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U.S. Court of Appeals, Fourth Circuit
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No. 01-2090, No. 01-2235
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306 F.3d 141, 317 F.3d 357, 2002.C04.0002562
<http://www.versuslaw.com>
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September 19, 2002
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Rehearing en banc granted by order filed November 8, 2002. Opinion
vacated.
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Order of November 8, 2002 vacated and rehearing en banc denied by
order filed November 15, 2002. Opinion reinstated.
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GREENVILLE WOMEN'S CLINIC; WILLIAM LYNN, MD, ON BEHALF OF
THEMSELVES AND THEIR PATIENTS SEEKING ABORTIONS, PLAINTIFFS-APPELLANTS,
AND CHARLESTON WOMEN'S MEDICAL CLINIC, INCORPORATED,
PLAINTIFF,
v.
COMMISSIONER, SOUTH CAROLINA DEPARTMENT OF HEALTH AND
ENVIRONMENTAL CONTROL; GOVERNOR OF SOUTH CAROLINA; CHARLES MOLONY CONDON,
IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL OF THE STATE OF SOUTH
CAROLINA, DEFENDANTS-APPELLEES.
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Appeals from the United States District Court for the District of
South Carolina, at Greenville. Henry M. Herlong, Jr., District Judge.
(CA-96-1898-6-20)
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Counsel
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Argued: Bonnie Scott Jones, The Center For Reproductive Law &
Policy, New York, New York, for Appellants. Boyd Benjamin Nicholson, Jr.,
Haynsworth, Sinkler, Boyd, P.A., Greenville, South Carolina, for
Appellees.
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ON Brief: Randall Scott Hiller, Greenville, South Carolina, for
Appellants. George Dewey Oxner, Jr., Floyd Matlock Elliott, Haynsworth,
Sinkler, Boyd, P.A., Greenville, South Carolina; Charles Molony Condon,
James Emory Smith, Jr., Office OF The Attorney General, Columbia, South
Carolina; Nancy Staats Layman, Department OF Health And Environmental
Control, Columbia, South Carolina, for Appellees.
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Before Niemeyer and King, Circuit Judges, and James H. Michael, Jr.,
Senior United States District Judge for the Western District of Virginia,
sitting by designation.
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The opinion of the court was delivered by: Niemeyer, Circuit
Judge
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PUBLISHED
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Argued: April 5, 2002
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Affirmed in part and reversed in part by published opinion. Judge
Niemeyer wrote the opinion, in which Senior Judge Michael joined. Judge
King wrote a dissenting opinion.
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OPINION
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This appeal continues our review of the facial constitutional
challenges made by abortion clinics in South Carolina to Regulation 6112
of the South Carolina Department of Health and Environmental Control,
establishing standards for licensing abortion clinics. In Greenville
Women's Clinic v. Bryant, 222 F.3d 157 (4th Cir. 2000), cert. denied, 531
U.S. 1191 (2001) ("Bryant I"), we held (1) that Regulation 61-12 did not
place an undue burden on a woman's decision whether to seek an abortion in
violation of the liberty interest protected by the Due Process Clause and
(2) that the regulation did not distinguish unreasonably between clinics
that performed a specified number of abortions and those that did not in
violation of the Equal Protection Clause.
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On remand, the district court addressed the remaining challenges made
to Regulation 61-12, rejecting the abortion clinics' contentions that the
regulation unconstitutionally delegates licensing authority to
non-governmental third parties without standards; that it violates the
Establishment Clause of the First Amendment; and that it is void for
vagueness. The district court did, however, conclude that § 102(F) of the
regulation, which provides South Carolina inspectors access to records of
abortion clinic patients, infringes on a constitutional right to
informational privacy insofar as it authorizes the disclosure of patients'
names to State inspectors.
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On the cross-appeals of the parties, we reject all of the remaining
constitutional challenges to Regulation 61-12 and accordingly affirm in
part and reverse in part.
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I.
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As authorized in §§ 44-41-10 et seq. and 44-7-110 et seq. of the Code
of Laws of South Carolina, the South Carolina Department of Health and
Environmental Control ("DHEC") promulgated Regulation 61-12, entitled
"Standards for Licensing Abortion Clinics." Because Regulation 61-12,
which comprehensively regulates abortion clinics in South Carolina, was
summarized more fully in Bryant I, 222 F.3d at 160-62, we only briefly
summarize its ten chapters here:
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Chapter 1, entitled "Definitions and Requirements for Licensure,"
includes definitions of relevant terms and sets forth the general
requirement that abortion clinics in South Carolina be licensed and
subject to inspections. A regulated abortion clinic is defined as "[a]ny
facility, other than a hospital as defined in Section 101.J, in which any
second trimester or five or more first trimester abortions per month are
performed." DHEC Reg. 61-12, § 101(B). Any facility in violation of the
regulation may be subjected to civil penalties, including suspension or
revocation of its license or a monetary fine. Id. § 103.
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Chapter 2, entitled "Administration and Management," describes
operational policies and procedures, as well as personnel requirements. It
also includes a summary of the patients' rights. Id. § 209.
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Chapter 3, entitled "Patient Care," prescribes minimum procedures
required in the treatment of all patients and a limitation of the proce
dures that may be provided at the facility. The chapter includes
admissions criteria, staff responsibilities, and details regarding
abortion procedure and follow-up care. Id. § 301. Also included within
this chapter are certain facility requirements, such as pharmaceutical
capabilities and laboratories. Id. §§ 303, 304. There is a specification
of minimum equipment and supplies, id. § 306, and a requirement that
clinics implement an ongoing plan for improvement of patient care, id. §
308. The chapter further specifies that for purposes of emergency care,
staff or consulting physicians shall have admitting privileges at a local
hospital that has appropriate obstetrical and gynecological services. Id.
§ 305. Finally, the chapter requires that abortion clinics make
arrangements 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.
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Chapter 4, entitled "Medical Records and Reports," sets forth detailed
requirements for the generation of patient records, which must be
maintained and stored in a "safe location" for at least ten years. Id. §§
401, 402. This chapter also requires abortion clinics to report to the
appropriate State agency each abortion performed, each "fetal death" when
the fetus has developed beyond a certain stage, and each "accident or
incident occurring in the facility which involves patients, staff, or
visitors." Id. § 403.
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Chapter 5, entitled "Functional Safety and Maintenance," deals with
safety in clinics' handling of hazardous materials, needles, syringes, and
similar materials. Id. § 501. It also requires the maintenance of
emergency equipment and a plan for disaster preparedness. Id. §§ 502,
503.
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Chapter 6, entitled "Infection Control and Sanitation," describes
procedures for maintaining sterilized supplies and equipment, as well as
requirements for having clean linen and towels, clean facilities and
grounds, and waste disposal.
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Chapter 7, entitled "Fire Protection and Prevention," details specific
requirements for fire protection and safety, including mandatory fire
drills and alarm testing.
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Chapter 8, entitled "Design and Construction," sets forth requirements
for approval of the design and construction of abortion clinics and
includes requirements for specific types of rooms, security, and
equipment.
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Chapter 9, entitled "Prerequisites for Initial Licensure," includes
the requirements for plan and construction approval, the existence of
documentation demonstrating licensure, and the necessary facility
permits.
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Finally, Chapter 10, entitled "General," states in its entirety,
"Conditions arising that have not been addressed in these regulations
shall be managed in accordance with the best practices as interpreted by
the Department."
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On June 27, 1996, one day before Regulation 61-12 was to become
effective, the plaintiffs -- two abortion clinics and a doctor operating
abortion clinics -- commenced this action on behalf of themselves and
their patients to obtain a declaratory judgment that Regulation 6112 was
facially unconstitutional on numerous grounds. The district court agreed
with the plaintiffs in part, finding that Regulation 61-12 placed an undue
burden on a woman's Fourteenth Amendment due process right to choose
whether to seek an abortion and that the regulation violated the Equal
Protection Clause of the Fourteenth Amendment by treating abortion clinics
differently than other healthcare facilities without a rational basis for
doing so. Greenville Women's Clinic v. Bryant, 66 F. Supp. 2d 691 (D.S.C.
1999). Because the district court struck down the regulation on two
different grounds, it did not decide the plaintiffs' other constitutional
challenges.
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On appeal, we reversed, holding that Regulation 61-12 did not impose
an undue burden on a woman's right to choose whether to seek an abortion
and that South Carolina had a rational basis for treating abortion clinics
differently from other medical facilities. Bryant I, 222 F.3d at 171-72,
174. We found that Regulation 61-12 serves a valid purpose in safeguarding
the health of women and does not aim directly at a woman's right to make
the decision to have an abortion. The $23-$75 increased cost per abortion
attributable to compliance with Regulation 61-12 was, we held, an
incidental effect that, while making abortions modestly more expensive,
did not unduly burden a woman's right to make the abortion decision. Id.
at 169-72. Because the regulation did not strike at the abortion-decision
right itself, we also applied a rational-basis standard to the equal
protection analysis and concluded that South Carolina had a rational basis
for regulating abortion clinics while not regulating other healthcare
facilities. We noted that abortions are "inherently different from other
medical procedures, because no other procedure involves the purposeful
termination of a potential life." Id. at 174 (quoting Harris v. McRae, 448
U.S. 297, 325 (1980) (emphasis omitted)). At bottom, we concluded that
"[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." Id.
at 175.
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After the Supreme Court denied the plaintiffs' petition for a writ of
certiorari, see 531 U.S. 1191 (2001), we remanded the case to the district
court to address the plaintiffs' other constitutional
challenges.
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On remand, the district court rejected all but one of the plaintiffs'
other constitutional challenges, concluding that Regulation 61-12 did not
improperly delegate veto power to third parties; that it did not violate
the Establishment Clause of the First Amendment; and that it was not
unconstitutionally vague. The Court did, however, find that § 102(F)(2)
violated patients' right to privacy insofar as it authorized State
inspectors access to patients' records in which the patients were
identified. Greenville Women's Clinic and William Lynn, M.D. (hereafter,
"the abortion clinics") appealed the district court's rulings upholding
the constitutionality of Regulation 61-12, and South Carolina
cross-appealed the district court's ruling finding § 102(F)(2) in
violation of patients' privacy rights.
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II.
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The abortion clinics contend first that Regulation 61-12 provides for
the standardless delegation of licensing authority to third persons, in
violation of the Due Process Clause. They assert that the regulation makes
licensing "contingent upon the cooperation of hospitals, clergy and other
third parties, upon whose decisions the regulation imposes no standard or
limitation." To support this argument, they rely on Yick Wo v. Hopkins,
118 U.S. 356, 370 (1886), and Hornsby v. Allen, 326 F.2d 605, 608 (5th
Cir. 1964).
