Appendix — Greenville Women's Clinic v. Commissioner, South Carolina Department of Health and Environmental Control
Supreme Court brief2003
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In The
Supreme Court of the Gnited States
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GREENVILLE WOMEN’S CLINIC;
WILLIAM LYNN, M.D., ON BEHALF OF THEMSELVES
AND THEIR PATIENTS SEEKING ABORTIONS,
Petitioners,
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,
Respondents.
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On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Fourth Circuit
¢
APPENDIX TO
PETITION FOR WRIT OF CERTIORARI
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RANDALL HILLER BONNIE SCOTT JONES
850 Wade Hampton (Counsel of Record)
Boulevard PRISCILLA J. SMITH
Greenville, South Carolina SIMON HELLER
29609 CENTER FOR REPRODUCTIVE
(864) 232-0026 RIGHTS
120 Wall Street
New York, New York 10005
(917) 637-3600
A-i
TABLE OF CONTENTS
Greenville Women’s Clinic v. Commissioner,
S.C. Dep’t of Health and Envtl. Control,
2002 WL 31928629 (4th Cir. Sep. 19, 2002)......... A-1
Greenville Women’s Clinic v. Commissioner,
S.C. Dep’t of Health and Envtl. Control,
No. 6:96-1898-20, slip op.
CRS). PM Bh, BOOED ovsttnsecsvsicniernnssensonsorensonvens A-51
Greenville Women’s Clinic v. Commissioner,
S.C. Dep’t of Health and Envil. Control,
No. 01-2090, Order (4th Cir. Nov. 8, 2002)......... A-61
Greenville Women’s Clinic v. Commissioner,
S.C. Dep’t of Health and Envtl. Control,
No. 01-2090, Order (4th Cir. Nov 15, 2002)........ A-64
S.C. Ann. Regs. 61-12 (West Supp. 1998) ....ccsssssssessseee A-67
Excerpts from Deposition
of Richard Goodrich,
SN Oe BONE iinscnsvicncvevacienrbnnisantanveconintees A-126
Excerpt from Deposition
of Robert A. Lawyer,
I Bi Fae cisitiniecinorevsvnnsvsennssnnsinnenenintovens A-127
Excerpt from Deposition
of Richard O. Manning,
February 4, 1998 ............ccscssessee siiaenaeechaae A-128
Excerpt from Trial Testimony
of William Lynn,
RE A Be va Aaecingectinensnventiteniaitccnipntinitesstionn A-129
A-ii
Excerpts from Trial Testimony
of Thomas W. Campbell,
Daly 6, a ii ih rrvincinin A-132
Excerpts from Trial Testimony
of Lorrainne D. Maguire,
Py 35, Te cenisennscemiastickimnicianammnaias A-133
Excerpts from Trial Testimony
of David A. Grimes,
Pallet BG, SOU ic caisaiiiitesteenkcaseaeheeatecniaeisiaaien A-139
Excerpts from Trial Testimony
of George Moore,
Dake 6, CIB ecinistensicrctacnainmabaaliasion A-141
Excerpt from Trial Testimony
of Charles J. Ward,
Taliy TT, Fw vi ccsvvsiscicesetisioitianaimaatuabiadoadanaiaad A-146
PATE” TENE BF a ccssnnsiniancnsccecinicnenmabisanlanciiauinigl A-147
Paani” TRE BS acs v.iscscissesiesanenenoeiaraaneaniageiaan A-151
Excerpt from Plaintiffs’ Exhibit 16.00.00... cceeeesseees A-153
Excerpt from Defendants’ Exhibit 18a...............:cscse0e A-156
Excerpt from Declaration of Terry Buffkin, M_D.......... A-160
Excerpts from Declaration of William Lynn, M_.D........ A-161
Excerpt from Declaration of Gary Boyle, M.D. ............ A-162
eet iwrentsne tte COOLED EBM Dist tht nts BM Ss Wi
2002 WL 31928629
--- F.3d ---
(Cite as: 2002 WL 31928629 (4th Cir. (S.C.)))
Only the Westlaw citation is currently available.
United States Court of Appeals,
Fourth Circuit.
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,
vs
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.
GREENVILLE WOMEN’S CLINIC; William Lynn,
MD, on behalf of themselves and their
patients seeking abortions, Plaintiffs-Appellees,
and
Charleston Women’s Medical Clinic, Incorporated,
Plaintiff,
V.
Commissioner, South Carolina Department of Health
and Environmental Control;
A-2
Governor of South Carolina; Charles Molony
Condon, in his official capacity as
Attorney General of the State of South Carolina,
Defendants-Appellants.
Nos. 01-2090, 01-2235.
Argued Apr. 5, 2002.
Decided Sept. 19, 2002.
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).
ARGUED: Bonnie Scott Jones, THE CENTER FOR RE-
PRODUCTIVE LAW & POLICY, New York, New York,
for Appellants. Boyd Benjamin Nicholson, Jr., HAYNS-
WORTH, SINKLER, BOYD, P.A., Greenville, South Caro-
lina, for Appellees. ON BRIEF: Randall Scott Hiller,
Greenville, South Carolina, for Appellants. George Dewey
Oxner, Jr., Floyd Matlock Elliott, HAYNSWORTH, SIN-
KLER, 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 ENVI-
RONMENTAL CONTROL, Columbia, South Carolina, for
Appellees.
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.
Affirmed in part and reversed in part by published
opinion. Judge NIEMEYER wrote the opinion, in which
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A-3
Senior Judge MICHAEL joined. Judge KING wrote a
dissenting opinion.
OPINION
NIEMEYER, Circuit Judge.
*1 This appeal continues our review of the facial
constitutional challenges made by abortion clinics in South
Carolina to Regulation 61-12 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.
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 nongovernmental 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.
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.
A-4
I
As authorized in §§ 44-41-10 et seg. 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 Li-
censing Abortion Clinics.” Because Regulation 61-12, which
comprehensively regulates abortion clinics in South Carolina,
was summarized more fully in Bryant J, 222 F.3d at 160-62,
we only briefly summarize its ten chapters here:
Chapter 1, entitled “Definitions and Requirements for Li-
censure,” includes definitions of relevant terms and sets forth
the general requirement that abortion clinics in South Caro-
lina be licensed and subject to inspections. A regulated
abortion clinic is defined as “[a]ny facility, other than a hos-
pital as defined in Section 101.J, in which any second tri-
mester 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 penal-
ties, including suspension or revocation of its license or a
monetary fine. Jd. § 103.
Chapter 2, entitled “Administration and Management,”
describes operational policies and procedures, as well as per-
sonnel requirements. It also includes a summary of the pa-
tients’ rights. Jd. § 209.
Chapter 3, entitled “Patient Care,” prescribes minimum
procedures required in the treatment of all patients and a
limitation of the procedures that may be provided at the fe-
cility. The chapter includes admissions criteria, staff respon-
sibilities, and details regarding abortion procedure and fol-
low-up care. Jd. § 301. Also included within this chapter are
certain facility requirements, such as pharmaceutical capa-
bilities and laboratories. Jd. §§ 303, 304. There is a specifi-
cation of minimum equipment and supplies, id. § 306, and a
requirement that clinics implement an ongoing plan for im-
provement of patient care, id. § 308. The chapter further
specifies that for purposes of emergency care, staff or con-
A-5
sulting physicians shall have admitting privileges at a local
hospital that has appropriate obstetrical and gynecological
services. Id. § 305. Finally, the chapter requires that abor-
tion clinics make arrangements for consultation or referral
services “in the specialties of obstetrics/gynecology, anesthe-
siology, surgery, psychiatry, psychology, clinical pathology
and pathology, clergy, and social services, as well as any
other indicated field, to be available as needed.” Jd. § 307.
*2 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 lo-
cation” for at least ten years. Jd. §§ 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 in-
volves patients, staff, or visitors.” Jd. § 403.
Chapter 5, entitled “Functional Safety and Maintenance,”
deals with safety in clinics’ handling of hazardous materials,
needles, syringes, and similar materials. Jd. § 501. It also
requires the maintenance of emergency equipment and a plan
for disaster preparedness. Jd. §§ 502, 503.
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.
Chapter 7, entitled “Fire Protection and Prevention,” de-
tails specific requirements for fire protection and safety, in-
cluding mandatory fire drills and alarm testing.
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.
Chapter 9, entitled “Prerequisites for Initial Licensure,”
includes the requirements for plan and construction approval,
A-6
the existence of documentation demonstrating licensure, and
the necessary facility permits.
Finally, Chapter 10, entitled “General,” states in its en-
tirety, “Conditions arising that have not been addressed in
these regulations shall be managed in accordance with the
best practices as interpreted by the Department.”
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 de-
claratory judgment that Regulation 61-12 was facially uncon-
stitutional 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 Amend-
ment 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.
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 J, 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 di-
rectly at a woman’s right to make the decision to have an
abortion. The $23-$75 increased cost per abortion attribut-
able 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. Jd. at 169-72. Because the regulation
did not strike at the abortion-decision right itself, we also ap-
paemicnead
A-7
| plied 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
“fa] 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.
*3 After the Supreme Court denied the plaintiffs’ peti-
tion for a writ of certiorari, see 531 U.S. 1191 (2001), we
remanded the case to the district court to address the plain-
tiffs’ other constitutional challenges.
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 unconstitution-
ally 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 pa-
tients were identified. Greenville Women’s Clinic and Wil-
liam 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 pa-
tients’ privacy rights.
