecting the health and welfare of women seeking abortions
in the state. I disagree. |
| [225] | Obviously, South Carolina has a legitimate interest in protecting the
health and welfare of women seeking abortions in the state. South Carolina
also has a legitimate interest in promulgating uniform, minimum standards
for the performance of surgical procedures, including first trimester abortions.
And South Carolina could constitutionally require that abortions only be
lawfully performed by physicians licensed by the State Board of Medical
Examiners to practice medicine pursuant to such uniform, minimum standards,
thereby addressing any concern that unqualified, unlicenced physicians will
come within its borders and establish unregulated abortion clinics performing
unsafe abortion procedures. However, as the district court noted, |
| [226] | [t]he regulation singles out physicians and clinics where abortions are
performed regularly, as part of the normal course of business and in relatively
large numbers, and imposes upon them requirements which are not imposed
upon comparable procedures and not even upon all physi cians who perform
first trimester abortions. In addition, the regulation's requirements reach
far beyond those justified by actual differences in the procedure, or by
the medical nature and risks of the procedure. . . . |
| [227] | Furthermore, defendants have offered no satisfactory expla nation as to
why the state standards applied to physicians' offices and clinics performing
comparable procedures would not suffice to regulate first trimester abortion
providers or ensure the health, safety and welfare of patients seeking abortions--much
less an acceptable basis for excluding phy sicians and facilities which
perform first trimester abortions on a more infrequent basis. . . . |
| [228] | Regulation 61-12 singles out all physicians and clinics who perform more
than the occasional first trimester abortion and requires of them a license
to operate their office or clinic. To obtain the license, the physicians
and clinics must comply with comprehensive mandates governing the physi
cal layout of the clinic or office, the medical equipment which must be
purchased and maintained, the cleaning, maintenance, and operation of the
clinic and the requisite equipment, the management and training of the staff,
and the type of medical care and tests which must be adminis tered and offered
to the patients. The onerous, and largely unnecessary, requirements of this
regulation are neither "narrow enough in scope [nor] grounded in a
sufficient fac tual context for [the court] to ascertain that there existed
some relation between the classification and the purpose it is now alleged
to serve." Greenville Women's Clinic, 66 F. Supp. 2d at 742-43 (quoting
Romer, 517 U.S. at 632-33). |
| [229] | In summary, Regulation 61-12 singles out and places additional and onerous
burdens upon abortion providers which are neither justified by actual differences
nor rationally related to the state's legitimate interest in protecting
the health and safety of women seeking first trimester abortions. Rather,
"its sheer breadth is so discontinuous with the reasons offered for
it that [Regulation 61-12] seems inexplicable by anything but animus toward
the class that it affects." Romer, 517 U.S. at 632. The fact that Regulation
61-12 was directed towards a politically unpopular group in the absence
of any existing public health problem only bolsters this conclusion.*fn21
See id. at 632-34. |
| [230] | III. |
| [231] | The only remaining issue in the case is the question of severability.