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Although Regulation 61-12 does not directly grant any veto power to
third persons over the issuance of a license, it does require, as a
condition of licensure, that clinic doctors maintain certain admitting
rights with local hospitals and referral arrangements with other relevant
experts. Specifically, Regulation 61-12 requires (1) that each abortion
clinic have an agreement with a physician board-certified in obstetrics
and gynecology who has admitting privileges at a local hospital to be
available during "operating-hours," DHEC Reg. 61-12, § 205(c)(2); (2) that
a physician at the clinic have admitting privileges at a local hospital
with "obstetrical/gynecological services," id. § 305(A); see also id. §
309(B); and (3) that each abortion clinic make arrangements for 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.
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South Carolina argues that these admitting privileges and referral
arrangements are necessary for the health and safety of patients.
Moreover, it points out that these requirements are consistent with
existing standards of the American College of Obstetricians and
Gynecologists, as stated in its "Standards for Obstetric-Gynecologic
Services" (7th ed. 1995), and of the National Abortion Federation, as
stated in its "Standards for Abortion Care" (1988). It also denies that
the regulation gives any of the third party specialists a veto power over
licensure of abortion clinics and notes that, in practice, the abortion
clinics' fears about being denied a license or losing their license
because of any inability to establish such arrangements are not supported
by the record. Indeed, both Greenville Women's Clinic and Dr. Lynn, the
appellants in this case, are already licensed in South Carolina to perform
abortions, and both have admitting privileges or arrangements with
physicians who have admitting privileges at local hospitals with
obstetrical and gynecological services. This evidence, South Carolina
argues, is "fatal" to the abortion clinics' position.
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We begin by emphasizing, as we did in Bryant I, that the challenge to
Regulation 61-12 is a facial one and therefore "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). To show the necessary respect
to legislative departments, particularly in light of Article III's
limitation of judicial power to cases and controversies, we require
evidence -- as opposed to speculation -- sufficient to rebut the
regulation's presumptive constitutionality. Yet, in this record, we find
only speculation.
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There is nothing in the record or, indeed, in the general experience
in South Carolina that suggests that the requirements to have admitting
arrangements with local hospitals and referral arrangements with local
experts in various related fields present a substantial impediment to
obtaining or retaining a license. To the contrary, the appellants in this
case have obtained licenses and have made such arrangements. The abortion
clinics' asserted fears are further undermined by South Carolina's
requirement that public hospitals not act unreasonably, arbitrarily,
capriciously, or discriminatorily in granting or denying admitting
privileges. See, e.g., In re Zaman, 329 S.E.2d 436, 437 (S.C. 1985); cf.
Huellmantel v. Greenville Hosp. Sys., 402 S.E.2d 489, 491 (S.C. Ct. App.
1991) (stating that a physician's interest in being reappointed to a
public hospital staff is protected by procedural and substantive due
process requirements of the Fourteenth Amendment). The required referral
arrangements present even lower practical barriers. Indeed, they are
required to be made only "as needed." See DHEC Reg. 61-12, §
307.
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These requirements of having admitting privileges at local hospitals
and referral arrangements with local experts are so obviously beneficial
to patients, see, e.g., Women's Health Ctr. of West County, Inc. v.
Webster, 871 F.2d 1377, 1382 (8th Cir. 1989), and the possibility that the
requirements will amount to a third-party veto power is so remote that, on
a facial challenge, we cannot conclude that the statute denies the
abortion clinics due process. See Whalen v. Roe, 429 U.S. 589, 601-02
(1977) (noting that, on a facial challenge of a statute, a "remote
possibility" is "not a sufficient reason for invalidating" a statute); see
also Webster, 871 F.2d at 1382 (rejecting due process challenge to a
statute requiring physicians performing abortions to have surgical
privileges at a hospital). This conclusion is further reinforced by the
right given by Regulation 61-12, § 102(L), for clinics to seek a waiver or
exception.
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Accordingly, we reject the abortion clinics' due process challenge to
Regulation 61-12 based on the regulation's requirement that abortion
clinics have admitting privileges to local hospitals and referral
arrangements with relevant experts.
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III.
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The abortion clinics also contend that § 307 of Regulation 61-12 is a
State-sponsored "law respecting an establishment of religion," as
prohibited by the First and Fourteenth Amendments. Section 307 provides in
relevant part:
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Arrangements shall be made for consultation or referral services in
the specialties of . . . clergy . . ., to be available as
needed.
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The abortion clinics contend that this section requires that the
clinics "establish formal, ongoing relationships with clergy persons who
will be available to provide counseling services to their patients upon
referral." And they argue that "[u]nder the provision, [the abortion
clinics] must assess their patients' need for religious counseling and
make referrals to such counseling as part of their practice of medicine.
To enforce the regulation, DHEC must assess the adequacy of [the abortion
clinics'] criteria and mechanisms for making such referrals." Relying on
this reading of § 307, the abortion clinics maintain that the regulation
violates the Establishment Clause of the First Amendment because (1) it
coerces participation in religion; (2) it improperly entangles the State
in religion; and (3) it creates "a symbolic union between church and
state."
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We conclude, however, that the abortion clinics' argument is grounded
on a substantial misreading of § 307, imputing obligations and
relationships that are not prescribed by the regulation. Section 307 does
not require abortion clinics to become involved in religion, or to counsel
their patients in religion, or to make any religious judgments. Rather,
they are required only to have "arrangements" for referring patients to
clergy "as needed." These arrangements might amount to no more than a list
of clergy and other specialists or a readily accessible telephone book to
consult as required by the needs of a particular patient. Since the need
for a referral cannot be known until the patient requests a referral, the
"arrangement" cannot be made until then. And even then it need not involve
more than a communication to a clergy member expressing the patient's
request and perhaps setting up a consultation time.
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The requirements of § 307 simply cannot be construed to "force
physicians to participate in religion," or to "assess patients' needs for
religious counseling," or to "force physicians to support religion" -- as
the abortion clinics in this case argue. Moreover, the language of the
regulation does not support the abortion clinics' contention that the DHEC
may evaluate whether abortion clinics have established an adequate system,
adequate number, or adequate variety of clergy to whom referrals might be
made. Finally, § 307 does not grant the religious community any veto power
over the clinic's licensing application "thus creating a symbolic union
between church and state." Because the section calls for arrangements "as
needed," a clinic need not assist the patient by making a referral to
clergy unless the patient so requests.
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Rather than establishing religion, this section would appear at most
to require a clinic to accommodate the requests of patients to exercise
religion, a right also protected by the First Amendment. See U.S. Const.
amend. I (forbidding any law that "prohibits the free exercise" of
religion). Particularly because of the gravity of a woman's right to make
the abortion decision, the regulation recognizes the patient's potential
desire to consult clergy in making that decision. As the Supreme Court
observed in Planned Parenthood of S.E. Penn. v. Casey, "the abortion
decision . . . is more than a philosophic exercise. Abortion is a unique
act [that is] fraught with consequences." 505 U.S. 833, 852 (1992). And
similarly, we observed in Bryant I:
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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. 222 F.3d at
175.
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Accordingly, we conclude that the requirement imposed by § 307 on
abortion clinics to make arrangements for referral services to clergy, as
needed, does not, on its face, establish religion in violation of the
First Amendment. Cf. Brown v. Gilmore, 258 F.3d 265 (4th Cir. 2001)
(holding that a State statute requiring a moment of silence to enable
students to meditate, pray, or engage in any other silent activity does
not establish religion in violation of the First Amendment), cert. denied,
122 S. Ct. 465 (2001). In so concluding, we note that this facial
challenge cannot encompass every way in which the DHEC might require a
clinic to comply with § 307. Specific instances of enforcement may, of
course, still be challenged on a case-by-case basis as they
occur.
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IV.
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Finally, the abortion clinics contend that Regulation 61-12 is void
for vagueness, in violation of the Due Process Clause. They contend that
the regulation contains a number of requirements that employ "open-ended"
terms lacking any fixed meaning, such as "best practice" or "case-by-case"
basis. They maintain that the regulation uses ambiguous adjectives, such
as "intensive job-related training," which qualifies a non-physician for
work at a clinic. They assert that the regulation contains misnomers,
giving as an example that the facilities must be kept "neat, clean and
free from odors" and noting that because every medical office has odors,
the regulation cannot mean what it says. Finally, they point to inherently
ambiguous requirements such as the requirement that "all staff and/or
consulting physicians shall have admitting privileges at one or more local
hospitals." The abortion clinics have identified the following list of
provisions that they challenge, and they suggest that this list is not
exhaustive:
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1. Section 102(J), which prohibits using an abortion facility name
that is similar to the name of another such facility, but does not define
how "similarity" will be determined.
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2. Section 102(L), which allows DHEC to make exceptions to Regulation
61-12 "where it is determined that the health and welfare of the community
require the services of the facility."
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3. Section 103(F), which gives DHEC discretion with respect to a
particular violation to impose any penalty within the range of possible
penalties.
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4. Section 201(B), which requires abortion providers to create, and
DHEC to assess, policies and procedures on such matters as "patient
rights" and "functional safety."
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5. Section 204, which requires that staff be "adequately trained and
capable of providing appropriate service and supervision to the
patients."
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6. Section 204(A), which requires that a provider "verify" an
employee's "health and personal background."
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7. Section 204(D), which prohibits employees and volunteers with "any
. . . contagious disease or illness [from working] in any capacity in
which there is a likelihood of such person transmitting disease to other
individuals."
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8. Section 205(C)(1), which requires physicians performing abortions
to be "properly qualified by training and experience to perform pregnancy
termination procedures."
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9. Section 301, which requires the creation of various policies and
procedures "designed to ensure professional and safe care for
patients."
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10. Section 305(A), which requires that "all staff and/or consulting
physicians shall have admitting privileges at one or more local
hospitals."
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11. Section 306, which requires that "appropriate equipment and
supplies" be maintained, with no specific requirements.
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12. Section 307, which requires among the required consultation
services, "any other indicated field, to be available as
needed."
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13. Sections 308(A) and (C), which require abortion facilities to
establish a quality improvement plan that involves "criteria-based"
evaluation of patient care.
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14. Section 501(A), which requires abortion facilities to promulgate a
range of policies and procedures "to enhance safety."
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| [70] |
15. Section 602(A), which requires adequate space for sterile supplies
and equipment.
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16. Section 604, which requires that the facilities "be kept neat,
clean and free from odors."
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17. Section 606, which requires that "all outside areas . . . shall be
kept free of . . . grass . . . that may serve . . . as a haven for
insects."