Il
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 par-
A-8
ties, upon whose decisions the regulation imposes no stan-
dard 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 (Sth Cir. 1964).
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 re-
ferral 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 hos-
pital to be available during “operating-hours,” DHEC Reg.
61-12, § 205(c)(2); (2) that a physician at the clinic have ad-
mitting privileges at a local hospital with ‘“obstetri-
cal/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 obstet-
rics/gynecology, anesthesiology, surgery, psychiatry, psy-
chology, clinical pathology and pathology, clergy, and social
services, as well as any other indicated field, to be available
as needed,” id. § 307. .
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 Col-
lege 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 li-
cense or losing their license because of any inability to es-
tablish such arrangements are not supported by the record.
Indeed, both Greenville Women’s Clinic and Dr. Lynn, the
A-9
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 abor-
tion clinics’ position.
*4 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 circum-
stances 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 specula-
tion — sufficient to rebut the regulation’s presumptive con-
stitutionality. Yet, in this record, we find only speculation.
There is nothing in the record or, indeed, in the general
experience in South Carolina that suggests that the require-
ments to have admitting arrangements with local hospitals
and referral arrangements with local experts in various re-
lated 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 arrange-
ments. The abortion clinics’ asserted fears are further un-
dermined by South Carolina’s requirement that public hos-
pitals 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); of
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 re-
A-10
quired to be made only “as needed.” See DHEC Reg. 61-12,
§ 307.
These requirements of having admitting privileges at lo-
cal 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 physi-
cians 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.
Accordingly, we reject the abortion clinics’ due process
challenge to Regulation 61-12 based on the regulation’s re-
quirement that abortion clinics have admitting privileges to
local hospitals and referral arrangements with relevant ex-
perts.
Il
The abortion ciinics also contend that § 307 of Regula-
tion 61-12 is a State-sponsored “law respecting an establish-
ment of religion,” as prohibited by the First and Fourteenth
Amendments. Section 307 provides in relevant part:
Arrangements shall be made for consultation
or referral services in the specialties of ...
clergy ..., to be available as needed.
*5 The abortion clinics contend that this section re-
quires that the clinics “establish formal, ongoing relation-
ships with clergy persons who will be available to provide
counseling services to their patients upon referral.” And they
ee
A-11
argue that “[uJnder 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 medi-
cine. To enforce the regulation, DHEC must assess the ade-
quacy 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 Es-
tablishment 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.”
We conclude, however, that the abortion clinics’ argu-
ment is grounded on a substantial misreading of § 307, im-
puting 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 pa-
tients 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 spe-
cialists 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 re-
ferral, 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.
The requirements of § 307 simply cannot be construed to
“force physicians to participate in religion,” or to “assess pa-
tients’ needs for religious counseling,” or to “force physi-
cians 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
A-12 -
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 ar-
rangements “‘as needed,” a clinic need not assist the patient
by making a referral to clergy unless the patient so requests.
*6 Rather than establishing religion, this section would
appear at most to require a clinic to accommodate the re-
quests of patients to exercise religion, a right also protected
by the First Amendment. See U.S. CONST. amend. I (forbid-
ding 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 pa-
tient’s potential desire to consult clergy in making that deci-
sion. As the Supreme Court observed in Planned Parent-
hood 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:
As humankind is the most gifted of living
creatures and the mystery of human procrea-
tion remains one of life’s most awesome
events, so it follows that the deliberate inter-
ference with the process of human birth pro-
vokes unanswerable questions, unpredictable
emotions, and unintended social and, often,
personal consequences beyond simply the
medical ones.
* 222 F.3d at 175.
Accordingly, we conclude that the requirement imposed
by § 307 on abortion clinics to make arrangements for refer-
ral services to clergy, as needed, does not, on its face, estab-
lish 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
at ye aS ee ee ee
A-13
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. Spe-
cific instances of enforcement may, of course, still be chal-
lenged on a case-by-case basis as they occur.
IV
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” ba-
sis. They maintain that the regulation uses ambiguous adjec-
tives, 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 regu-
lation cannot mean what it says. Finally, they point to inher-
ently 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 exhaus-
tive:
*7 1. Section 102(J), which prohibits using
an abortion facility name that is similar to the
name of another such facility, but does not de-
fine how “‘similarity” will be determined.
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 fa-
cility.”
A-14
3. Section 103(F), which gives DHEC dis-
cretion with respect to a particular violation to
impose any penalty within the range of possi-
ble penalties.
4. Section 201(B), which requires abortion
providers to create, and DHEC to assess, poli-
cies and procedures on such matters as “‘pa-
tient rights” and “functional safety.” |
5. Section 204, which requires that staff be
“adequately trained and capable of providing
appropriate service and supervision to the pa-
tients.”
6. Section 204(A), which requires that a pro-
vider “verify” an employee’s “health and per-
sonal background.”
7. Section 204(D), which prohibits employ-
ees and volunteers with “any ... contagious
disease or illness [from working] in any ca-
pacity in which there is a likelihood of such
person transmitting disease to other individu-
als.”
8. Section 205(C)(1), which requires physi-
cians performing abortions to be “properly
qualified by training and experience to per-
form pregnancy termination procedures.”
9. Section 301, which requires the creation of
various policies and procedures “designed to
ensure professional and safe care for patients.”
10. Section 305(A), which requires that “ail
staff and/or consulting physicians shall have
A-15
admitting privileges at one or more local hos-
pitals.”
11. Section 306, which requires that “appro--
priate equipment and supplies” be maintained,
with no specific requirements.
12. Section 307, which requires among the re-
quired consultation services, “any other indi-
cated field, to be available as needed.”
13. Sections 308(A) and (C), which require
abortion facilities to establish a quality im-
provement plan that involves “criteria-based”
evaluation of patient care.
14. Section 501(A), which requires abortion
facilities to promulgate a range of policies and
procedures “to enhance safety.”
15. Section 602(A), which requires adequate
space for sterile supplies and equipment.
16. Section 604, which requires that the facili-
ties “be kept neat, clean and free from odors.”
17. Section 606, which requires that “all out-
side areas ... shall be kept free of ... grass ...
that may serve ... as a haven for insects.”
18. Section 807, which requires that an “ade-
quate number of examination/procedure
rooms” and an “adequate number of recovery
rooms” be provided.
19. Chapter 10, which states in its entirety,
that “[cJonditions arising that have not been
A-16
addressed in these regulations shall be man-
aged in accordance with the best practices as
interpreted by the Department.”
In sum, the abortion clinics complain that Regulation 61-12
does not provide sufficient specifics to explain what conduct
is actually mandated or prohibited.
*8 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 Ob-
stetricians and Gynecologists (“ACOG”) standards for ob-
stetricians and gynecologists.”
“A statute can be impermissibly vague for either of two
independent reasons. First, if it fails to provide people of or-
dinary 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 en-
ables “arbitrary and discriminatory enforcement.” /d. at 108.
Furthermore, the degree of clarity required depends on the
type of regulation:
Economic regulation is subject to a less strict
vagueness test because its subject matter is
often more narrow, and because businesses ...
A-17
can be expected to consult relevant legislation
in advance of action.... The Court has also ex-
pressed greater tolerance of enactments with
civil rather than criminal penalties because the
consequences of imprecision are qualitatively
less severe.
Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc.,
455 U.S. 489, 498-99 (1982) (footnotes omitted). .
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 con-
text 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 proce-
dures.” The abortion clinics argue that they do not under-
stand how physicians need to be qualified to satisfy this pro-
vision. 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.
*9 The most unclear provision in Regulation 61-12
may be Chapter 10, which provides that “[clonditions arising
A-18
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 IIT”
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 abor-
tion clinics’ due process rights.
In addition to concluding that persons of reasonable in-
telligence 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 sug-
gested factors for determining the amount, including the fa-
cility’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.
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 pos-
sible 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 applica-
tions” (quoting United States v. Raines, 362 U.S. 17, 23
A-19
(1960))). Accordingly, we affirm the district court’s conclu-
sion that Regulation 61-12 is not unconstitutionally vague.
V
South Carolina, in its cross-appeal, challenges the district
court’s ruling that § 102(F)(2) of Regulation 61-12 is uncon-
stitutional. 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 prob-
lem 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 Abcrtion 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 com-
plications to appropriate private and legally sanctioned public
agencies generally improve[s] family planning services and
public health information.” In addition, South Carolina ar-
gues that its statutes and regulations provide adequately for
the privacy of patients’ records. |
*10 The abortion clinics contend, on the other hand, that
disclosure of patients’ names and records violates the pa-
tients’ privacy rights as defined in Whalen v. Roe, 429 U.S.
589, 597 (1977) (recognizing a right to privacy “in avoiding
A-20
disclosure of personal matters”’), and Walls v. City of Peters-
burg, 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.”
South Carolina’s abortion statute requires that each abor-
tion 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 promuigate regulations
for the maintenance of medical records and reports. See id.
§§ 44-41-70, 44-41-75.
To carry out its mandate, the DHEC promulgated
Regulation 61-12, comprehensively providing for the gen-
eration and maintenance of records and reporting as neces-
sary 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 pre-
scribes a list of items that must be included in patients’ medi-
cal 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 person-
nel file, documenting the employee’s job description, work
assignments, in-service education, licensure, if applicable,
A-21
and tuberculosis skin-testing. See id. § 204(H). In-service
training programs, providing employees training in specified
areas at least once annually, must also be documented, re-
flecting 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 safety-
testing 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 suffi-
cient to inform patients. See, e.g., id. §§ 203, 208, 209.