The defendants contend that the district court erred in refusing to sever
the unconstitutional portions of Regulation 61-12 from the constitutional
portions. This argument is without merit. Whether Regulation 61-12 is subject
to the doctrine of severability is a question of state, rather than federal,
law. See Department of Treasury v. Fabe, 508 U.S. 491, 509-10 (1993). Under
South Carolina law, |
| [232] | [t]he test for severability is whether the constitutional por tion of
the statute remains complete in itself, wholly inde pendent of that which
is rejected, and is of such a character as it may fairly be presumed that
the Legislature would have passed it independent of that which is in conflict
with the Constitution. Thayer v. South Carolina Tax Comm'n, 413 S.E.2d 810,
815 (S.C. 1992) (citation and internal quotation marks omitted). Moreover,
if the statutory or regulatory scheme does not contain a specific severability
clause, the legislature or agency is presumed to have "intended the
act to be effected as an entirety or not at all." South Carolina Tax
Comm'n v. United Oil Marketers, Inc., 412 S.E.2d 402, 405 (S.C. 1991). |
| [233] | Applying this standard, I conclude that Regulation 61-12 is not a proper
candidate for severance. Regulation 61-12 does not contain a severability
provision, despite the fact that other DHEC regulations have included such
provisions. See, e.g., S.C. Code Ann. Regs. 61-4, Part VI, § 601 (controlled
substances regulation); S.C. Code Ann. Regs. 61-21, § T (sexually transmitted
diseases). The absence of a severability clause is consistent with the scheme
of the enabling legislation and the nature of the regulation. It is apparent
that the South Carolina legislature intended for DHEC to create a comprehensive
licensing scheme for abortion providers, as Regulation 61-12 sets forth
areas to be addressed by the regulation as a whole, and the text of the
regulation is comprehensive and interdependent, reflecting a similar intent
that it stand or fall as a whole. In other words, because the South Carolina
legislature directed DHEC to promulgate a comprehensive set of regulations
governing virtually every aspect of the abortion procedure, it is evident
that the South Carolina legislature intended for all of Regulation 61-12
to be enforced or none of it. Finally, I note that severance is simply not
possible, as I am simply unable to "untangle the constitutional from
the unconstitutional provisions." Ragsdale, 841 F.2d at 1375. |
| [234] | IV. |
| [235] | I have some final comments concerning Part IV of the majority opinion.
The accusatory tone of this portion of the majority opinion, aimed at me
and the district judge who decided the case below, can only evince a majority
which refuses to recognize that current Supreme Court precedent mandates
that a woman still has the fundamental right to obtain an abortion. In its
eagerness to uphold any impediment to a woman's fundamental right to a previability
abortion, the majority, interjecting the emotional and psychological aspect
of a woman's decision, would desensitize the real and basic issue to be
addressed when evaluating such regulations--that is, whether the regulations
are medically necessary and, if so, whether the regulations impose an undue
burden on a woman's fundamental right to have an abortion at the previability
stage of pregnancy. There is no doubt that the State of South Carolina can,
within limits, treat abortions differently from other medical procedures.
But to resolve the question of whether regulations governing abortions are
medically necessary, some reference to comparable procedures is necessary,
if not inevitable. |
| [236] | When considering the majority's analysis based on its chosen and carefully
selected facts, ignoring the findings of fact by the district court, it
can only be concluded that the majority's opinion is based on its view of
the law as it would like to see it and, perhaps more significantly, on not
what the current law would dictate, but only what the majority prophecies
the law will be if and when this case reaches the Supreme Court. This is
simply unacceptable; cases are to be decided on what the law is. It's just
that simple. |
| [237] | To sum up, Regulation 61-12 is violative of the Due Process and Equal
Protection Clauses of the Fourteenth Amendment, and, under South Carolina
law, Regulation 61-12 is not subject to the doctrine of severability. Accordingly,
I would affirm the judgment of the district court.*fn22 |
| [238] | HAMILTON, Senior Circuit Judge, dissenting: |
| [239] | After a six-day bench trial, the district judge, who presently is a judge
on this court, wrote a ninety-four page decision setting forth innumerable
factual findings which lead inexorably to the legal conclusions that South
Carolina Code Annotated Regulation 61-12 violates both the Due Process and
Equal Protection Clauses of the United States Constitution and that the
unconstitutional portions of Regulation 61-12 are not severable from the
constitutional portions. Cavalierly, the majority today sets aside this
thorough and meticulous decision rendered by our esteemed colleague without
identifying a single finding of fact made by him as being clearly erroneous.