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| [73] |
18. Section 807, which requires that an "adequate number of
examination/procedure rooms" and an "adequate number of recovery rooms" be
provided.
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| [74] |
19. Chapter 10, which states in its entirety, that
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"[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."
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| [76] |
In sum, the abortion clinics complain that Regulation 61-12 does not
provide sufficient specifics to explain what conduct is actually mandated
or prohibited.
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| [77] |
The district court reviewed the abortion clinics' "litany of phrases
which [were] allegedly unconstitutionally vague," and after considering
the phrases in their context and taking Regulation 61-12 as a whole, the
court concluded that "people of ordinary intelligence would be able to
understand what the regulation requires." The court also stated that the
regulation "does not encourage arbitrary and discriminatory enforcement.
In fact, it appears that the majority of Regulation 61-12 is identical to
the American College of Obstetricians and Gynecologists ("ACOG") standards
for obstetricians and gynecologists."
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| [78] |
"A statute can be impermissibly vague for either of two independent
reasons. First, if it fails to provide people of ordinary intelligence a
reasonable opportunity to understand what conduct it prohibits. Second, if
it authorizes or even encourages arbitrary and discriminatory
enforcement." Hill v. Colorado, 530 U.S. 703, 732 (2000). But because we
are "condemned to the use of words, we can never expect mathematical
certainty from our language." Grayned v. City of Rockford, 408 U.S. 104,
110 (1972). As such, a regulation is not void for vagueness unless it is
so unclear with regard to what conduct is prohibited that it "may trap the
innocent by not providing fair warning," or it is so standardless that it
enables "arbitrary and discriminatory enforcement." Id. at 108.
Furthermore, the degree of clarity required depends on the type of
regulation:
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| [79] |
Economic regulation is subject to a less strict vagueness test because
its subject matter is often more narrow, and because businesses . . . can
be expected to consult relevant legislation in advance of action. . . .
The Court has also expressed greater tolerance of enactments with civil
rather than criminal penalties because the consequences of imprecision are
qualitatively less severe. Village of Hoffman Estates v. Flip-side,
Hoffman Estates, Inc., 455 U.S. 489, 498-99 (1982) (footnotes
omitted).
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| [80] |
Although portions of Regulation 61-12 fall short of mathematical
precision, we are satisfied that a reasonable person, reading the
regulation in its entirety and in the context of South Carolina statutes,
would be able to interpret the regulation and determine what is required
and what conduct is prohibited. For example, § 205(C)(1), the violation of
which would allow the most serious penalty of the sections identified as
vague by the abortion clinics, provides that abortion-clinic physicians be
"properly qualified by training and experience to perform pregnancy
termination procedures." The abortion clinics argue that they do not
understand how physicians need to be qualified to satisfy this provision.
Yet, physicians routinely hold themselves out as qualified to practice in
given areas based on their training and experience, and such a standard is
routinely applied in the medical field to define whether a physician
breached the ordinary standard of care or whether a physician is competent
to perform a specialized surgery. See, e.g., Hoeffner v. The Citadel, 429
S.E.2d 190, 192 (S.C. 1993) (requiring expert testimony to determine
defendant doctor's standard of care and breach thereof). In short,
physicians have no difficulty in stating that they are qualified by
training and experience to practice in a given area or to perform
specified procedures. We believe that the other challenged provisions can
similarly be followed by reasonably prudent abortion providers who are
mindful of their patients' health and safety.
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| [81] |
The most unclear provision in Regulation 61-12 may be Chapter 10,
which provides 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." But this provision essentially appears
to give the DHEC no power beyond its ability to promulgate further
regulations as they become necessary. Moreover, any violation of Chapter
10 could only amount to a "Class III" violation, which would call for
nothing more than a warning sanction. Accordingly, we can see no reason to
conclude that the imprecision of this particular provision violates the
abortion clinics' due process rights.
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| [82] |
In addition to concluding that persons of reasonable intelligence
would be able to understand what is required of them by Regulation 61-12,
we note that the penalties are civil rather than criminal. Regulation
61-12 divides its penalties into three classes, and a Class I offense, the
most serious, is subject, on the first offense, to a maximum fine of
$1,000. DHEC Reg. 61-12, § 103(F). A Class II offense is subject, on the
first offense, to a maximum fine of $500, id., and a Class III offense, on
the first offense can lead at most, to a warning, id. Even when a fine is
called for, there are suggested factors for determining the amount,
including the facility's efforts to correct the identified problem, the
facility's overall conditions, and the facility's history of compliance.
Id. § 103(E). This consideration of the violator's good faith effort to
comply makes arbitrary enforcement even less likely. Moreover, as observed
in Village of Hoffman Estates, we can expect abortion clinics to consult
relevant legislation in advance of action or to seek clarification from
appropriate administrative sources when necessary. See 455 U.S. at
498.
|
| [83] |
In the context of a facial challenge to a regulation, it is
inappropriate to speculate regarding a worst-case scenario. See Hill, 530
U.S. at 733 (noting that "speculation about possible vagueness and
hypothetical situations not before the Court will not support a facial
attack on a statute when it is surely valid 'in the vast majority of its
intended applications'" (quoting United States v. Raines, 362 U.S. 17, 23
(1960))). Accordingly, we affirm the district court's conclusion that
Regulation 61-12 is not unconstitutionally vague.
|
| [84] |
V.
|
| [85] |
South Carolina, in its cross-appeal, challenges the district court's
ruling that § 102(F)(2) of Regulation 61-12 is unconstitutional. That
section provides: "Department inspectors shall 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." The district court stated that because
South Carolina identified "no compelling interest in the disclosure of
identifying information" -- i.e., information that reveals to the State
the names of patients procuring abortions -- § 102(F)(2) violates the
patient's constitutional right to privacy "insofar as it requires access
to identifying information." In a footnote, the court allowed that "[t]his
constitutional problem can be cured by the plaintiffs redacting the
documents to remove such information." South Carolina contends that,
notwithstanding the district court's conclusion, it needs the information
to monitor abortions and to assure compliance with the health-care
standards in Regulation 61-12 aimed at preserving maternal health. It
notes that even the National Abortion Federation, in its "Standards for
Abortion Care," states that the "maintenance of complete and accurate
records is essential for quality patient care and meaningful review of
services." The Federation's "Standards of Abortion Care" explains that the
"reporting of abortion procedures and complications to appropriate private
and legally sanctioned public agencies generally improve[s] family
planning services and public health information." In addition, South
Carolina argues that its statutes and regulations provide adequately for
the privacy of patients' records.
|
| [86] |
The abortion clinics contend, on the other hand, that disclosure of
patients' names and records violates the patients' privacy rights as
defined in Whalen v. Roe, 429 U.S. 589, 597 (1977) (recognizing a right to
privacy "in avoiding disclosure of personal matters"), and Walls v. City
of Petersburg, 895 F.2d 188, 192 (4th Cir. 1990) (requiring the State to
offer a "compelling" interest before disclosing protected information).
They argue that the confidentiality of patient information is "vital to
women seeking abortions because they may face harassment from their
partners, co-workers, and others for having decided to undergo an
abortion." And they maintain that disclosing the information also "may
force patients to delay their abortions until they can go to a state where
their confidentiality will be maintained; to go to an unlicenced provider;
or to attempt to self-abort [sic]. Each of these alternatives poses
serious risks to patient health."
|
| [87] |
South Carolina's abortion statute requires that each abortion be
reported to the DHEC within seven days after the abortion is performed.
See S.C. Code Ann. § 44-41-60. The same statute authorizes the DHEC to
promulgate regulations for the maintenance of medical records and reports.
See id. §§ 44-41-70, 44-41-75.
|
| [88] |
To carry out its mandate, the DHEC promulgated Regulation 6112,
comprehensively providing for the generation and maintenance of records
and reporting as necessary to carry out the licensing and regulation of
abortion clinics. Regulation 61-12 requires that written consent be
obtained from each patient obtaining an abortion and that a copy of the
consent be maintained in the patient's record. See DHEC Reg. 61-12, §
201(b)(10). The regulation prescribes a list of items that must be
included in patients' medical records relating to any abortion procedure
performed and requires that the records be maintained in a safe location
for a minimum of ten years. See id. §§ 401, 402. It also requires that
each laboratory test be documented in a report and maintained as part of
the patient's record. See id. § 304(E). With respect to each employee at
an abortion clinic, Regulation 61-12 requires that the clinic maintain a
personnel file, documenting the employee's job description, work
assignments, in-service education, licensure, if applicable, and
tuberculosis skin-testing. See id. § 204(H).
|
| [89] |
In-service training programs, providing employees training in
specified areas at least once annually, must also be documented,
reflecting the program's contents and attendance. See id. § 204(F). The
regulation also requires that clinics maintain records of all controlled
substances. See id. § 303(F). It mandates that the clinics conduct
sterilization procedures and maintain records of those procedures, as well
as safetytesting equipment and alarms. See id. §§ 602(C), 702. And the
regulation requires that the clinic maintain on its premises the
documentation evidencing its licensure in a manner sufficient to inform
patients. See, e.g., id. §§ 203, 208, 209.
|
| [90] |
In addition to its requirements for generating and maintaining
records, Regulation 61-12 imposes reporting requirements. Abortion clinics
must report each abortion and each accident or incident to the Vital
Records and Public Health Statistics section of the DHEC. See id. § 403.
In addition, the abortion clinics are subject to regular inspections, and
DHEC inspectors are given access to all "records and reports" and
authority to make photocopies of those documents "required in the course
of inspections or investigations." See id. § 102(F)(2).
|
| [91] |
The abortion clinics do not seriously challenge the requirement of
generating and maintaining records. Indeed, they would have to acknowledge
that each type of record relates directly to the health or safety
requirements imposed by Regulation 61-12. And the Supreme Court has found
that requiring documentation of this type is in the public interest and
does not violate any constitutional right to privacy. See Whalen v. Roe,
429 U.S. 589 (1977); Planned Parenthood of Central Missouri v. Danforth,
428 U.S. 52 (1976).
|
| [92] |
In Whalen, the Supreme Court upheld, against constitutional attack,
the maintenance of a centralized State computer file that contained the
names and addresses of all persons who had obtained certain prescription
drugs, for which there was both a lawful and an unlawful market.