*11 In addition to its requirements for generating and
maintaining records, Regulation 61-12 imposes reporting re-
quirements. 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 ad-
dition, 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 docu-
ments “required in the course of inspections or investiga-
tions.” See id. § 102(F)(2).
The abortion clinics do not seriously challenge the re-
quirement of generating and maintaining records. Indeed,
they would have to acknowledge that each type of record re-
lates 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).
In Whalen, the Supreme Court upheld, against constitu-
tional 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
A-22
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 griev-
ous threat to either interest to establish a constitutional viola-
tion.” Jd. at 600. The Court noted that the invasions of pri-
vacy 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:
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. In response to the appellants’ suggestions that the
information could become public through deliberate or neg!i-
gent 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 in-
adequate protection against unwarranted disclosures is surely
not a sufficient reason for invalidating the entire patient-
identification program.” Jd. at 601-02.
Similarly, in Danforth, the patients attacked a record-
keeping provision of Missouri’s abortion statute contending,
among other things, that it invaded the patient’s “right to pri-
vacy 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 confiden-
A-23
tially and would be used only for statistical purposes. Nev-
ertheless, the information was reportable to local, state and
national public health officers. In upholding these require-
ments, the Court said: “Recordkeeping and reporting re-
quirements that are reasonably directed to the preservation of
maternal health and that properly respect a patient’s confi-
dentiality and privacy are permissible.” Jd. at 80. The Court
explained that the requirements of confidentiality and the
limited duration of document-maintenance (seven years) “‘as-
sist[ed] and persuad{ed]” the Court to conclude that the re-
cordkeeping requirement had no “legally significant impact
or consequence on the abortion decision or on the physician-
patient relationship.” Jd. at 81.
*12 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 particu-
larly so in view of the regulation’s requirement that all rec-
ords be treated as confidential. While our conclusion in Bry-
ant 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 inso-
far as it supports a conclusion that recordkeeping require-
ments are meaningful to the overall health and safety pur-
poses of Regulation 61-12.
Accordingly, we conclude that South Carolina’s record-
keeping 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 require-
ments unconstitutional, as the abortion clinics argue. South
Carolina must still demonstrate that the records it requires
that contain personal information will be maintained in con-
fidence to the extent possible as it uses the records to ensure
the health and safety of its citizens. See Whalen, 429 US. at
602 (noting that disclosure to public health agencies are “an
A-24
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 in-
formation will not be disclosed.
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 ap-
pear 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. Jd.
Similarly, § 44-7-315, which authorizes the disclosure of in-
formation relating to licensed facilities, provides that “the
Department may not disclose the identity of individuals pres-
ent 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.
The abortion statute itself, which requires that each abor-
tion 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.
*13 Consistent with these statutory mandates to pre-
serve the privacy of patients, Regulation 61-12 explicitly re-
quires confidentiality of patients’ records. Section 402 pro-
A-25
vides that “[aJll records shall be treated as confidential.”
Moreover, employees working in abortion clinics must be
trained on the “confidentiality of patient information and re-
cords, 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.” Jd. § 209(A) (emphasis
added).
While § 102(F) authorizes a State inspector to review re-
cords 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 regu-
latory mandates to protect the patient’s privacy. The Su-
preme Court has recognized that “[rJequiring such disclo-
sures 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 US. at 81.
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 re-
quire unnecessary disclosure of protected information, in
violation of the privacy right identified in Whalen, 429 US.
at 599-600. Even though the abortion clinics can conceive of
circumstances where patients’ privacy rights could be vio-
lated, either deliberately or through negligence, we cannot
assume that the confidentiality measures adopted by South
Carolina to prevent such violations will be administered im-
properly. Whalen, 429 U.S. at 601-02.
Accordingly, we reverse the district court’s conclusion
that Regulation 61-12 violates patients’ privacy rights, as
A-26
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 constitu-
tional a State maintained computer file containing the names
and addresses of patients for whom drugs had been pre-
scribed).
VI
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 Establish-
ment 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.
*14 AFFIRMED IN PART REVERSED IN PART.
KING, Circuit Judge, dissenting:
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 legisla-
tures have taken an increasingly active role in regulating ac-
cess to abortion; in many places, burdensome regulations
have made abortions effectively unavailable, if not techni-
cally 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’”’).!
1 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
A-27
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.2_ S.C. Code Ann. § 56-3-8910 (West 2002).3 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 pro-
vider, and between 1992 and 1996, the number of such pro-
viders 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, No-
vember/December 1998.
South Carolina is not, however, entitled to adopt and pur-
sue an anti-abortion agenda at the expense of constitutional
physicians’ offices outside of the abortion context.” Greenville Women's
Clinic v. Bryant, 222 F.3d 157, 178 (4th Cir. 2000) (Hamilton, J., dis-
senting). Second, the South Carolina Department of Health and Envi-
ronmental Control (“DHEC”), in writing the Regulation, specifically tai-
lored it to abortion clinics. Jd. at 184-85. Finally, the Regulation
contains some provisions, such as the clergy referral requirement dis-
cussed below, see infra Part Il, that are found nowhere else in the South
Carolina Code.
2 | express no view on whether this policy is impacted by our recent deci-
sion in Sons of Confederate Veterans, Inc. v. Commissioner of the Vir-
ginia Department of Motor Vehicles, 288 F 3d 610 (4th Cir. 2002).
3 Other South Carolina statutes demonstrate a similar hostility to a
- woman’s constitutional right to seek an abortion. Sve, 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 ana-
tomical 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).
A-28
rights. Having carefully examined the constitutional chal-
lenges made by Greenville Women’s Clinic and other abor-
tion 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:
First, the majority improperly reverses the
district court on the informational privacy
issue;
Second, the majority ignores the conflict be-
tween the clergy referral requirement and the
Establishment Clause;
Third, the majority upholds uncorstitutionally
vague and ambiguous provisions of the
Regulation; and
Fourth, the majority endorses a standardless
delegation of state power that contravenes the
Due Process Clause.
I will discuss each of these points in turn.‘
4 The majority also improperly focuses on the factthat 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 circum-
stances” 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 ofintense debate. In any
event, the Court has indicated that the Salerno staadard 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) (analyzng 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. Mora-
les, 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.
A-29
I.
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 unconstitu-
tional.5 The Disclosure Provision concerns the State’s access
to private medical records,® and the district court properly
found that South Carolina had failed to demonstrate a suffi-
cient interest in obtaining information identifying the female
patients of abortion clinics.’ The majority incorrectly re-
verses the district court on this issue.
*15 The Supreme Court has identified two types of pri-
vacy 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 “in-
formational 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 pri-
vate medical records, and the personal and confidential in-
5 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).
6 Pursuant to § 401(A)(1) of the Regulation, abortion clinics in South
Carolina are required to maintain records with various identifying infor-
mation, including:
name, address, telephone number, social security number, date of
birth, father’s and mother’s names when patient is a minor, hus-
band’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).
7 By definition, the Regulation only applies to clinics “in which any sec-
ond trimester or five or more first trimester abortions per month are per-
formed.” 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.
A-30
formation contained therein, implicates this informational
privacy right.
Of course, the right to informational privacy is not abso-
lute, and a state does not necessarily violate that right by re-
quiring disclosure of private medical records. Jd. 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 consti-
tutional 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 out-
weighs the individual’s privacy interest.” Jd. 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 Deci-
sion’).
A.
The constitutional right to privacy in pregnancy-related
medical information is firmly established. Indeed, the Su-
preme 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 ano-
nymity.” Thornburgh v. Am. Coll. of Obstetricians and Gy-
necologists, 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 prop-
erly private, or more basic to individual dignity and auton-
A-31
omy, than a woman’s decision ... whether to end her preg-
nancy.”) (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 recogni-
tion of the private nature of reproductive decisions, the
womer: seeking services at abortion clinics in South Carolina
unquestionably possess a constitutionally protected privacy
interest in the information sought by the State under the Dis-
closure Provision.
B.
*16 In assessing the validity of the Disclosure Provi-
sion, we must also consider whether South Carolina has es-
tablished “a compelling governmental interest in disclosure
[that] outweighs the individual’s privacy interest.” Walls,
895 F.2d at 192; see also Carey v. Population Servs. 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.
The Supreme Court has recognized that a state has an in-
terest 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 inter-
ests, and must be narrowly drawn to express only those inter-
ests.”” Walls, 898 F.2d at 192 (quoting Carey, 431 U.S. at
686).
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 infor-
mation is needed in order to investigate complaints against
abortion clinics. However, the State has failed to demon-
strate a need to contact patients in such situations. In fact,
complaints involving compliance with issues such as struc-
A-32
tural 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.
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 pri-
vacy interest of every woman who seeks an abortion at a
South Carolina clinic.
In short, South Carolina has failed to demonstrate a com-
pelling need for access to information identifying every pa-
tient 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 ac-
cess 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 Dis-
closure Provision to serve its interest in disclosure.
Cc.
In assessing whether the Disclosure Provision contra-
venes the nght to informational privacy, we must also con-
sider the probability of the unauthorized disclosure of the in-
formation 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 safeguar. .esigned by the State to
prevent such improper disclosure sea ve to weaken a woman’s
privacy interest and reduce the need to prohibit South Caro-
A-33
lina from collecting the information in the first place. Walls,
895 F.2d at 194.
*17 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 informa-
tion. See S.C. Code Ann. § 44-7-310 (West 2002);8 S.C.