To accomplish this tour de force, the majority is compelled to set up and
defeat a lack of evidence straw man. Unlike the majority, I believe the
exhaustive and detailed factual findings made by the district judge amply
support, more accurately compel, the decision rendered by him. Because I
am in complete agreement with the district judge's holdings that South Carolina
Code Annotated Regulation 61-12 violates both the Due Process and Equal
Protection Clauses of the United States Constitution and that the unconstitutional
portions of Regulation 61-12 are not severable from the constitutional portions,
I dissent. |
| [240] | I. |
| [241] | The constitutional issues presented in this case were hotly contested
by the parties at trial, with each side putting forth extensive evidence
in support of their respective positions. Based on the evidence presented,
the district court resolved many factual disputes by making detailed findings
of fact. Because many of the district court's factual findings are completely
ignored by the majority, I set forth below the procedural history and facts
of this case. |
|
|
|
| Opinion Footnotes | |
|
|
|
| [242] | *fn1 An abortion clinic is defined as"[a]ny
facility, other than a hospital . . . in which any second trimester or five
or more first trimester abortions per month are performed." S.C. Code
Ann. Regs. 61-12, § 101(B). Accordingly, the definition of abortion clinic
includes any physician's office in which five or more first trimester abortions
per month are performed. |
| [243] | *fn2 Although the Governor of South
Carolina appeals only the district court's order awarding costs and attorneys'
fees, for ease of reference, I will refer to Bryant, the Governor of South
Carolina, and the Attorney General of South Carolina as the defendants. |
| [244] | *fn3 Pregnancy is measured either from
the date of a woman's lmp or from conception, which is generally considered
to occur two weeks after a woman's lmp. Accordingly, eight weeks after the
lmp is equivalent to six weeks from the date of conception. Under Regulation
61-12, the first trimester of pregnancy ends at fourteen weeks after the
lmp. See S.C. Code Ann. Regs. 61-12, § 103(S). |
| [245] | *fn4 Because the plaintiffs in this
case only provide abortions during the first trimester of pregnancy, the
plaintiffs' challenge to Regulation 61-12 is limited to its application
to providers of first trimester abortions in South Carolina. Accordingly,
I express no opinion as to the constitutionality of Regulation 61-12 as
applied to facilities that may seek to perform second trimester abortions
in the future. |
| [246] | *fn5 By way of comparison, according
to one of the plaintiffs' experts whose testimony was credited by the district
court, having a first trimester suction curettage abortion is safer than
having a shot of penicillin in a physician's office. |
| [247] | *fn6 CLIA-88 has been amended, see 42
U.S.C.A. § 263a (West 1999). This amendment has no relevance to this case. |
| [248] | *fn7 Interestingly, DHEC's regulation
governing ambulatory surgical centers contains a specific provision protecting
the confidentiality of medical records. See S.C. Code Ann. Regs. 61-91,§
1001(E) (providing that records may only be removed from the premises by
subpoena or court order). |
| [249] | *fn8 Section 309 mandates additional
qualifications which the performing physician must possess, additional equipment
which must be on hand, and additional medical tests which must be administered
for second trimester abortions. See S.C. Code Ann. Regs. 61-12, §§ 309(A)-(D). |
| [250] | *fn9 In fact, Regulation 61-12 recognizes
that the risks and potential complications of surgical procedures typically
performed in ambulatory surgical centers are significantly higher than those
associated with first trimester abortions. Under Regulation 61-12, licensed
abortion clinics are restricted to performing abortions through eighteen
weeks of pregnancy measured from the pregnant woman's lmp. See S.C. Code
Ann. Regs. 61-12, § 302(A). Abortion clinics performing abortions beyond
fourteen weeks of pregnancy measured from the pregnant woman's lmp must
meet the additional patient requirements in Section 309 of Regulation 6112,
which requires additional physician qualifications, medical equipment, and
mandatory laboratory tests. See id. § 302(B). Abortions beyond eighteen
weeks of pregnancy measured from the pregnant woman's lmp must be performed
in a hospital, although a licensed ambulatory surgical center that is also
licensed as an abortion clinic may perform abortions on patients through
twenty-six weeks of pregnancy measured from the pregnant woman's lmp. See
id. § 302(A). |
| [251] | *fn10 Of note, the district court
found that the defendants presented insufficient evidence to support a finding
that sexually transmitted diseases are more prevalent in woman seeking abortions
or that abortion clinics present a public health problem in this regard.
See Greenville Women's Clinic, 66 F. Supp. 2d at 733 n.16. |
| [252] | *fn11 The lowest figure represents
the defendants' revision of the plaintiffs' estimates of complying with
Regulation 61-12. The highest figure represents the plaintiffs' estimate.