Recognizing that patients have a protected interest "in avoiding
disclosure of personal matters" as well as an interest in "independence in
making certain kinds of important decisions," 429 U.S. at 599-600, the
Supreme Court nonetheless held that "the New York program does not, on its
face, pose a sufficiently grievous threat to either interest to establish
a constitutional violation." Id. at 600. The Court noted that the
invasions of privacy necessary for the public health were not
"meaningfully distinguishable from a host of other unpleasant invasions of
privacy that are associated with many facets of health care,"
explaining:
|
| [93] |
Unquestionably, some individuals' concern for their own privacy may
lead them to avoid or to postpone needed medical attention. Nevertheless,
disclosures of private medical information to doctors, to hospital
personnel, to insurance companies, and 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. Id. at
602.
|
| [94] |
In response to the appellants' suggestions that the information could
become public through deliberate or negligent conduct in numerous ways,
the Court stated that "the remote possibility that judicial supervision of
the evidentiary use of particular items of stored information will provide
inadequate protection against unwarranted disclosures is surely not a
sufficient reason for invalidating the entire patient-identification
program." Id. at 601-02.
|
| [95] |
Similarly, in Danforth, the patients attacked a recordkeeping
provision of Missouri's abortion statute contending, among other things,
that it invaded the patient's "right to privacy in the physician-patient
relationship." 428 U.S. at 57. Under the Missouri statute, abortion
providers were required to fill out state forms that were to be maintained
confidentially and would be used only for statistical purposes.
Nevertheless, the information was reportable to local, state and national
public health officers. In upholding these requirements, the Court said:
"Recordkeeping and reporting requirements that are reasonably directed to
the preservation of maternal health and that properly respect a patient's
confidentiality and privacy are permissible." Id. at 80. The Court
explained that the requirements of confidentiality and the limited
duration of document-maintenance (seven years) "assist[ed] and
persuad[ed]" the Court to conclude that the recordkeeping requirement had
no "legally significant impact or consequence on the abortion decision or
on the physician-patient relationship." Id. at 81.
|
| [96] |
Similarly, we noted in our previous opinion in this case that the
recordkeeping and copying requirements were justified to ensure compliance
with health care standards. Bryant I, 222 F.3d at 171. We added that this
was particularly so in view of the regulation's requirement that all
records be treated as confidential. While our conclusion in Bryant I was
limited to holding that the recordkeeping requirement did not unduly
burden the abortion decision, the observation is still relevant to this
discussion on privacy insofar as it supports a conclusion that
recordkeeping requirements are meaningful to the overall health and safety
purposes of Regulation 61-12.
|
| [97] |
Accordingly, we conclude that South Carolina's recordkeeping
requirement does not per se violate the Constitution. This does not,
however, answer the entire question of whether the reporting requirements
and the potential for publication through court proceedings renders the
requirements unconstitutional, as the abortion clinics argue. South
Carolina must still demonstrate that the records it requires that contain
personal information will be maintained in confidence to the extent
possible as it uses the records to ensure the health and safety of its
citizens. See Whalen, 429 U.S. at 602 (noting that disclosure to public
health agencies are "an essential part of modern medical practice");
Walls, 895 F.2d at 192 (recognizing limits on an individual's right to
privacy and requiring the government to move a compelling interest only if
there will be disclosure of protected information). We conclude that South
Carolina's statutes and Regulation 61-12 assure the patient's
confidentiality, such that protected information will not be
disclosed.
|
| [98] |
First, with respect to every facility licensed by the DHEC, the
confidentiality of patient files is demanded. Section 44-7-310 of the
South Carolina Code provides that the information received by the DHEC
"which does not appear on the face of the license may not be disclosed
publicly in a manner as to identify individuals or facilities." S.C. Code
Ann. § 44-7-310. The only exception provided is for a proceeding involving
licensure or an order of court. Id. Similarly, § 447-315, which authorizes
the disclosure of information relating to licensed facilities, provides
that "the Department may not disclose the identity of individuals present
in a facility licensed by the department pursuant to this article or
subject to inspection by the department." S.C. Code Ann. §
44-7-315.
|
| [99] |
The abortion statute itself, which requires that each abortion be
reported to the DHEC, also provides that "the names of the patient and
physician may not be reported on the form or otherwise disclosed to the
state registrar." S.C. Code Ann. § 44-41-60. Finally, even in a court
proceeding involving abortion licensure, the abortion statute requires
that the court make an explicit ruling whether "the anonymity of any woman
upon whom an abortion is performed or attempted shall be preserved from
public disclosure if she does not give her consent to such a disclosure."
S.C. Code Ann. § 44-41-360. In making that ruling, the court is explicitly
required to apply the appropriate constitutional standard. See
id.
|
| [100] |
Consistent with these statutory mandates to preserve the privacy of
patients, Regulation 61-12 explicitly requires confidentiality of
patients' records. Section 402 provides that "[a]ll records shall be
treated as confidential." Moreover, employees working in abortion clinics
must be trained on the "confidentiality of patient information and
records, and protecting patient rights." See DHEC Reg. 61-12, § 204(F)(3).
Section 209 requires that each licensed facility have "written policies
and procedures to assure the individual patient the right to dignity,
privacy, safety, and to register complaints with the department." Id. §
209(A) (emphasis added).
|
| [101] |
While § 102(F) authorizes a State inspector to review records for
compliance with the abortion statute and with Regulation 61-12, that
authorization to inspect records does not authorize the inspector to
breach the statutory and regulatory mandates to protect the patient's
privacy. The Supreme Court has recognized that "[r]equiring such
disclosures to representatives of the State having responsibility for the
health of the community, does not automatically amount to an impermissible
invasion of privacy." Whalen, 429 U.S. at 602. As the Court observed in
Danforth, "recordkeeping of this kind, if not abused or overdone, can be
useful to the State's interest in protecting the health of its female
citizens, and may be a resource that is relevant to decisions involving
medical experience and judgment." 428 U.S. at 81.
|
| [102] |
For these reasons, we conclude that the recordkeeping and information
reporting mechanisms adopted by South Carolina in its statutes and in
Regulation 61-12 do not require unnecessary disclosure of protected
information, in violation of the privacy right identified in Whalen, 429
U.S. at 599-600. Even though the abortion clinics can conceive of
circumstances where patients' privacy rights could be violated, either
deliberately or through negligence, we cannot assume that the
confidentiality measures adopted by South Carolina to prevent such
violations will be administered improperly. Whalen, 429 U.S. at
601-02.
|
| [103] |
Accordingly, we reverse the district court's conclusion that
Regulation 61-12 violates patients' privacy rights, as identified in
Whalen, insofar as it permits the disclosure of patient identification to
the State officials administering the program. See Whalen, 429 U.S. at
602-03 (finding constitutional a State maintained computer file containing
the names and addresses of patients for whom drugs had been
prescribed).
|
| [104] |
VI.
|
| [105] |
In sum, on the abortion clinics' constitutional challenges to
Regulation 61-12 based on (1) a standardless delegation of licensing
authority, (2) an alleged violation of the Establishment Clause, and (3) a
claim of vagueness, we reject the abortion clinics' arguments and affirm
the district court. On South Carolina's cross-appeal challenging the
district court's ruling that § 102(F) of Regulation 61-12 is
unconstitutional, we reverse.
|
| [106] |
AFFIRMED IN PART REVERSED IN PART
|
| [107] |
KING, Circuit Judge, dissenting:
|
| [108] |
We today address significant questions arising from one of the most
divisive and contentious issues in our nation's history. Since Roe v. Wade
was decided by the Supreme Court in 1973, the struggle over the existence
and scope of a woman's constitutional right to choose has been a constant
part of our political landscape. In recent years, state legislatures have
taken an increasingly active role in regulating access to abortion; in
many places, burdensome regulations have made abortions effectively
unavailable, if not technically illegal. It is this type of regulation --
micromanaging everything from elevator safety to countertop varnish to the
location of janitors' closets -- that is challenged in this case. 24 S.C.
Code Ann. Regs. 61-12 (Cum. Supp. 2001) (the "Regulation"). *fn1
|
| [109] |
The State of South Carolina is entitled to make a value judgment, as a
matter of its public policy, to favor childbirth over abortion. Rust v.
Sullivan, 500 U.S. 173, 192-93 (1991); Maher v. Roe, 432 U.S. 464, 474
(1977). In accordance with this prerogative, South Carolina has made its
preference clear. For example, while a citizen of the Palmetto State may
obtain a "Choose Life" automobile license plate from the authorities, he
may not obtain a "Choose Choice" license plate. *fn2 S.C. Code Ann. § 56-3-8910 (West 2002). *fn3 Insofar as the legislature in South Carolina wishes to
limit the choices of its female citizens, it has been largely successful.
Eighty percent of the State's counties lack an abortion provider, and
between 1992 and 1996, the number of such providers in the State fell from
eighteen to fourteen. Stanley K. Henshaw, "Abortion Incidence and Services
in the United States, 1995-1996," Fam. Plan. Persp., Vol. 30, No. 6,
November/December 1998.
|
| [110] |
South Carolina is not, however, entitled to adopt and pursue an
anti-abortion agenda at the expense of constitutional rights. Having
carefully examined the constitutional challenges made by Greenville
Women's Clinic and other abortion providers (collectively, the
"Plaintiffs") to aspects of the Regulation, I am inexorably led to
conclude that certain of its provisions violate the Constitution. I part
company with my friends in the majority in four respects:
|
| [111] |
First, the majority improperly reverses the district court on the
informational privacy issue;
|
| [112] |
Second, the majority ignores the conflict between the clergy referral
requirement and the Establishment Clause;
|
| [113] |
Third, the majority upholds unconstitutionally vague and ambiguous
provisions of the Regulation; and
|
| [114] |
Fourth, the majority endorses a standardless delegation of state power
that contravenes the Due Process Clause.
|
| [115] |
I will discuss each of these points in turn. *fn4
|
| [116] |
I.
|
| [117] |
On the first of the Plaintiffs' four challenges to the Regulation, I
would affirm the district court and hold § 102(F)(2) (the "Disclosure
Provision") to be unconstitutional. *fn5 The Disclosure Provision concerns the State's access
to private medical records, *fn6 and the district court properly found that South
Carolina had failed to demonstrate a sufficient interest in obtaining
information identifying the female patients of abortion clinics. *fn7 The majority incorrectly reverses the district court
on this issue.
|
| [118] |
The Supreme Court has identified two types of privacy rights, both
rooted in the Fourteenth Amendment. The first is the right of citizens to
make certain personal choices, such as those discussed by the Court in Roe
v. Wade, 410 U.S. 113 (1973), and its progeny. The second protects
"informational privacy," and it consists of a citizen's right to control
the release of personal information. Whalen v. Roe, 429 U.S. 589, 599-600
(1977). The public disclosure of private medical records, and the personal
and confidential information contained therein, implicates this
informational privacy right.
|
| [119] |
Of course, the right to informational privacy is not absolute, and a
state does not necessarily violate that right by requiring disclosure of
private medical records. Id. at 602. To determine whether the Disclosure
Provision infringes the right to informational privacy, we consider three
factors. First, the information must fall within the zone of the
constitutional right to privacy. Walls v. City of Petersburg, 895 F.2d
188, 192 (4th Cir. 1990). Second, if the information is within this zone,
then "the defendant has the burden to prove that a compelling governmental
interest in disclosure outweighs the individual's privacy interest."