Code Ann. § 44-7-315 (West 2002).? To the contrary, those
statutes contain gaping holes in the protections they afford
against public disclosure. For example, § 44-7-310 author-
izes the public disclosure of identifying information during
licensure proceedings. And § 44-7-315 requires, upon writ-
ten request, the public disclosure of information obtained
through inspection.
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 in-
8 Section 310, regarding “Certain information not to be disclosed pub-
licly,” 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 fa-
cility or as ordered by a court of competent jurisdiction.
S.C. Code Ann. § 44-7-310 (West 2002) (emphasis added).
9 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 de-
partment may not disclose the identity of individuals present in a fa-
cility licensed by the department....
S.C. Code Ann. § 44-7-315 (West 2002) (emphasis added).
A-34
terpretations, 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.
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 In-
formation Act requests,” South Carolina has failed to follow
this directive. In point of fact, the evidence shows that abor-
tion protesters distributed a flyer containing a photocopy of a
medical record obtained from DHEC concerning a fifteen-
year-old girl’s pregnancy termination. Furthermore, physi-
cians testified that similar types of confidential information
collected by the State have been made available to the public.
D.
It is of significance, in assessing the validity of the Dis-
closure Provision, that the recordkeeping requirements es-
tablished 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 Su-
preme 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, pursu-
ant to a doctor’s prescription, certain controlled substances
for which there were both lawful and unlawful markets. Jd.
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. Jd. at
A-35
593-94. Further, the public disclosure of patients’ identities
was expressly prohibited by both a statute and an administra-
tive regulation. Jd. at 594-95.
*18 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 abor-
tion patients differ in substance from the records collected in
Whalen. In Whalen, the information compiled on drug use
provided potentially incriminating evidence about the pa-
tients themselves, not just about the medical doctors who
wrote the prescriptions. Jd. 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. 10
10 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 be-
cause of state interest in obtaining personal information of employees);
Hodge v. Jones, 31 F.3d 157, 166 (4th Cir. 1994) (upholding data collec-
tion of reports of child abuse to aid future investigations of parents). The
majority has unjustifiably extended these earlier decisions by now al-
lowing South Carolina to collect patient information in order to investi-
gate clinics.
Ip the only situation where the need to obtain private information related
to a third party, the scope of the privacy invasion was natrowly 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 do-
nor’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 anony-
mous donor, but the identities of the donor and the donor’s counsel were
known only to the court. Jd 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.
A-36
Finally, the plaintiffs in Whalen claimed to fear the disclo-
sure of their medical records because of the stigma attached
to the use of controlled substances. Jd. 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.
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 con-
cerns. In sum, the Disclosure Provision violates the consti-
tutionally protected right of informational privacy, and the
majority is incorrect to conciude otherwise.
i Il.
I also disagree with the majority on the constitutionality
of § 307 of the Regulation (the “Consultation Provision’’).!!
The Plaintiffs maintain that the Consultation Provision un-
constitutionally compels South Carolina abortion clinics to
form professional affiliations with members of the clergy and
entangles the State in religious matters.'2 The majority, on
11 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 avail-
able as needed.
24 S.C. Code Ann. Regs. 61-12, § 307 (Cum. Supp. 2001) (emphasis
added).
12 Plaintiffs also contend that the Consultation Provision improperly
gives religious leaders veto authority over the issuance of abortion li-
censes. Because I would find that the Provision violates the Establish-
A-37
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. 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.
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 Provi-
sion, abortion providers in South Carolina must establish pro-
fessional 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 Provi-
sion, the State inevitably must establish and enforce religious
criteria. Because the Establishment Clause!? precludes South
Carolina from becoming entangled with religion in this way,
the Consultation Provision is unconstitutional.
A.
*19 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
ment Clause in excessively entangling the State with religious counsel-.
ing, 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.
13 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).
A-38
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 Pro-
vision unequivocally requires clinics to establish prear-
rangements 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 provid-
ers must do more than merely make a telephone book avail-
able to their female patients. Indeed, for a female patient to
have access to specialists in the fields specified in the Con-
sultation Provision, such as anesthesiology or surgery, a tele-
phone book would not be particularly helpful. And the ma-
jority gives no reason why the mandated “arrangements”
with members of the clergy should be treated differently.
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.!4 In fact, Mr. Moore testified that prior ar-
rangements are required with “maybe two or three different
denominations just to be on call.” Although “[ijt probably
14 In general, an agency’s interpretation of its own regulation deserves
considerable deference. See Brown v. S.C. Dep’t of Health & Envil.
Control, 560 S.E.2d 410, 415 (S.C. 2002). Although a position taken in
litigation (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 Caro-
lina 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.
A-39
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.
B.
It is with this interpretation of the clergy referral re-
quirement in mind that I turn to an assessment of the consti-
tutionality of the Consultation Provision. In order to deter-
mine 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. /d. at
612-13. As explained below, the Consultation Provision
clearly violates Lemon’s third prong, and it probably contra-
venes the second prong as well. >
1.
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 pro-
tecting maternal health and to ensure that women seeking
abortion services have access to experts in a range of spe-
cialty fields. The first prong of Lemon contemplates an in-
quiry iato the subjective intentions of the government. See
Wallace v. Jaffree, 472 U.S. 38, 56 (1985) (“[I]t is appropri-
ate 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
A-40
evidence of a religious purpose, the Consultation Provision
survives the first prong of the Lemon test.
2.
*20 By contrast, the Consultation Provision in all likeli-
hood 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. This mandatory af-
filiation 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.!5 Under
our Constitution, however, the government is not permitted
to sponsor the indoctrination of religious beliefs in this man-
ner.
More disturbingly, South Carolina has indicated it will
play favorites among religions in enforcing the Consultation
15 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. Ken-
drick, 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.
A-41
Provision.!6 The interpretation given to this Provision by
DHEC’s Division of Licensing unquestionably violates the
hallmark of the Establishment Clause, which is that the gov-
ernment 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 fundamen-
tal tenet of the Establishment Clause [which] is that the im-
primatur of the state shall not directly or indirectly be placed
upon one religious faith over another.” Jd. at 1346 (Luttig,
J., concurring). Given these defects, the Consultation Provi-
sion almost certainly contravenes the second prong of the
Lemon test.
3.
In any event, the Consultation Provision surely fails the
third prong of the Lemon test, because it excessively entan-
gles 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 US. at
615. In this case, the benefited institutions are quintessen-
tially religious. Unlike the religious groups that have else-
where been allowed to participate in government programs,
the institutions that receive the benefit of referral arrange-
16 If the Consultation Provision is enforced in a manner where certain
religions are actually favored, as Mr. Moore suggests, it should be en-
joined 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 a// 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) ( “What-
ever else the Establishment Clause may mean ... it certainly means at the
very least that government may not demonstrate a preference for one par-
ticular sect or creed.”).
—_ meee ee ee ee
A-42
ments under the Consultation Provision are pervasively sec-
tarian. 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 rec-
ognized as unconstitutional.
*21 Further, the State’s enforcement of the Consultation
Provision will inevitably entangle the State in religious coun-
seling. 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 suf-
ficient to meet the religious needs and preferences of female
patients. In requiring DHEC inspectors to determine whether
abortion providers have complied with these religious re-
quirements, the Consultation Provision excessively entangles
the State in religious indoctrination. As such, it violates the
Establishment Clause, and it should be invalidated.
Il.
While I agree with the majority that most of the chal-
lenged aspects of the Regulation are sufficiently clear to
withstand a constitutional vagueness analysis,!7 I see two of
those provisions as unconstitutionally vague. First, the in-
spectors for South Carolina have unbridled discretion to de-
cide 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 Regula-
tion (the “Best Practices Provisions”). See 24 S.C. Code
17 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.
A-43
Ann. Regs. 61-12, Chapter 10 (Cum. Supp. 2001); 24 S.C.
Code Ann. Regs. 61-12, § 103(C) (Cum. Supp. 2001).!8
Second, under a particularly incomprehensible section, abor-
tion 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 pos-
sess 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).!9 The ma-
jority unjustifiably and incorrectly ignores the fundamental
vagueness of these Provisions.
The Due Process guarantee of the Fourteenth Amend-
ment 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
18 Chapter 10 of the Regulation provides: “Conditions arising that have
not been addressed in these regulations shall be managed in accordance
wiil the best practices as interpreted by the Department.” 24 S.C. Code
Ann. Regs. 61-12, Chapter 10 (Cum. Supp. 2001). Section 103(C) simi-
larly 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 prac-
tices 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, be-
cause Chapter 10 and § 103(C) contain the same “best practices” lan-
guage, I refer to them collectively as the “Best Practices Provisions.”
19 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 obstetri-
cal/gynecological services or shall have in place documented ar-
rangements approved by the Department for the transfer of emer-
gency cases when hospitalization becomes necessary.
24 S.C. Code Ann. Regs. 61-12, § 305(A) (Cum. Supp. 2001) (emphasis
added).
A-44
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 par-
tially 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).
A.
*22 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 pro-
vide for civil penalties only. Village of Hoffman Estates v.
Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498-99 (1982)
(“The Court has also expressed greater tolerance of enact-
ments with civil rather than criminal penalties because the
consequences of imprecision are qualitatively less severe.’’).
While the majority acknowledges this principle, it inexplica-
bly 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 Caro-
lina 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.