The district court observed that neither figure, however, takes into account
the standard 15% profit factor which the plaintiffs' accountant testified
would be appropriate. See Greenville Women's Clinic, 66 F. Supp. 2d at 717
n.10. |
| [253] | *fn12 At trial, the parties entered
into several notable stipulations concerning the cost of complying with
certain specific provisions of Regulation 61-12: (1) When directly billing
physicians, laboratories in South Carolina generally charge between $20
and $40 per sample to perform a combined test for chlamydia and gonorrhea.
(2) When directly billing physicians, laboratories in South Carolina generally
charge between $17 and $30 per sample to test for the Du variant. (3) When
directly billing physicians, laboratories in South Carolina charge between
$7 and $20 per sample to perform a test for syphilis and between $10 and
$22 to perform a test from a pap smear. |
| [254] | *fn13 At trial, the plaintiffs presented
evidence that, to comply with Regulation 61-12, CWMC would require renovations
costing approximately $27,235, that Dr. Lynn's Greenville practice would
require renovations costing approximately $2,700, that Dr. Lynn's Beaufort
office would need renovations costing approximately $12,256, and that GWC
would need renovations costing approximately $3,700. |
| [255] | *fn14 The district court's finding
in this regard was premised on the testimony of the plaintiffs' expert,
Dr. Stanley Henshaw, who is currently deputy director of research at the
Alan Guttmacher Institute in New York, where he conducts studies relating
to family planning and abortion services. Dr. Henshaw testified that an
increase in the price of abortion procedures prevents a number of women
from obtaining abortions and causes other women to delay their abortions
until further along into their pregnancies. Dr. Henshaw also testified that
relatively small increases in the cost of an abortion will have this effect,
and that an increase of just $25 can be expected to prevent one or two out
of every 100 low-income women seeking an abortion from being able to obtain
one. Dr. Henshaw also testified that a decrease in the number of abortion
providers in South Carolina will result in a decrease in the number of women
who are able to obtain an abortion in the state, and a corresponding increase
in the number of women who must travel to obtain the procedure, e.g., from
Beaufort to Savannah, Georgia and/or Charleston, South Carolina. Such a
need to travel will, in turn, reduce the ability to obtain an abortion or
result in a delay in obtaining the abortion. And the need to travel carries
its own costs, which will increase the overall cost of obtaining the abortion
and compound the financial problem. |
| [256] | *fn15 In light of its ruling that
Regulation 61-12 violated the Due Process and Equal Protection Clauses of
the Fourteenth Amendment, the district court declined to address the plaintiffs'
remaining claims that Regulation 61-12: (1) was unconstitutionally vague;
(2) violated the abortion patients' confidentiality rights; and (3) violated
the Establishment Clause of the First Amendment. |
| [257] | *fn16 Because Regulation 61-12 applies
to first trimester abortion providers, the plaintiffs have standing to challenge
the constitutionality of the regulation. See Virginia v. Am. Booksellers
Ass'n, 484 U.S. 383, 392 (1988); Doe v. Bolton, 410 U.S. 179, 188 (1973). |
| [258] | *fn17 The Supreme Court in Casey overruled
only those parts of Akron that were "inconsistent with Roe's statement
that the state has a legitimate interest in promoting the life or potential
health of the unborn." Casey, fn505 U.S. at 870. Thus, the Akron decision
continues to inform us as to the propriety of regulations purportedly enacted
to further the state's interest in maternal health. |
| [259] | *fn18 In the district court, the defendants
argued that selected diseases are more prevalent in women seeking abortions
or that abortion clinics present a public health problem in this regard.
However, the district court found insufficient credible evidence to support
such a finding. |
| [260] | *fn19 The majority implies that Regulation
61-12 requires DHEC to treat all abortion patient records as confidential.
See ante at 23-24. However, Regulation 61-12 imposes no such requirement
on DHEC. Rather, under Regulation 61-12, only the abortion clinic must treat
patient records as confidential. See S.C. Code Ann. Regs. 61-12, § 402.