Id.
|
| [120] |
Finally, any safeguards provided by the State against improper
disclosure will serve to dilute the individual's privacy interest.
Overall, the State's need for private information must be balanced against
the interest of the person whose privacy is at stake. Id. at 192-94. As
the district court properly determined, South Carolina has failed to
demonstrate a sufficient need for access to patients' private identifying
information, rendering its Disclosure Provision invalid. See Greenville
Women's Clinic v. Bryant, Memorandum of Decision, CA No. 6:96-1898-20
(D.S.C. Aug. 31, 2001) (the "Memorandum of Decision").
|
| [121] |
A.
|
| [122] |
The constitutional right to privacy in pregnancy-related medical
information is firmly established. Indeed, the Supreme Court has
emphasized that the decision of a woman to exercise her constitutional
right to choose "is an intensely private one that must be protected in a
way that assures anonymity." Thornburgh v. Am. Coll. of Obstetricians and
Gynecologists, 476 U.S. 747, 766 (1986), overruled in part on other
grounds, Planned Parenthood v. Casey, 505 U.S. 833 (1992); see Hodgson v.
Minnesota, 497 U.S. 417, 463 (1990) ("Few decisions are more personal and
intimate, more properly private, or more basic to individual dignity and
autonomy, than a woman's decision . . . whether to end her pregnancy.")
(quoting Thornburgh, 476 U.S. at 772); see also Skinner v. Ry. Labor
Executives' Ass'n, 489 U.S. 602, 617 (1989) (subjecting drug testing
program to scrutiny under the Fourth Amendment because it threatened to
reveal private information such as pregnancy). Given the Court's
recognition of the private nature of reproductive decisions, the women
seeking services at abortion clinics in South Carolina unquestionably
possess a constitutionally protected privacy interest in the information
sought by the State under the Disclosure Provision.
|
| [123] |
B.
|
| [124] |
In assessing the validity of the Disclosure Provision, we must also
consider whether South Carolina has established "a compelling governmental
interest in disclosure [that] outweighs the individual's privacy
interest." Walls, 895 F.2d at 192; see also Carey v. Population Serv.
Int'l, 431 U.S. 678, 686 (1977). In this regard, the pivotal question is
whether the State can sufficiently justify its request for disclosure of
constitutionally protected information.
|
| [125] |
The Supreme Court has recognized that a state has an interest in
protecting maternal health, and that it may properly collect otherwise
private medical information related to this purpose. See Planned
Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 80 (1976). However, as
Walls informs us: the "regulation 'may be justified only by compelling
state interests, and must be narrowly drawn to express only those
interests.'" Walls, 898 F.2d at 192 (quoting Carey, 431 U.S. at
686).
|
| [126] |
South Carolina has failed to demonstrate that it has a compelling need
to copy any patient identifying information. The only justification
offered by the State is that such information is needed in order to
investigate complaints against abortion clinics. However, the State has
failed to demonstrate a need to contact patients in such situations. In
fact, complaints involving compliance with issues such as structural
building requirements and staff qualifications could be fully investigated
by the State without contacting the female patients. And on issues
involving patient care, the affected patients would most likely consent to
the disclosure of their identity.
|
| [127] |
In limited situations, the State might have a valid need to obtain a
patient's identity in order to investigate anonymous complaints or to seek
corroborating evidence. However, South Carolina's interest in obtaining
patients' identifying information in those limited situations does not
support the disclosure requirement in the Regulation, which gives the
State access to information identifying every patient of every abortion
clinic in the State. Such a disclosure requirement is vastly overbroad: in
the apparent expectation that, someday, some of the information might be
useful, it tramples the privacy interest of every woman who seeks an
abortion at a South Carolina clinic.
|
| [128] |
In short, South Carolina has failed to demonstrate a compelling need
for access to information identifying every patient of the abortion
clinics in the State. As the district court properly recognized, the goals
of the Disclosure Provision would be adequately served if the State is
provided with access to redacted records. Memorandum of Decision, at 8-9.
And in those limited instances where redacted records might be
insufficient, the State has failed to narrowly tailor the Disclosure
Provision to serve its interest in disclosure.
|
| [129] |
C.
|
| [130] |
In assessing whether the Disclosure Provision contravenes the right to
informational privacy, we must also consider the probability of the
unauthorized disclosure of the information collected by the State. Walls,
895 F.2d at 194; see also Watson v. Lowcountry Red Cross, 974 F.2d 482,
487-88 (4th Cir. 1992). Any safeguards designed by the State to prevent
such improper disclosure serve to weaken a woman's privacy interest and
reduce the need to prohibit South Carolina from collecting the information
in the first place. Walls, 895 F.2d at 194.
|
| [131] |
In this case, the State has failed to show that it will protect the
private medical information of female patients. To begin with, the
statutes relied on by South Carolina do not erect an absolute bar to
public disclosure of such information. See S.C. Code Ann. § 44-7-310 (West
2002); *fn8 S.C. Code Ann. § 44-7-315 (West 2002). *fn9 To the contrary, those statutes contain gaping holes
in the protections they afford against public disclosure. For example, §
44-7310 authorizes the public disclosure of identifying information during
licensure proceedings. And § 44-7-315 requires, upon written request, the
public disclosure of information obtained through
inspection.
|
| [132] |
While § 44-7-315 serves to prohibit South Carolina from "disclos[ ing]
the identity of individuals present in a facility," it fails to explain
what "present in a facility" is intended to mean. Under one
interpretation, it might only protect the identity of persons present in
the facility at the time records are released. Under another plausible
interpretation, it could cover only those persons typically present in the
facility -- namely the permanent staff. And among other possible
interpretations, it could mean that the identity of every person ever
present in the facility may not be disclosed, which would include
investigators and other State officials. In short, this ambiguous
statutory language does not sufficiently ensure the confidentiality of the
female patients of South Carolina abortion clinics.
|
| [133] |
Second, despite the State's assurances of confidentiality, private
medical information has been leaked to the public. Although George Moore,
the Director of Outpatient and Home Care in the Department of Health and
Environmental Control ("DHEC"), testified that "strict confidentiality is
maintained as it always is, records are secured in the office, and
individual records are not released under Freedom of Information Act
requests," South Carolina has failed to follow this directive. In point of
fact, the evidence shows that abortion protesters distributed a flyer
containing a photocopy of a medical record obtained from DHEC concerning a
fifteen-year-old girl's pregnancy termination. Furthermore, physicians
testified that similar types of confidential information collected by the
State have been made available to the public.
|
| [134] |
D.
|
| [135] |
It is of significance, in assessing the validity of the Disclosure
Provision, that the recordkeeping requirements established by South
Carolina differ markedly from the types of data collection systems other
courts have approved. For example, in Whalen v. Roe, 429 U.S. 589 (1977),
the Supreme Court concluded that New York was constitutionally permitted
to obtain and record, in a centralized computer file, the names and
addresses of all persons who obtained, pursuant to a doctor's
prescription, certain controlled substances for which there were both
lawful and unlawful markets. Id. at 591-94. In that situation, New York
provided elaborate security against the improper disclosure of private
medical information, including storing the records in a receiving room
surrounded by an alarmed and locked wire fence, and requiring destruction
of the records after five years. Id. at 593-94. Further, the public
disclosure of patients' identities was expressly prohibited by both a
statute and an administrative regulation. Id. at 59495.
|
| [136] |
The situation in this case differs markedly from Whalen in at least
three respects. First, as discussed above, see supra Part I.C., South
Carolina's Disclosure Provision does not sufficiently ensure the
confidentiality of private medical information. Second, the medical
records of abortion patients differ in substance from the records
collected in Whalen. In Whalen, the information compiled on drug use
provided potentially incriminating evidence about the patients themselves,
not just about the medical doctors who wrote the prescriptions. Id. at
592. Here, the private medical information sought by South Carolina is not
for the purpose of investigating the female patients of abortion clinics.
Rather, the State claims that such information will facilitate its
investigations of the clinics providing abortion services. *fn10 Finally, the plaintiffs in Whalen claimed to fear
the disclosure of their medical records because of the stigma attached to
the use of controlled substances. Id. at 595 n.16. In this case, women
seeking abortions in South Carolina have a great deal more to fear than
stigma. The protests designed to harass and intimidate women entering
abortion clinics, and the violence inflicted on abortion providers,
provide women with ample reason to fear for their physical safety. See
Thornburgh, 476 U.S. at 767 n.12.
|
| [137] |
For these reasons, the identifying information contained in medical
records of women seeking services at abortion clinics in South Carolina
must be kept confidential. The majority, in my view, is entirely unable to
justify South Carolina's broad access to unredacted records, and it has
not shown that the purported safeguards ameliorate privacy concerns. In
sum, the Disclosure Provision violates the constitutionally protected
right of informational privacy, and the majority is incorrect to conclude
otherwise.
|
| [138] |
II.
|
| [139] |
I also disagree with the majority on the constitutionality of § 307 of
the Regulation (the "Consultation Provision"). *fn11 The Plaintiffs maintain that the Consultation
Provision unconstitutionally compels South Carolina abortion clinics to
form professional affiliations with members of the clergy and entangles
the State in religious matters. *fn12 The majority, on the other hand, views the
Plaintiffs' concerns as "grounded on a substantial misreading of § 307,
imputing obligations and relationships that are not prescribed by the
regulation." Ante at 10.
|
| [140] |
Specifically, the majority believes that "[t]hese arrangements might
amount to no more than a list of clergy and other specialists or a readily
accessible telephone book to consult as required by the needs of a
particular patient," and that no arrangement for religious counseling need
be made until a patient requests the referral. Ante at
10-11.
|
| [141] |
In concluding that the Consultation Provision complies with the
Establishment Clause, the majority interprets the clergy referral
requirement in a plainly implausible way. Under a reasonable
interpretation of the Consultation Provision, abortion providers in South
Carolina must establish professional affiliations with members of the
clergy in order to ensure that religious consultation and referral
services will be available to their female patients. And to enforce this
Provision, the State inevitably must establish and enforce religious
criteria. Because the Establishment Clause *fn13 precludes South Carolina from becoming entangled
with religion in this way, the Consultation Provision is
unconstitutional.
|
| [142] |
A.
|
| [143] |
In South Carolina, duly promulgated state regulations, like statutes,
are to "receive practical, reasonable and fair interpretation consonant
with the purpose, design and policy of lawmakers." Whiteside v. Cherokee
County Sch. Dist. No. 1, 428 S.E.2d 886, 888 (S.C. 1993). Viewed in this
way, the express terms of the Consultation Provision cannot support the
majority's strained interpretation; the Provision unequivocally requires
clinics to establish prearrangements for consultation services with
members of the clergy. Although the services must be "available as
needed," the arrangements plainly must be made before a clinic can obtain
a license. Moreover, the "arrangement" requirement of the Consultation
Provision indicates that abortion providers must do more than merely make
a telephone book available to their female patients. Indeed, for a female
patient to have access to specialists in the fields specified in the
Consultation Provision, such as anesthesiology or surgery, a telephone
book would not be particularly helpful. And the majority gives no reason
why the mandated "arrangements" with members of the clergy should be
treated differently.
|
| [144] |
Further, the majority's interpretation of the Consultation Provision
inexplicably ignores the explicit intent of the South Carolina official
who wrote the Regulation. According to Mr. Moore, the Director of
Outpatient and Home Care in the Division of Licensing of DHEC, and the
state official who drafted the Regulation, clinics must make
prearrangements for consultation. *fn14 In fact, Mr. Moore testified that prior arrangements
are required with "maybe two or three different denominations just to be
on call." Although "[i]t probably wouldn't be a Catholic priest," Mr.