Further, even if criminal penalties were not implicated,
the Regulation threatens the exercise of constitutionally pro-
tected rights. For this reason alone, it must achieve a height-
ened level of precision. Colautti v. Franklin, 439 U.S. 379,
391, 394 (1979) (noting that regulations that threaten abor-
tion 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 dis-
A-45
criminatory enforcement. Women’s Med. Ctr. of Northwest
Houston v. Bell, 248 F.3d 411, 422 (Sth Cir. 2001) (“Espe-
cially in the context of abortion, a constitutionally protected
right that has been a traditional target of hostility, standard-
less laws and regulations ... open the door to potentially arbi-
trary and discriminatory enforcement.”). Given the fact that
the South Carolina licensing scheme threatens criminal pen-
alties, 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.
B.
l.
The majority candidly concedes that the “best practices”
requirement makes Chapter 10 the “most unclear provision in
Regulation 61-12.” 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 an-
swer is “No.” Is the language of these Provisions so stan-
dardless that it enables arbitrary and discriminatory enforce-
ment? The answer is “Yes.”
*23 The majority seems to rely, inappropriately, on a
reading of the Regulation “in its entirety” in deciding to up-
hold 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
A-46
different provisions of the Child Pornography Prevention Act
separately and concluding that only certain subsections vio-
lated the First Amendment). Standing alone, the Best Prac-
tices 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.
y
The And/Or Provision found in § 305(A) of the Regula-
tion, as the majority acknowledges, is also “inherently am-
biguous.” 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 Caro-
lina, 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, pos-
sess admitting privileges. .
3.
In sum, neither the Best Practices Provisions nor the
And/Or Provision set forth a sufficiently ascertainable stan-
dard 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.
A-47
IV.
Finally, the majority errs in ruling that the Regulation’s
delegation of decisionmaking authority over abortion licens-
ing complies with due process requirements. Several parts of
the Regulation give private parties authority over the licens-
ing of abortion providers in South Carolina. These provi-
sions include: § 205(C)(2),?° § 305(A),2! and § 309(B)22
(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 unconstitu-
tional delegations of government licensing authority.
*24 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. Hop-
kins, 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 (Sth Cir. 1964). And if
20 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).
21 | have previously designated § 305(A) of the Regulation as the
“And/Or Provision.” See supra Part Ill. It is also one of the Hospital
Privilege Provisions implicated in the improper delegation challenge to
the Regulation’s hospital admitting privilege requirements.
22 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).
A-48
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).
The Plaintiffs maintain that several provisions of the
Regulation constitute an improper delegation, without suffi-
cient standards, of the State’s licensing authority. Specifi-
cally, 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 provid-
ers. 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 affili-
ate with abortion providers. It relies, instead, on the irrele-
vant fact that such providers have not yet had difficulty ob-
taining licenses.
In rejecting the Plaintiffs’ delegation challenges, it is
striking that the majority fails to address two contrary deci-
sions 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 li-
censing 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 Caro-
lina, addressed the very question we face today, and the ma-
jority takes issue with his reasoning without mentioning his
considered opinion.23 In that case, Hallmark Clinic chal-
23 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 constitu-
:
A-49
lenged a North Carolina licensing scheme that required abor-
tion providers to have transfer agreements with local hospi-
tals. 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 pri-
vate institution the exercise of arbitrary and capricious
power.” Jd. at 1159. Ifa 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.” Jd. Here, South
Carolina, like North Carolina in the 1970s, has “given hos-
pitals the arbiwrary power to veto the performance of abor-
tions for any reason or no reason at all. The state cannot
grant hospitals power it does not have itself.” Jd. at 1158-59.
*25 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 dis-
trict 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. Jd. 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 privi-
lege requirements “violate due process concepts because they
delegate a licensing function to private entities without stan-
dards 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
tional 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.
A-50
to determine the nature of rights to property in which other
individuals have a property interest, without supplying stan-
dards to guide the private parties’ discretion.”’).
Because the Hospital Privilege Provisions of the Regula-
tion 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 ap-
ply to the Hospital Privilege Provisions) constitute standard-
less delegations of state power. As such, they violate the
Due Process Clause and should be invalidated.
V.
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 in-
formational 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 un-
constitutionally vague; and the Hospital Privilege Provisions
violate due process by unconstitutionally delegating state li-
censing authority.
Because the majority refuses to recognize these constitu-
tional infirmities, i respectfully dissent.
2002 WL 31928629 (4th Cir. (S.C.))
END OF DOCUMENT
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A-51
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
Greenville Women’s Clinic, Charleston )
Women’s Clinic, Inc., and ) CA No.
William Lynn, M.D., on behalf of ) 6:96-1898-20
themselves and their patients seeking
abortions,
MEMORANDUM
Plaintiffs, OF DECISION
vs.
Douglas E. Bryant, in his official
capacity as Commissioner of South
Carolina Department of Health and
Environmental Control, Governor of
the State of South Carolina, and Charles)
M. Condon, in his official capacity as)
Attorney General of the State of Souih )
Carolina, )
)
)
)
)
)
)
)
)
)
)
)
Defendants. )
This matter is before the court on the briefs of the parties.
The plaintiffs challenge the constitutionality of South Caro-
lina Code Annotated Regulation 61-12 (“Regulation 61-12”).
The court now declares its findings of fact and conclusions of
law in accordance with Rule 52 of the Federal Rules of Civil
Procedure. Should a finding of fact constitute a conclusion
of law, or vice versa, the court adopts it as such and directs
that it be treated accordingly.
L FINDINGS OF FACT
1. The Greenville Women’s Clinic (“GWC”) is a medi-
cal practice in Greenville owned and operated by Drs. Buff-
kin and Campbell. (Stip. Facts { 2.)
A-52
3. Dr. Lynn owns and operates a medical practice in
Greenville called the Palmetto State Medical Clinic
(“PSMC’”’). (Stip. Facts ¥ 3.)
4. Drs. Buffkin, Campbell, and Lynn are all licensed to
practice medicine in South Carolina. (Stip. Facts ¥ 1.)
5. GWC and PSMC provide a range of gynecological
services, including first-trimester, suction curettage abor-
tions. (Stip. Facts ¥ 4.)
6. GWC also provides first-trimester medical abortions.
(Stip. Facts ¥ 5.)
7. Both the GWC and Dr. Lynn perform over five abor-
tions each month and well over sixty abortions per year.
(Stip. Facts ¥ 6.)
8. Prior to the court’s July 9, 2001, injunction, all abor-
tion clinics in the state were licensed. (Stip. Facts ¥ 7.)
9. Drs. Buffkin and Campbell of the GWC have admit-
ting privileges at Greenville-area hospitals. (Stip. Facts { 8.)
10. Although Dr. Lynn does not have admitting privi-
leges at a Greenville-area hospital, he does have a written
transfer agreement with a local doctor who does have admit-
ting privileges. Dr. Lynn also has admitting privileges at a
Beaufort-area hospital. (Stip. Facts J 9, 10.)
11. On July 27,1996, the plaintiffs filed suit seeking de-
claratory judgment that Regulation 61-12 was facially uncon-
stitutional. (Compl.) Specifically, the complaint alleged that
Regulation 61-12 was unconstitutional because it: (1) denied
the plaintiffs equal protection of the laws; (2) deprived the
plaintiffs of their right to privacy; (3) was void for vague-
ness; (4) violated the plaintiffs’ right to due process by dele-
gating veto power over facility licensing to third parties; (5)
violated the Establishment Clause; and (6) intruded on pa-
tients’ rights to confidentiality in their medical records. Af-
ter a six-day bench trial, United States District Judge William
B. Traxler, Jr., held that Regulation 61-12 was unconstitu-
tional based on the plaintiffs’ first two grounds. Judge
Traxler did not reach the four remaining claims.
E
3
x
g
A-53
12. On August 15, 2000, the United States Court of Ap-
peals for the Fourth Circuit reversed the district court’s rul-
ing. See Greenville Women’s Clinic v. Bryant, 222 F.3d
157, 175 (4th Cir. 2000).
13. The plaintiffs subsequently requested a hearing en
banc which was denied. On February 26, 2001, the United
States Supreme Court denied certiorari. See Greenville
Women’s Clinic v. Bryant, 121 S. Ct. 1188 (2001).
14. Following the Supreme Court’s denial of certiorari,
the plaintiffs requested and the court granted a 120-day pre-
liminary injunction to allow the plaintiffs to come into com-
pliance with Regulation 61-12. In addition, the parties
briefed the issue of whether there were any remaining claims.
On June 26, 2001, the court held that because the Fourth Cir-
cuit had failed to remand the case to the district court the
case had ended. See Greenville Women’s Clinic v. Bryant,
No, 6:96-1989 (D.S.C. June 26, 2001).
15. The plaintiffs appealed this ruling to the Fourth Cir-
cuit and the case was remanded to the district court to deter-
mine issues preserved but not decided by earlier opinions.
See Greenville Women’s Clinic v, Bryant, No. 01-1856 (4th
Cir. July 5, 2001). On July 9, 2001, the court granted the
plaintiffs a preliminary injunction pending the outcome of
the remaining claims.
II. CONCLUSIONS OF LAW
The court has jurisdiction based on the presence of a fed-
eral question pursuant to 28 U.S.C. § 1331. Venue in this
judicial district is appropriate based on 28 U.S.C. § 1391(b).
The plaintiffs make a facial challenge to Regulation 61-12 on
four grounds, alleging that the regulation is unconstitutional
because it (1) is void for vagueness; (2) violates the plain-
tiffs’ right to due process by delegating veto power over fa-
cility licensing to third parties; (3) violates the Establishment
Clause; and (4) intrudes on patients’ rights to confidentiality
in their medical records.