Succinctly put, Regulation 61-12 allows DHEC to enter an abortion clinic,
inspect its records, and make photocopies of these records, see id. § 102(F),
and Regulation 61-12 places no limitation on DHEC's use of the records once
photocopies are made. Thus, Regulation 61-12 differs markedly from the provisions
upheld by the Supreme Court in Whalen v. Roe, 429 U.S. 589 (1977), and Planned
Parenthood v. Danforth, 428 U.S. 52 (1976), two cases cited by the majority.
See ante at 23-24. In each of these cases, the statute at issue required
the state agency which had access to the patient records to treat the records
as confidential and/or significantly limited the state agency's use of the
patient records. See Whalen, 429 U.S. at 594 (New York statute had extensive
measures to insure records remained confidential and provided that the public
disclosure of the identity of patients was expressly prohibited); Danforth,
428 U.S. at 79-81 (Missouri statute mandated that patient information required
on patient forms was confidential and to be used only for statistical purposes).
In my view, Regulation 61-12 is more akin to a provision of a Pennsylvania
statute rejected by the Supreme Court in Thornburgh v. American College
of Obstetricians and Gynecologists, 476 U.S. 747 (1986); in that case, even
though the Pennsylvania law under review stated that patient reports were
not public records, Pennsylvania law permitted the reports, which contained
both information about the women who obtained abortions and information
about the doctors who performed them, to be made public and also did not
limit the Commonwealth's use of patient information. See id. at 764-68.
One other point on the issue of confidentiality is worth noting. Both the
guidelines of the NAF and ACOG prohibit the release of any medical record
without the patient's consent. |
| [261] | *fn20 The majority seems to intimate
that an increase in the cost of obtaining an abortion effectuated by the
promulgation of a health regulation is irrelevant to the undue burden calculus.
See ante at 22. According to the majority, to hold otherwise "would
necessitate the formulation of an arbitrary cost threshold beyond which
a price increase may not pass." Id. at 23. This, in turn, "would
irrationally hamstring the State's effort to raise the standard of care
in certain abortion clinics . .. simply because the clinics' performance
falls so far below appropriate norms that the expense of upgrading their
practices and equipment exceeds the arbitrarily defined amount." Id.
at 23. Unlike the majority, I believe that an increase in the cost of having
an abortion effectuated by the promulgation of a health regulation is highly
relevant to the undue burden inquiry. First, in Casey, the Supreme Court
noted that a significant increase in the cost of obtaining an abortion alone
can constitute an undue burden on the right to have an abortion. See Casey,
505 U.S. at 901 ("While at some point increased cost could become a
substantial obstacle, there is no such showing on the record before us.").
Second, the Supreme Court stated in Casey that a statute which, while furthering
a state interest, has the effect of placing a substantial obstacle in the
path of a woman's choice cannot be considered a permissible means of serving
its legitimate ends. See id. at 877. |
| [262] | *fn21 Although the South Carolina
legislature directed DHEC to regulate abortion facilities which performed
five or more first trimester abortions per month, while leaving other licensed
physicians under the exclusive supervision of the Board of Medical Examiners,
it is undisputed that DHEC retained the discretion to refrain from treating
abortion clinics and abortions differently than comparable facilities and
procedures. For example, DHEC could have treated abortion clinics like other
physicians' offices and clinics by promulgating regulations consistent with
what is already required in physicians' offices by other laws and accepted
standards. As to the physical plant requirements of Regulation 61-12, DHEC
could have adopted regulations requiring the abortion clinic to meet all
applicable building codes. As to staff qualifications and medical records,
DHEC could have required the supervising physician to hire staff and maintain
medical records that, in his or her professional discretion, would appropriately
provide for the needs and rights of the patients. On the other hand, with
regard to needs unique to the abortion procedure, DHEC could have treated
abortion providers differently from other physicians' offices and clinics,
but only based on actual differences between those facilities. Instead,
DHEC placed onerous burdens upon abortion providers which are neither justified
by actual differences nor rationally related to the state's legitimate interest
in protecting the health and safety of women seeking first trimester abortions. |
| [263] | *fn22 With regard to the argument
of the defendants attacking the district court's award of attorneys' fees,
the argument is without merit. |
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