Moore opined that they "would just have to have Protestant and whatever
else." Given the plain terms of the Consultation Provision and the
unequivocal statements of its drafter, abortion providers in South
Carolina must, in order to comply with the Provision, do more than merely
provide their patients with a telephone book. Ante at 10.
|
| [145] |
B.
|
| [146] |
It is with this interpretation of the clergy referral requirement in
mind that I turn to an assessment of the constitutionality of the
Consultation Provision. In order to determine whether a regulation
violates the Establishment Clause, we must apply the three-prong test that
the Supreme Court articulated in Lemon v. Kurtzman, 403 U.S. 602 (1971).
First, the regulation must have a secular purpose. Second, the primary
effect of the regulation must neither advance nor inhibit religion. And
third, the regulation must not foster an excessive government entanglement
with religion. Id. at 612-13. As explained below, the Consultation
Provision clearly violates Lemon's third prong, and it probably
contravenes the second prong as well.
|
| [147] |
1.
|
| [148] |
The first prong of the Lemon test presents a fairly low hurdle for the
State. Brown v. Gilmore, 258 F.3d 265, 276 (4th Cir.), cert. denied, 122
S. Ct. 465 (2001). Here, the Consultation Provision appears to have a
secular purpose. The State promulgated it for the ostensible purpose of
protecting maternal health and to ensure that women seeking abortion
services have access to experts in a range of specialty fields. The first
prong of Lemon contemplates an inquiry into the subjective intentions of
the government. See Wallace v. Jaffree, 472 U.S. 38, 56 (1985) ("[I]t is
appropriate to ask 'whether government's actual purpose is to endorse or
disapprove of religion.'") (quoting Lynch v. Donnelly, 465 U.S. 668, 690
(O'Connor, J., concurring)). Without more evidence of a religious purpose,
the Consultation Provision survives the first prong of the Lemon
test.
|
| [149] |
2.
|
| [150] |
By contrast, the Consultation Provision in all likelihood fails
Lemon's second prong. This prong's "primary effect" test requires an
objective assessment, rather than a subjective one, and it measures
whether the principal effect of government action "is to suggest
government preference for a particular religious view or for religion in
general." Barghout v. Bureau of Kosher Meat & Food Control, 66 F.3d
1337, 1345 (4th Cir. 1995). Here, the Consultation Provision compels
physicians providing abortion services to establish affiliations with
religious institutions.
|
| [151] |
This mandatory affiliation seems to convey the message that the State
endorses the beliefs of the religious counselors. Further, the clergy
referral requirement appears to promote the religious mission of those
institutions given referral arrangements. *fn15 Under our Constitution, however, the government is
not permitted to sponsor the indoctrination of religious beliefs in this
manner.
|
| [152] |
More disturbingly, South Carolina has indicated it will play favorites
among religions in enforcing the Consultation Provision. *fn16 The interpretation given to this Provision by DHEC's
Division of Licensing unquestionably violates the hallmark of the
Establishment Clause, which is that the government must be neutral with
respect to different religious beliefs. According to Mr. Moore, referral
arrangements with members of the clergy must include at least one
Protestant minister, and they need not include a Catholic priest. This
governmental preference for certain religious beliefs violates what Judge
Luttig has characterized as "the most fundamental tenet of the
Establishment Clause [which] is that the imprimatur of the state shall not
directly or indirectly be placed upon one religious faith over another."
Id. at 1346 (Luttig, J., concurring). Given these defects, the
Consultation Provision almost certainly contravenes the second prong of
the Lemon test.
|
| [153] |
3.
|
| [154] |
In any event, the Consultation Provision surely fails the third prong
of the Lemon test, because it excessively entangles the State with
religion. Under Lemon's final prong, the Court requires that we analyze
"the character and purposes of the institutions that are benefited, the
nature of the aid that the State provides, and the resulting relationship
between the government and religious authority." Lemon, 403 U.S. at 615.
In this case, the benefited institutions are quintessentially religious.
Unlike the religious groups that have elsewhere been allowed to
participate in government programs, the institutions that receive the
benefit of referral arrangements under the Consultation Provision are
pervasively sectarian. By virtue of the Consultation Provision, churches
in South Carolina have been given additional opportunities to proselytize;
female patients of abortion providers will now be referred to a preacher
at the direction of the State. Such a referral requirement is
unprecedented, and it should be recognized as
unconstitutional.
|
| [155] |
Further, the State's enforcement of the Consultation Provision will
inevitably entangle the State in religious counseling. DHEC inspectors and
bureaucrats must determine not only whether the mandated clergy referral
arrangements have been made, but also whether the arrangements with
members of the clergy satisfy criteria that are necessarily religious. To
enforce the Consultation Provision, the State must inquire into who
qualifies as an appropriate member of the "clergy," and it must decide
whether the referral arrangements are sufficient to meet the religious
needs and preferences of female patients. In requiring DHEC inspectors to
determine whether abortion providers have complied with these religious
requirements, the Consultation Provision excessively entangles the State
in religious indoctrination. As such, it violates the Establishment
Clause, and it should be invalidated.
|
| [156] |
III.
|
| [157] |
While I agree with the majority that most of the challenged aspects of
the Regulation are sufficiently clear to withstand a constitutional
vagueness analysis, *fn17 I see two of those provisions as unconstitutionally
vague. First, the inspectors for South Carolina have unbridled discretion
to decide whether an abortion provider in that State has somehow deviated
from an amorphous "best practices" requirement, which is found both in
Chapter 10 and § 103 of the Regulation (the "Best Practices Provisions").
See 24 S.C. Code Ann. Regs. 61-12, Chapter 10 (Cum. Supp. 2001); 24 S.C.
Code Ann. Regs. 61-12, § 103(C) (Cum. Supp. 2001). *fn18 Second, under a particularly incomprehensible
section, abortion clinics in South Carolina must arrange for local
hospital admitting privileges for either some or all of their staffs.
However, exactly which staff members are required to possess such
privileges is inherently ambiguous because of an unfortunately placed
"and/or" connector found in § 305 of the Regulation (the "And/Or
Provision"). See 24 S.C. Code Ann. Regs. 61-12, § 305(A) (Cum. Supp.
2001). *fn19 The majority unjustifiably and incorrectly ignores
the fundamental vagueness of these Provisions.
|
| [158] |
The Due Process guarantee of the Fourteenth Amendment prohibits state
statutes and regulations that are "so vague that men of common
intelligence must necessarily guess at [their] meaning and differ as to
[their] application." Smith v. Goguen, 415 U.S. 566, 572 n.8 (1974)
(quoting Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926)). Further,
such statutes and regulations may not be so vague that they invite
arbitrary and discriminatory enforcement. Kolendar v. Lawson, 461 U.S.
352, 357 (1983); see also Papachristou v. City of Jacksonville, 405 U.S.
156, 162 (1972) (invalidating an ordinance on vagueness grounds partially
because it encouraged "arbitrary and erratic arrests and convictions");
see generally City of Chicago v. Morales, 527 U.S. 41, 56 (1999)
(plurality); Grayned v. City of Rockford, 408 U.S. 104, 108-09
(1972).
|
| [159] |
A.
|
| [160] |
In order to be consistent with the requirements of due process,
statutes and regulations with criminal sanctions must achieve a higher
level of clarity than those which provide for civil penalties only.
Village of Hoffman Estates v. Flip-side, Hoffman Estates, Inc., 455 U.S.
489, 498-99 (1982) ("The Court has also expressed greater tolerance of
enactments with civil rather than criminal penalties because the
consequences of imprecision are qualitatively less severe."). While the
majority acknowledges this principle, it inexplicably and incorrectly
assumes that violations of the Regulation carry civil penalties only. Ante
at 4, 16. On the contrary, a violation of the general licensing article of
the South Carolina Code, which applies specifically to health care
facilities providing abortion services to women in South Carolina,
constitutes a misdemeanor criminal offense. S.C. Code Ann. § 44-7-340
(West 2002). In order to be constitutional, the Regulation's licensing
scheme must therefore be analyzed under the standard of clarity applicable
to criminal offenses.
|
| [161] |
Further, even if criminal penalties were not implicated, the
Regulation threatens the exercise of constitutionally protected rights.
For this reason alone, it must achieve a heightened level of precision.
Colautti v. Franklin, 439 U.S. 379, 391, 394 (1979) (noting that
regulations that threaten abortion rights are held to a higher level of
clarity). Indeed, the constitutionally protected right to seek an abortion
has been treated with such hostility that abortion providers are uniquely
susceptible to being targeted by arbitrary and discriminatory enforcement.