A-54
A. Vagueness
The plaintiffs assert that Regulation 61-12 is unconstitu-
tionally vague. “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 enforce-
ment.” Hill v. Colorado, 530 U.S. 703, 732 (2000).
“{S]peculation about possible vagueness in 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.’” Id. at 733 (quoting United States v.
Raines, 362 U.S. 17, 23 (1960)). A statute can never be held
to mathematical certainty. See id. A statute is not vague be-
cause “difficulty is found in determining whether certain
marginal offenses fall within [its] language.” United States
v. National Dairy Prods. Cor., 372 U.S. 29, 32 (1963). The
plaintiffs cite a litany of phrases which are allegedly uncon-
stitutionally vague. After review of the sections and taking
the Regulation 61-12 as a whole, the court finds that people
of ordinary intelligence would be able to understand what the
regulation requires, and that the statute does not encourage
arbitrary and discriminatory enforcement. In fact, it appears
that the majority of the Regulation 61-12 is identical to the
American College of Obstetricians and Gynecologists’
(“ACOG”) standards for obstetricians and gynecologists.
See Bryant, 222 F.3d at 167 (“Regulation 61-12 largely
tracks [the ACOG ] medical standards and guidelines.”
Therefore, the court finds that the plaintiffs’ constitutional
challenge to Regulation 61-12 on this ground must fail.
B. Unlawful Delegation of Veto Power
The plaintiffs allege that Regulation 61-12 should be
stricken because it allows for the unconstitutional delegation
of veto power to a third party. Specifically, the plaintiffs as-
sert that members of the public, i.e. local clergy, doctors, and
hospitals, have the ability to prevent a clinic from becoming
$y ss REISS TINTS
A-55
licensed. The plaintiffs rely on Planned Parenthood of Cen-
tral Missouri v. Danforth, 428 U.S. 52 (1976) for the propo-
sition that the government cannot give a third party absolute
veto power over abortion decisions. See 428 U.S. at 74. In
Danforth, the Court struck down a statute which required a
spouse’s consent or parental consent for a minor before a
woman could obtain an abortion. As support for its conclu-
sion, the Court cited Eisenstadt v. Baird, 405 U.S. 438 (1972)
which established that “[i]f the right of privacy means any-
thing, it is the right of the individual, married or single, to be
free from unwarranted governmental intrusion into matters so
fundamentally affecting a person as the decision whether to
bear or beget a child.” 405 U.S. at 453 (emphasis in origi-
nal). While Regulation 61-12 may affect a woman’s selec-
tion of an abortion facility, it does nothing to impede an indi-
vidual woman’s right to choose to have an abortion.
The constitutional challenge put forth by the plaintiffs re-
garding the veto argument has nothing to do with a woman’s
constitutional right to have an abortion. Instead, the plain-
tiffs are concerned with the potential that they will be de-
prived of a property interest without being afforded due pro-
cess under the fourteenth amendment. The plaintiffs,
however, have failed to demonstrate that physicians would
not be afforded due process in obtaining hospital privileges.
Therefore, the plaintiffs’ challenge to Regulation 61-12 on
this ground must fail. See generally Women’s Health Center
of West County, Inc. v. Webster, 871 F.2d 1377 (8th Cir.
1989) (statute requiring physician performing abortions to
have attending privileges at a hospital held constitutional);
1 Regulation 61-12 requires that a clinic have attending privileges or a
transfer agreement with a local hospital and have an arrangement for con-
sultation and referral services in the specialities 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. See S.C. Code Ann. Reg. 61-12 §§ 205(C)(2),
305(A), & 307.
A-56
but see Birth Control Ctrs., Inc. v. Reizen, 508 F. Supp. 1366
(E.D. Mich. 1981), aff'd in part, vacated in part, 743 F.2d
352 (6th Cir. 1984) (invalidating requirement that clinic have
transfer agreement with hospital); Hallmark Clinic v. North
Carolina Dep’t of Human Res., 380 F. Supp. 1153 (E.D.N.C.
1974) (holding that requirement that clinics have written
agreements with hospitals for patient access was unconstitu-
tional).
C. Establishment Clause
The plaintiffs assert that Regulation 61-12 violates the
Establishment Clause of the United States Constitution. To
pass constitutional muster with regard to the Establishment
Clause, (1) the statute must “have a secular purpose”; (2) its
“principal or primary effect must be one that neither ad-
vances nor inhibits religion”; and (3) “the statute must not
foster ‘an excessive government entanglement with relig-
ion.”” Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971)
(quoting Walz v. Tax Comm’n, 397 U.S. 664, 674 (1970)).
“The endorsement test does not preclude government from
acknowledging religion or from taking religion into account
in making law and policy.” Wallace v. Jaffree, 472 U.S. 38,
69 (1985) (O’Connor, J., concurring). The plaintiffs assert
that Regulation 61-12 violates the Establishment Clause in
two ways. First, because the statute requires that the clinic
have clergy available for counseling and second, because the
regulation delegates veto power to a religious entity. The
court finds these arguments unpersuasive.
First, as to the requirement that the clinic have clergy
available for counseling, the plaintiffs have not asserted nor
does the court find that Regulation 61-12 has a non-secular
purpose. The purpose of the statute is to safeguard the health
of women seeking abortions. See Greenville Women’s
Clinic v. Bryant, 222 F.3d 157, 168 (4th Cir. 2000). Nor is
the primary effect of this portion of the regulation to advance
or inhibit religion. The regulation does not require a patient
to undergo religious counseling. It simply requires that such
A-57
counseling be available if needed. The court does not see
how the availability of religious counseling advances or in-
hibits religion. Finally, the statute does not foster an “‘exces-
sive” government entanglement with religion. See Lemon,
403 U.S. at 612-13. While the requirement itself is religious
in nature, it does not require that the functions of government
and religion become intertwined. Because the regulation
only requires third parties, not state officials, to provide for
the availability of religious counseling, it is a far cry from an
excessive entanglement.
As to the assertion that the regulation impermissibly
delegates veto power to a religious entity thereby violating
the Establishment Clause, the plaintiffs rely on Larkin v.
Grendel’s Den, Inc., 459 U.S. 116 (1932) and Board of Edu-
cation of Kiryas Joel Village School District v. Grumet, 512
US. 687 (1994). In Larkin, a Massachusetts statute gave
governing bodies of schools and churches the power to pre-
vent the issuance of a liquor license for premises within five
hundred feet of a church or school. The Supreme Court held
that this statute violated the Establishment Clause. In Kiryas
Joel, a state school district carved out a special school district
for a village which consisted exclusively of practitioners of a
strict form of Judaism. The Supreme Court held that this
district improperly allocated political power to a religious
group. These cases are distinguishable from the case at bar.
Fust, Regulation 61-12 does not vest the power to pre-
vent the issuance of a license to any one person or entity. In
Larkin, a single school or church could prevent the issuance
of a liquor license. In this case, there would be multiple op-
portunities for a clinic to find clergy members who are will-
ing to be available for counseling. As to Kiryas Joel, the re-
ligious group was essentially vested with enormous authority
to run a public school in accordance with religious beliefs.
That is quite different from requiring a medical clinic to have
religious counselors available. Also, as stated above, the
regulation has a secular purpose, does not promote or inhibit
A-58
religion, and does not excessively entangle the government
with religion. See Lemon, 402 U.S. at 612-13. For these
reasons, the court finds that Regulation 61-12 does not of-
fend the Establishment Clause.
D. Informational Privacy
Last, the plaintiffs assert that Regulation 61-12 violates
their right to privacy. Specifically, the plaintiffs assert that
patients’ names and medical records are subject to govern-
ment review. “The constitutional right to privacy extends to
two types of interests; ‘one is the individual interest in
avoiding disclosure of personal matters, and another is the
interest in independence in making certain kinds of important
decisions.”” Walls v. City of Petersburg , 895 F.2d 188, 192
(4th Cir. 1990) (quoting Whalen v. Roe, 429 U.S. 589, 599-
600 (1977)). “Personal, private information in which an in-
dividual has a reasonable expectation of confidentiality is
protected by one’s constitutional right to privacy.” Id. “The
right to privacy, however, is not absolute.” Id. “If the in-
formation is protected by a person’s right to privacy, then the
defendant has the burden to prove that a compelling govern-
mental interest in disclosure outweighs the individual’s pri-
vacy interest.” Id.
The defendants do not dispute that an individual has a
reasonable expectation of confidentiality in the medical rec-
ords at issue, and it appears that the plaintiffs object only to
the availability of records which contain identifying infor-
mation. (Pl.’s Mem. Of Law on Remaining Claims at 9.)
While the Fourth Circuit has recognized that the “inspections
ensure compliance with healthcare standards,” Bryant, 222
F.3d at 171, the defendants have provided the court with no
compelling interest in the disclosure of identifying informa-
tion. The defendants argue that there are multiple safeguards
in place to protect the confidentiality of the information con-
tained in the medical records. This is irrelevant, however, if
the defendants cannot articulate a compelling interest in
viewing the information. Therefore, the court finds that sec-
A-59
tion 102(F)(2) of Regulation 61-12, which requires that “de-
partment 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 inspection or investigations,” to be uncon-
stitutional insofar as it requires access to identifying infor-
mation.2 See Thornburgh v. American College of Obstetrics
and Gynecology, 476 U.S. 747, 766 (1985) (“The decision to
terminate a pregnancy is an intensely private one that must
be protected in a way that assures anonymity”).
E. Severability
Because the court determines that a portion of Regulation
61-12 is unconstitutional, it must consider whether that por-
tion of Regulation 61-12 is severable from the remaining
regulation. “A statute may be constitutional and valid in part
and unconstitutional and invalid in part.” Thayer v. South
Carolina Tax Comm’n, 413 S.E.2d 810, 814 (1992). “The
test for severability is whether the constitutional portion of
the statute remains complete in itself, wholly independent of
that which is rejected, and is of such a character as that it
may: fairly be presumed that the Legislature would have
passed it independent of that which is in conflict with the
Constitution.” Id. at 814-15 (internal quotations and citations
omitted). Even in the absence of a severability clause, it is
clear that declaring the portion of the regulation which allows
the defendants to inspect records which include identifying
information is easily severable, leaving the remaining regu-
lation complete.
Therefore, the court finds that the unconstitutional por-
tion of Regulation 61-12 is severable.
2 This constitutional problem can be cured by the plaintiffs redacting the
documents to remove such information.
A-60
Ill, ORDER
In light of the above findings of fact and conclusions of
law, it is
ORDERED that plaintiffs’ constitutional challenge to
Regulation 61-12 fails except for the provision which allows
for the inspection of documents which contain identifying
information. The statute is only unconstitutional to the de-
gree that the documents are not redacted to remove such in-
formation. It is further
ORDERED that the preliminary injunction now in place
is hereby dissolved.
Ix IS SO ORDERED.
/s/
Henry M. Herlong, Jr.
United States District Judge
Greenville, South Carolina
August 31, 2001
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A-61
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
FILED
November 8, 2002
No. 01-2090
CA-96-1898-6-20
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
No. 01-2235
CA-96-1898-6-20
A-62
GREENVILLE WOMEN’S CLINIC; WILLIAM LYNN,
MD, on behalf of themselves and their patients
seeking abortions
Plaintiffs — Appellees
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 — Appellants
On Petition for Rehearing and Rehearing En Banc
Appellants’ petition for rehearing and rehearing en banc
was submitted to the Court. A majority of judges having
voted in a requested poll of the Court to grant rehearing en
banc,
IT IS ORDERED that rehearing en banc is granted.
IT IS FURTHER ORDERED that this case shall be cal-
endared for argument at the January 21 - 24, 2003 session of
Court. Within ten days of the date of this order, twenty (20)
additional copies of appellant’s brief, twenty (20) additional
copies of appellee’s brief, twenty (20) additional copies of
A-63
the appellant’s reply brief, if any, twenty (20) additional
copies of amicus curiae brief, if any, and twenty (20) addi-
tional copies of any previously filed supplemental authorities
pursuant to Rule 28(j), FRAP, shall be filed. Counsel for
amicus parties, if any, must file a motion for leave to partici-
pate in oral argument should they wish to be heard at argu-
ment.
Appellants will file twenty (20) additional copies of the
joint appendix.
For the Court,
/s/ Patricia S. Connor
CLERK
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
FILED
November 15, 2002
No. 01-2090
CA-96-1898-6-20
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
No. 01-2235
CA-96-1898-6-20
ee ee ee
A-65
GREENVILLE WOMEN’S CLINIC; WILLIAM LYNN,
MD, on behalf of themselves and their patients seeking
abortions
Plaintiffs — Appellees
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 — Appellants
This court’s order dated November 8, 2002, was im-
providently entered and is now vacated.
On the request for a poll on the motion for rehearing en
banc, Judge Wilkins, Michael, Motz, King, and Gregory
voted to rehear the case. Chief Judge Wilkinson and Judges
Widener, Niemeyer, and Luttig voted against rehearing the
case, and Judges Williams and Traxler were disqualified
from voting. Because a majority of the active judges did not
vote in favor of the motion, it is denied.
Entered at the direction of Judge Niemeyer for the Court.
A-66
For the Court,
/s/ Patricia S. Connor
CLERK
A-67
South Carolina Department of Health and
Environmental Control
Regulation Number 61-12
Standards for Licensing
Abortion Clinics
[Jogo]
Promulgated by the Board of Health and
Environmental Control
Administered by the Division of Health Licensing
Published in the State Register,
Volume 20, Issue 6, June 28, 1996
This is a courtesy copy of Regulation 61-12
The official document is on record in the State Register and
the Code or Regulations of S.C., 1976, as amended.
A-68
TABLE OF CONTENTS
REGULATION 61-12.
STANDARDS FOR LICENSING ABORTION CLINICS
CHAPTER/SECTION SUBJECT PAGE [omitted]
CHAPTER 1 - DEFINITIONS AND REQUIREMENTS
FOR LICENSURE 7
SECTION 101. Definitions
SECTION 102. License Requirements
SECTION 103. Penalties
CHAPTER 2 - ADMINISTRATION AND MANAGEMENT
SECTION 201. Licensee
SECTION 202. Administrator
SECTION 203. Administrative Records
SECTION 204. Personnel
SECTION 205. Clinical Staff
SECTION 206. Consent of the Patient
CHAPTER 3 - PATIENT CARE
SECTION 301. Policies and Procedures
SECTION 302. Limitation of Services Offered by
Abortion Clinics
SECTION 303. Pharmaceutical Services
SECTION 304. Laboratory Services
SECTION 305. Emergency Care
SECTION 306. Equipment and Supplies
SECTION 307. Consultation
SECTION 308. Quality Improvement
SECTION 309. Requirements for Clinics Performing
Abortions Beyond 14 Weeks
OF AE eae
A-69
CHAPTER 4 - MEDICAL RECORDS AND REPORTS
SECTION 401. Medical Records
SECTION 402. Records Storage
CHAPTER 5 - FUNCTIONAL SAFETY AND
MAINTENANCE
SECTION 501. Policies and Procedures
SECTION 502. Disaster Preparedness
SECTION 503. Maintenance
CHAPTER 6 - INFECTION CONTROL AND ~-
SANITATION
SECTION 601. General
SECTION 602. Sterilization Procedures
SECTION 603. Linen and Laundry
SECTION 605. Refuse and Waste Disposal
SECTION 606. Outside Areas
CHAPTER 7 - FIRE PROTECTION AND PREVENTION
SECTION 701. Fire-Fighting Equipment and Systems
SECTION 702. Alarms
SECTION 703. Gas Storage
CHAPTER 8 - DESIGN AND CONSTRUCTION
SECTION 802. Local and State Codes and Standards
SECTION 803. Submission of Plans and
Specifications
SECTION 804. Licensure of Existing Structures
SECTION 805. Minor Alterations in Licensed
Facilities
SECTION 806. Location
SECTION 807. Physical Facilities
SECTION 808. Water Supply and Plumbing
SECTION 809. Emergency Power and Lighting
Requirements
A-70
CHAPTER 9 - PREREQUISITES FOR INITIAL
LICENSURE
CHAPTER 10 - GENERAL
A-71
South Carolina
Department of Health and Environmental Control
REGULATION 61-12.
STANDARDS FOR LICENSING ABORTION CLINICS
Statutory Authority: Sections 44-41-10, et seq., and
44-7-110, et seq., of the Code of Laws of South Carolina,
1976, as amended.
CHAPTER 1 - DEFINITIONS AND REQUIREMENTS
FOR LICENSURE
SECTION 101. Definitions
For the purposes of these regulations, the following defini-
tions apply:
A. Abortion. The use of an instrument, medicine, drug,
or other substance or device with intent to terminate
the pregnancy of a woman, known to be pregnant, for
reasons other than to increase the probability of a live
birth, to preserve the life or health of the child after
live birth, or to remove a dead fetus.
B. Abortion Clinic. Any facility, other than a hospital as
defined in Section 101.J, in which any second tri-
mester or five or more first trimester abortions per
month are performed.
C. Allied Health Professional. A person other than a
physician who possesses specialized training and skill
acquired by completing certain courses of study or
intensive job-related training and, where applicable,
has been duly licensed or registered by appropriate hi-
censing or certification agencies. All allied health
professionals must be supervised by a physician.
a
A-72
Conception. The fecundation of the ovum by the
spermatozoa. ;
Consent. A signed and witnessed voluntary agree-
ment to the performance of an abortion.
Department. The South Carolina Department of
Health and Environmental Control.
Emancipated Minor. A minor who is or has been
married or has by court order been freed from the
care, custody, and control of her parents.
Fetal Death. Death prior to the complete expulsion or
extraction from its mother of a product of human
conception, irrespective of the duration of pregnancy;
the death is indicated by the fact that after such expul-
sion or extraction, the fetus does not breathe or show
any other evidence of life, such as beating of the
heart, pulsation of the umbilical cord, or definite
movement of voluntary muscles.
Fire Safety Authority. The State Fire Marshal, or his
designee, who performs facility fire and safety in-
spections.
Hospital. An institution licensed for hospital opera-
tion by the Department in accordance with the provi-
sions of Article 3, Chapter 7, Title 44, of the S.C.
Code of Laws, 1976, as amended, and that has also
been certified by the Department to be a suitable fa-
cility for the performance of abortion.
In Loco Parentis. Any person over the age of 18 who
has placed him/herself in the position of a lawful par-
hs ahiasaiaus
A-73
ent by assuming obligations that are incidental to the
parental relationship and has so served for a period of
60 days.
_ Licensee. The person, partnership, corporation, asso-
ciation, organization, or professional entity on whom
rests the ultimate responsibility and authority for the
conduct of the abortion clinic.