Women's Med. Ctr. of Northwest Houston v. Bell, 248 F.3d 411, 422 (5th
Cir. 2001) ("Especially in the context of abortion, a constitutionally
protected right that has been a traditional target of hostility,
standardless laws and regulations . . . open the door to potentially
arbitrary and discriminatory enforcement."). Given the fact that the South
Carolina licensing scheme threatens criminal penalties, and in light of
the additional fact that constitutionally protected rights are at stake,
the provisions of the Regulation must be especially clear as to what is
required and what is prohibited.
|
| [162] |
B.
|
| [163] |
1.
|
| [164] |
The majority candidly concedes that the "best practices" requirement
makes Chapter 10 the "most unclear provision in Regulation 6112." Ante at
16. Under the Best Practices Provisions, a South Carolina abortion
provider must comply with "best practices as interpreted by the
Department." 24 S.C. Code Ann. Regs. 61-12, Chapter 10 (Cum. Supp. 2001);
24 S.C. Code Ann. Regs. 61-12, § 103(C) (Cum. Supp. 2001). Despite
recognizing that the Best Practices Provisions lack clarity, the majority
fails to subject them to a vagueness analysis. The proper answers to two
questions dispose of the issue: Would a person of reasonable intelligence
understand what is required by the Best Practices Provisions? The answer
is "No." Is the language of these Provisions so standardless that it
enables arbitrary and discriminatory enforcement? The answer is
"Yes."
|
| [165] |
The majority seems to rely, inappropriately, on a reading of the
Regulation "in its entirety" in deciding to uphold the Best Practices
Provisions. Ante at 15. The Supreme Court, however, has recently
demonstrated that overbreadth and vagueness analyses are to be conducted
on a provision-by-provision basis. See Ashcroft v. Free Speech Coalition,
534 U.S. ___, 122 S. Ct. 1389, 1405-06 (2002) (analyzing different
provisions of the Child Pornography Prevention Act separately and
concluding that only certain subsections violated the First Amendment).
Standing alone, the Best Practices Provisions contained in Chapter 10 and
§ 103 of the Regulation offer no guidance on the scope of their coverage,
and they are therefore unconstitutionally vague.
|
| [166] |
2.
|
| [167] |
The And/Or Provision found in § 305(A) of the Regulation, as the
majority acknowledges, is also "inherently ambiguous." Ante at 12. This
Provision requires that "[a]ll staff and/or consulting physicians shall
have admitting privileges at one or more local hospitals." 24 S.C. Code
Ann. Regs. 61-12, § 305(A) (Cum. Supp. 2001) (emphasis added). Because of
the "and/or" connector, abortion providers in South Carolina, who are
subject to criminal sanctions if they violate the Regulation, lack
sufficient notice as to what is required of them. Cf. United States v.
Bush, 70 F.3d 557, 562 (10th Cir. 1995) (discussing the inherent vagueness
of an indictment with an "and/or" connector). On the one hand, the And/Or
Provision might require all staff physicians and all consulting physicians
to have admitting privileges at local hospitals. On the other hand, it
might require either all staff physicians or all consulting physicians to
have admitting privileges. To add to the confusion, the word "staff" in
this Provision could be functioning either as a noun or as an adjective.
If it is a noun, it is possible to read the And/Or Provision to require
that the receptionist, at every abortion clinic in the State, possess
admitting privileges.
|
| [168] |
3.
|
| [169] |
In sum, neither the Best Practices Provisions nor the And/Or Provision
set forth a sufficiently ascertainable standard of conduct to provide the
abortion providers in South Carolina with proper notice of their scope.
Therefore, we should hold each of these Provisions to be
unconstitutionally vague.
|
| [170] |
IV.
|
| [171] |
Finally, the majority errs in ruling that the Regulation's delegation
of decisionmaking authority over abortion licensing complies with due
process requirements. Several parts of the Regulation give private parties
authority over the licensing of abortion providers in South Carolina.
These provisions include: § 205(C)(2), *fn20 §305(A), *fn21 and § 309(B) *fn22 (collectively, the "Hospital Privilege Provisions"),
as well as the Consultation Provision. Because these Provisions give
private parties unguided power to refuse to affiliate with abortion
clinics, they should be recognized as unconstitutional delegations of
government licensing authority.
|
| [172] |
Because the licensing scheme spelled out in the Regulation threatens
to deprive abortion providers in South Carolina of a protected property
interest and to burden the liberty interest of women seeking abortions, it
must comport with due process. The Due Process Clause requires licensing
decisions to be based upon established standards, rather than upon the
whim or caprice of the licensor. Yick Wo v. Hopkins, 118 U.S. 356, 370
(1886); see also GE Co. v. N.Y. State Dep't of Labor, 936 F.2d 1448,
1454-55 (2nd Cir. 1991); Hornsby v. Allen, 326 F.2d 605, 608 (5th Cir.
1964). And if a state decides to delegate part of its licensing authority
to a third party, that authority must be exercised in a manner that is
consistent with due process requirements. Hallmark Clinic v. N.C. Dep't of
Human Res., 380 F. Supp. 1153, 1158-59 (E.D.N.C. 1974) (three-judge
panel), aff'd in part on other grounds, 519 F.2d 1315 (4th Cir.
1975).
|
| [173] |
The Plaintiffs maintain that several provisions of the Regulation
constitute an improper delegation, without sufficient standards, of the
State's licensing authority. Specifically, the Plaintiffs challenge the
mandate of the Hospital Privilege Provisions that physicians (and/or
others) possess admitting privileges at local hospitals, and they
challenge the Consultation Provision's referral arrangement requirement.
The Plaintiffs maintain that these provisions grant hospitals and medical
specialists, as well as members of the clergy, an effective "veto power"
over the licensing of abortion providers. The State, on the other hand,
does not contend that the Regulation provides any standards or guidelines
for when, or under what circumstances, third parties may refuse to
affiliate with abortion providers. It relies, instead, on the irrelevant
fact that such providers have not yet had difficulty obtaining
licenses.
|
| [174] |
In rejecting the Plaintiffs' delegation challenges, it is striking
that the majority fails to address two contrary decisions directly on
point. Indeed, a three-judge district court in this Circuit concluded that
a state may not constitutionally delegate to hospitals the unbridled
control over abortion licensing by conditioning a license on hospital
admitting privileges. In Hallmark Clinic, Judge J. Braxton Craven, Jr.,
then a distinguished member of this Court from North Carolina, addressed
the very question we face today, and the majority takes issue with his
reasoning without mentioning his considered opinion. *fn23 In that case, Hallmark Clinic challenged a North
Carolina licensing scheme that required abortion providers to have
transfer agreements with local hospitals. 380 F. Supp. at 1156. Because
the challenged North Carolina regulation did not limit the discretion of
hospitals to decide whether to grant such privileges, the court held that
the regulation constituted an unconstitutional delegation. As Judge Craven
concluded, "the state cannot confer upon a private institution the
exercise of arbitrary and capricious power." Id. at 1159. If a state
requires that physicians have admitting privileges in hospitals in order
to obtain licenses to perform abortions, "it must establish and enforce
standards for admission to hospital staff privileges." Id. Here, South
Carolina, like North Carolina in the 1970s, has "given hospitals the
arbitrary power to veto the performance of abortions for any reason or no
reason at all. The state cannot grant hospitals power it does not have
itself." Id. at 1158-59.
|
| [175] |
In Birth Control Centers, Inc. v. Reizen, 508 F. Supp. 1366 (E.D.
Mich. 1981), aff'd in part and vacated in part on other grounds, 743 F.2d
352 (6th Cir. 1984), a district court in Michigan invalidated a regulation
similar to the North Carolina licensing scheme at issue in Hallmark
Clinic. There, Michigan had promulgated a regulation requiring abortion
providers to obtain transfer agreements with local hospitals before they
could obtain a license. Id. at 1369. Relying on the Hallmark Clinic
decision, the court struck down the Michigan regulation as an
impermissible delegation of state power. See id. at 1374 (holding that
hospital privilege requirements "violate due process concepts because they
delegate a licensing function to private entities without standards to
guide their discretion"); see also GE Co. v. N.Y. State Dep't of Labor,
936 F.2d at 1455 ("[A] legislative body may not constitutionally delegate
to private parties the power to determine the nature of rights to property
in which other individuals have a property interest, without supplying
standards to guide the private parties' discretion.").
|
| [176] |
Because the Hospital Privilege Provisions of the Regulation delegate
the unfettered power to control the licensing of abortion providers, they
violate the Due Process Clause. See Danforth, 428 U.S. at 74 ("[T]he 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, regardless of the
reason for withholding consent."). In addition to other constitutional
infirmities, the Hospital Privilege Provisions and the Consultation
Provision (for the same reasons that apply to the Hospital Privilege
Provisions) constitute standardless delegations of state power. As such,
they violate the Due Process Clause and should be
invalidated.
|
| [177] |
V.
|
| [178] |
In sum, the majority has misapprehended the underlying facts and
misapplied the applicable law in upholding the Regulation in its entirety.
Under an appropriate construction of the Regulation and an application of
controlling legal principles, several of its provisions are
unconstitutional. In particular, the Disclosure Provision violates the
right to informational privacy; the Consultation Provision contravenes the
Establishment Clause (as well as the Due Process Clause in improperly
delegating state licensing authority); the And/Or Provision and the Best
Practices Provisions are unconstitutionally vague; and the Hospital
Privilege Provisions violate due process by unconstitutionally delegating
state licensing authority.
|
| [179] |
Because the majority refuses to recognize these constitutional
infirmities, I respectfully dissent.
|
| |
|
| |
Opinion Footnotes |
| |
|
| [180] |
*fn1 Although South Carolina claims that the Regulation
treats abortion clinics similarly to other entities regulated by the
State, several facts belie this assertion. First, as Judge Hamilton aptly
pointed out the first time this case was appealed, "South Carolina does
not require licensing of physicians' offices outside of the abortion
context." Greenville Women's Clinic v. Bryant, 222 F.3d 157, 178 (4th Cir.
2000) (Hamilton, J., dissenting). Second, the South Carolina Department of
Health and Environmental Control ("DHEC"), in writing the Regulation,
specifically tailored it to abortion clinics. Id. at 184-85. Finally, the
Regulation contains some provisions, such as the clergy referral
requirement discussed below, see infra Part II, that are found nowhere
else in the South Carolina Code.
|
| [181] |
*fn2 I express no view on whether this policy is impacted
by our recent decision in Sons of Confederate Veterans, Inc. v.
Commissioner of the Virginia Department of Motor Vehicles, 288 F.3d 610
(4th Cir. 2002).
|
| [182] |
*fn3 Other South Carolina statutes demonstrate a similar
hostility to a woman's constitutional right to seek an abortion. See,
e.g., S.C. Code Ann. § 1-1-1035 (West 2002) (prohibiting Medicaid funds
from being used to fund abortions); S.C. Code Ann. § 44-41-340(A)(2) (West
2002) (requiring that women seeking abortions be provided with a brochure
that includes "materials designed to inform the woman of the probable
anatomical and physiological characteristics of the embryo or fetus at
two-week gestational increments"); S.C. Code Ann. § 44-41-40 (West 2002)
(entitling private hospitals to refuse to perform
abortions).
|
| [183] |
*fn4 The majority also improperly focuses on the fact that
the Plaintiffs have challenged the Regulation on its face. In United
States v. Salerno, 481 U.S. 739 (1987), the Supreme Court articulated a
"no set of circumstances" test that would, if applicable, make a facial
challenge virtually impossible to win. However, the Salerno doctrine is an
embattled one at best, and its continuing viability is the subject of
intense debate. In any event, the Court has indicated that the Salerno
standard does not apply to three of the four legal claims asserted here.
See Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 313-14 (2000)
(analyzing a facial challenge in an Establishment Clause case without
applying Salerno); Stenberg v. Carhart, 530 U.S. 914, 921 (2000) (same for
privacy); Chicago v. Morales, 527 U.S. 41, 55 (1999) (plurality) (same for
vagueness). So long as plaintiffs possess standing to raise a claim,
facial challenges are generally evaluated under the same standard as any
other constitutional challenge, and the majority simply confuses the
issues in suggesting otherwise.
|
| [184] |
*fn5 The Disclosure Provision provides, in pertinent part,
that: Department inspectors shall have access to all . . . records and
reports, and shall have the authority to make photocopies of those
documents required in the course of inspections or investigations. 24 S.C.
Code Ann. Regs. 61-12, § 102(F)(2) (Cum. Supp. 2001).
|
| [185] |
*fn6 Pursuant to § 401(A)(1) of the Regulation, abortion
clinics in South Carolina are required to maintain records with various
identifying information, including: name, address, telephone number,
social security number, date of birth, father's and mother's names when
patient is a minor, husband's name, and name, address and telephone number
of person to be notified in the event of an emergency. 24 S.C. Code Ann.
Regs. 61-12, § 401(A)(1) (Cum. Supp. 2001).
|
| [186] |
*fn7 By definition, the Regulation only applies to clinics
"in which any second trimester or five or more first trimester abortions
per month are performed." 24 S.C. Code Ann. Regs. 61-12, § 101(B) (Cum.
Supp. 2001). However, for ease of reference, I use the terms "clinics" or
"providers," without any further elaboration, to refer to those facilities
subject to the Regulation.
|
| [187] |
*fn8 Section 310, regarding "Certain information not to be
disclosed publicly," states: Information received by the Office of Health
Licensing . . . may not be disclosed publicly in a manner as to identify
individuals or facilities except in a proceeding involving the licensure
or certification of need of the facility or licensing proceedings against
an employee of the facility or as ordered by a court of competent
jurisdiction. S.C. Code Ann. § 44-7-310 (West 2002) (emphasis
added).
|
| [188] |
*fn9 Section 315, titled "Disclosure of information
regarding facility or home," reads, in pertinent part: Information
received by the Division of Health Licensing . . . must be disclosed
publicly upon written request to the department. . . . The department may
not disclose the identity of individuals present in a facility licensed by
the department . . . . S.C. Code Ann. § 44-7-315 (West 2002) (emphasis
added).
|
| [189] |
*fn10 Where this Court has permitted a government entity
to collect and maintain private information, the government interest has
consistently related to the person whose privacy is at stake. See Walls,
895 F.2d at 192-93 (upholding data collection of police department
applicants because of state interest in obtaining personal information of
employees); Hodge v. Jones, 31 F.3d 157, 166 (4th Cir. 1994) (upholding
data collection of reports of child abuse to aid future investigations of
parents). The majority has unjustifiably extended these earlier decisions
by now allow ing South Carolina to collect patient information in order to
investigate clinics. In the only situation where the need to obtain
private information related to a third party, the scope of the privacy
invasion was narrowly tailored to the need for disclosure. In Watson, the
plaintiff, who asserted a claim against a Red Cross donation center, was
allowed to obtain discovery from an anonymous blood donor. 974 F.2d at
484. Thus, the interest in obtaining the information related to the Red
Cross, while it was the donor whose privacy was compromised. However, in
that case, only one donor's identity was at stake, and it was revealed
only to the court. The trial court allowed the plaintiff to submit
questions to counsel for the anonymous donor, but the identities of the
donor and the donor's counsel were known only to the court. Id. at 484,
487. In contrast, the South Carolina Regulation provides the State with
access to every patient record without any judicial supervision on how the
information is used.
|
| [190] |
*fn11 The Consultation Provision of the Regulation, found
in § 307, requires that: Arrangements shall be made 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. 24 S.C. Code Ann. Regs. 61-12, § 307
(Cum. Supp. 2001) (emphasis added).
|
| [191] |
*fn12 Plaintiffs also contend that the Consultation
Provision improperly gives religious leaders veto authority over the
issuance of abortion licenses. Because I would find that the Provision
violates the Establishment Clause in excessively entangling the State with
religious counseling, I would not reach the issue of whether the
Consultation Provision might also give religious leaders too much
authority over government functions. See generally Larkin v. Grendel's
Den, Inc., 459 U.S. 116 (1982). I do, however, address a similar
contention in dealing with the Regulation's improper delegation of state
authority. See infra Part IV.
|
| [192] |
*fn13 The Establishment Clause provides that "Congress
shall make no law respecting an establishment of religion." U.S. Const.
amend. 1. It has been incorporated against the states through the
Fourteenth Amendment. Zelman v. Simmons-Harris, 534 U.S. ___, 122 S. Ct.
2460, 2465 (2002); Everson v. Bd. of Educ. of Ewing Township, 330 U.S. 1,
15-16 (1947).
|
| [193] |
*fn14 In general, an agency's interpretation of its own
regulation deserves considerable deference. See Brown v. S.C. Dep't of
Health & Envtl. Control, 560 S.E.2d 410, 415 (S.C. 2002). Although a
position taken in liti gation (which is one way Mr. Moore's view could be
characterized) may be treated differently, a policy statement should be
given deference where it reflects the considered and reasoned judgment of
the agency, rather than a post hoc rationalization of an enforcement
decision. See Monongahela Power Co. v. Reilly, 980 F.2d 272, 279 (4th Cir.
1993). Mr. Moore's testimony therefore is entitled to consideration in
assessing what the Consultation Provision requires. Further, because South
Carolina inspectors have broad discretion to determine what might violate
the Consultation Provision, abortion providers would be well advised to
heed DHEC's warning on how the law will be enforced.
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| [194] |
*fn15 Unlike those situations where courts have permitted
religious groups to provide state-sponsored counseling services, the
message of the clergy in this case is purely religious. Further, the
counseling services here must be provided by pervasively sectarian
organizations. South Carolina is not merely allowing religious groups to
participate on an equal basis in grant programs; it has facilitated
religious indoctrination. In Bowen v. Kendrick, 487 U.S. 589 (1988), the
Supreme Court held that religious groups could receive funds from the
government in order to counsel teenagers regarding adolescent sexual
relations. However, the counseling services were not inherently religious,
the grant program directed that the money should be spent for secular
purposes, and the groups providing counseling services were not
pervasively sectarian. See id. at 604-05 ("The services to be provided
under the AFLA are not religious in character, nor has there been any
suggestion that religious institutions or organizations with religious
ties are uniquely well qualified to carry out those services.") (internal
citation omitted); see also id. at 610-12.
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| [195] |
*fn16 If the Consultation Provision is enforced in a
manner where certain religions are actually favored, as Mr. Moore
suggests, it should be enjoined without applying the Lemon analysis.
Larson v. Valente, 456 U.S. 228, 252 (1982) ("[T]he Lemon v. Kurtzman
'tests' are intended to apply to laws affording a uniform benefit to all
religions, and not to provisions . . . that discriminate among
religions."); see also County of Allegheny v. ACLU Greater Pittsburgh
Chapter, 492 U.S. 573, 604 (1989) ("Whatever else the Establishment Clause
may mean . . . it certainly means at the very least that government may
not demonstrate a preference for one particular sect or
creed.").
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| [196] |
*fn17 In particular, I agree that §§ 102(J), 102(L),
201(B), 204, 205(C)(1), 301, 306-308, 501(A), 602(A), 604, 606, and 807 of
the Regulation are not unconstitutionally vague.
|
| [197] |
*fn18 Chapter 10 of the Regulation provides: "Conditions
arising that have not been addressed in these regulations shall be managed
in accordance with the best practices as interpreted by the Department."
24 S.C. Code Ann. Regs. 61-12, Chapter 10 (Cum. Supp. 2001). Section
103(C) similarly states that "Class III violations are those that are not
classified as Class I or II in these regulations or those that are against
the best practices as interpreted by the Department." 24 S.C. Code Ann.
Regs. 61-12, § 103(C) (Cum. Supp. 2001). The majority concentrates on
Chapter 10 in discussing the "best practices" requirement. Ante at 16.
However, because Chapter 10 and § 103(C) contain the same "best practices"
language, I refer to them collectively as the "Best Practices
Provisions."
|
| [198] |
*fn19 Section 305(A) of the Regulation reads: All staff
and/or consulting physicians shall have admitting privileges at one or
more local hospitals that have appropriate obstetrical/gynecological
services or shall have in place documented arrangements approved by the
Department for the transfer of emergency cases when hospitalization
becomes necessary. 24 S.C. Code Ann. Regs. 61-12, § 305(A) (Cum. Supp.
2001) (emphasis added).
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| [199] |
*fn20 Section 205(C)(2) of the Regulation provides: The
facility shall enter into a signed written agreement with at least one
physician board-certified in obstetrics and gynecology (if not one on
staff) who has admitting privileges at one or more local hospitals with
OB/GYN services to ensure his/her availability to the staff and patients
during all operating hours. 24 S.C. Code Ann. Regs. 61-12, § 205(C)(2)
(Cum. Supp. 2001).
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| [200] |
*fn21 I have previously designated § 305(A) of the
Regulation as the "And/Or Provision." See supra Part III. It is also one
of the Hospital Privilege Provisions implicated in the improper delegation
challenge to the Regulation's hospital admitting privilege
requirements.
|
| [201] |
*fn22 Section 309(B) of the Regulation provides:
"Physicians shall have admitting privileges at one or more local hospitals
that have appropriate obstetrical/gynecological services." 24 S.C. Code
Ann. Regs. 61-12, § 309(B) (Cum. Supp. 2001).
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| [202] |
*fn23 The Hallmark Clinic panel was convened pursuant to a
statute, since repealed, that required a special three-judge court to hear
and decide claims seeking to enjoin the enforcement of a state statute on
constitutional grounds. See 28 U.S.C. § 2281 (repealed 1976). While
Hallmark Clinic may not constitute binding authority in our Circuit, Judge
Craven's well-reasoned opinion, in the absence of other controlling
precedent, should be considered persuasive authority and accorded great
weight.
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