_ Medical Emergency. That condition which, on the
basis of the physician’s good faith judgment, so com-
plicates a pregnancy as to necessitate an immediate
abortion to avert the risk of her death or for which a
delay will create serious risk of substantial and irre-
versible impairment of major bodily functions.
_ Minor. A female under the age of 17.
. Physician. A person licensed to practice medicine in
this State.
. Pregnancy. The condition of a woman carrying a fe-
tus or embryo within her body.
_ Probable Gestational Age of the Embryo or Fetus.
What, in the judgment of the attending physician,
based upon the attending physician’s examination and
the woman’s medical history, is with reasonable
probability, the gestational age of the emibryo or fetus
at the time the abortion is planned to be performed.
This estimate must be guided by recommendations
found in The American College of Obstetricians and
Gynecologists Standards for Obstetric-Gynecologic
Services, i.e., calculated from the first day of the last
menstrual period.
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R. Products of Conception. Fetal and embryonic tissues
resulting from implantation in the uterus.
S. Trimester. A 12-week period of pregnancy.
1.
First. The first 12 weeks of pregnancy com-
mencing with conception rather than computed on
the basis of the menstrual cycle.
Second. That portion of a pregnancy following
the 12th week and extending through the 24th
week of gestation.
Third. That portion of pregnancy beginning with
the 25th week of gestation.
All other references in this regulation to gesta-
tional age will refer to that calculated from the
first day of the last menstrual period as used in
The American aif of Obstetricians and Gy-
necologists Standards for Obstetric-Gynecologic
Services. The following is furnished to provide
clarification of gestational age:
Calculation Weeks of Gestational Age
Conception |8 /| 10 | 12 | 14 | 16 | 18 | 20 | 22 | 24
LMP 10 | 12 | 14 | 16 | 18 | 20 | 22 | 24 | 26
T. Viability. That stage of human development when
the fetus is potentially able to live outside of the
mother’s womb with or without the aid of artificial
life support systems. (Section 44-41-10(I) of the SC
Code of Laws further states that “for the purposes of
this chapter, a legal presumption is hereby created
that viability occurs no sooner than the twenty-fourth
week of pregnancy.” The “twenty-fourth week,” as
A-75
stated in the S.C Code, is based on computation from
date of conception, i.e., the twenty-sixth week from
the first day of the last menstrual period.)
SECTION 102. License Requirements
A. License. It shall be unlawful to operate an abortion
clinic within South Carolina without possessing a
valid license issued annually by the Department. (I)
- Issuance of License. A license is issued pursuant to
the provisions of Section 44-41-10 et seq., of the
South Carolina Code of Laws of 1976, as amended,
and these standards, and shall be posted in a con-
spicuous place in a public area within the facility.
The issuance of a license does not guarantee ade-
quacy of individual care, treatment, personal safety,
fire safety or the well-being of any occupant of a fa-
cility. A license is not assignable or transferable and
is subject to revocation by the Department for failure
to comply with the laws and regulations of the State
of South Carolina.
_ Effective Date and Term of License. A license shall
be effective for a 12-month period following the date
of issue and shall expire one year following such
date; however, a facility that has not been inspected
during that year may continue to operate under its
existing license until an inspection has occurred.
. Separate Licenses. Separate licenses are required for
facilities not maintained on the same premises.
_ Licensing Fees. The initial and annual license fee
shall be $500.00 for each licensed facility. Such fee
A-76
shall be made payable to the Department. Fees are
non-refundable.
. Inspections. Each facility shall be inspected prior to
initial licensure and at least annually thereafter by
authorized representatives of the Department.
1. All licensed facilities are subject to inspection at
any time.
2. 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 in-
spections or investigations. (II)
. Initial License. A new facility, or one that has not
been continuously licensed under these or prior stan-
dards, shall not provide care to patients until it has
been issued an initial license. When it is determined
that the facility is in compliance with the require-
meuts of these standards, and a properly completed
application and licensing fee have been received by
the Department, a license shall be issued. Chapter 9
of this regulation sets forth the prerequisites for initial
licensure. (I)
. License Renewal. Applicants for an annual license
renewal shall file an application with the Department,
pay a license fee, and undergo a licensing inspection.
Noncompliance. When noncompliance(s) with the
licensing standards exists, the applicant or licensee
shall be notified by the Department of the violation(s)
and required to provide information as to how and
A-77
when each violation will be corrected and how future
occurrences may be prevented.
J. Facility Name. No proposed abortion clinic shall be
named, nor may any existing abortion clinic have its
name changed to, the same or similar name as any
other abortion clinic licensed in the State. If it is part
of a “chain operation” it shall then have the geo-
graphic area in which it is located as part of its name.
K. Change of License. A facility shall request issuance
of an amended license by application to the Depart-
ment prior to any of the following circumstances:
1. Change of ownership by purchase or lease;
2. Change of facility’s name or address.
L. Exceptions to Licensing Standards. The Department
may make exception(s) to these standards where it is
determined that the health and welfare of the commu-
nity require the services of the facility and that the
exception(s), as granted, will have no significant ad-
verse impact on the health, safety, or welfare of the
facility’s patients.
SECTION 103. Penalties
When it determines that a facility is in violation of any
statutory provision, rule or regulation relating to the opera-
tion or maintenance of such facility, the Department, upon
proper notice, may deny, suspend, or revoke licenses, or as-
sess a monetary penalty. Under such conditions, the follow-
ing shall apply:
A-78
A. Class I violations are those that the Department de-
termines to present an imminent danger to the health,
safety, or welfare of the patients of the facility or a
substantial probability that death or serious physical
harm could result therefrom. A physical condition or
one or more practices, means, methods or operations
in use in a facility may constitute such a violation.
The condition or practice constituting a Class I viola-
tion shall be abated or eliminated immediately unless
a fixed period of time, as stipulated by the Depart-
ment, is required for correction. Each day such vio-
lation shall exist after expiration of said time shall be
considered a subsequent violation.
B. Class II violations are those, other than Class I viola-
tions, that the Department determines to have a direct
or immediate relationship to the health, safety or
well-being of the facility’s patients. The citation of a
Class II violation shall specify the time within which
the violation is required to be corrected. Each day
such violation shall exist after expiration of said time
shall be considered a subsequent violation.
C. 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 De-
partment. The citation of a Class III violation shall
specify the time within which the violation is required
to be corrected. Each day such violation shall exist
after expiration of said time shall be considered a
subsequent violation.
D. Class I and II violations are indicated by notation af-
ter each applicable section, i.e., (I) or (II). Violations
of sections that are not annotated in that manner de-
note Class III violations.
A-79
E. In arriving at a decision to penalize a facility, the De-
partment will consider the following factors: specific
conditions and their impact or potential impact on
health, safety or well-being; efforts by the facility to
correct; overall conditions; history of compliance; any
other pertinent conditions that may be applicable to
current statutes and regulations.
F. When a decision is made to assess monetary penal-
ties, the following schedule will be used as a guide to
determine the dollar amount:
Frequency of
| violation of
4 standard within
i a 24-month
period: MONETARY PENALTY RANGES
Frequency Class I Class Il Class Il
4 Ist $ 200-1000 | $ 100-500 $ 0
4 2nd 500-2000 | 200-1000 | 100-500
4 3rd 1000-5000 | 500-2000 | 200-1000
4th 5000 1000 — 5000 | 500-2000
5th 5000 5000 1000 — 5000
6th 5000 5000 5000
G. Any facility that is dissatisfied with Department deci-
sions may request a hearing pursuant to the Adminis-
trative Procedures Act.
A-80
CHAPTER 2 - ADMINISTRATION AND
MANAGEMENT
SECTION 201. Licensee (II)
A. The licensee of each facility has the ultimate respon-
sibility for the overall operation of the facility. Every
facility shall be organized, equipped, staffed and ad-
ministered to provide adequate care for each person
admitted.
B. Policies and procedures for operation of the facility
shall be formulated and reviewed annually by the l-
censee of the facility. They shall include but not be
limited to:
1.
Purpose of the facility, to include scope and qual-
ity of services;
Ensuring compliance with all relevant federal,
state, and local laws that govern operations of the
facility;
Personnel policies and procedures, to include in-
service training requirements;
The person to whom responsibility for operation
and maintenance of the facility is delegated and
methods established by the licensee for holding
such individual responsible;
Provision for annual review and evaluation of the
facility’s policies, procedures, management and
operation;
9,
A-81
Provision for a facility-wide quality improvement
program to evaluate patient care. The program
shall be ongoing, have statistical summaries, and
have a written plan of implementation.
Patient rights and grievance procedures;
Functional safety and maintenance policies and
procedures;
Incident reporting;
10. Consent must be informed, shall be obtained prior
to the procedure, and shall include evidence of an
explanation by a physician or allied health profes-
sional of the services offered and potential risks.
Documentation of the informed consent must be
filed in the patient’s record.
SECTION 202. Administrator (II)
An administrator shall be selected by the licensee and
shall have the ability and authority to manage and administer
the facility. Any change in the position of the administrator
shall be reported immediately by the licensee to the Depart-
ment in writing. An individual shall be appointed in writing
to act in the absence of the administrator.
SECTION 203. Administrative Records
The following administrative documents and references shall
be on file in the facility:
A. Current policies and procedures concerning the op-
eration of the facility; (II)
A-82
B. Current memorandums of agreement and credential-
ing documentation.
C. Acurrent copy of these regulations;
D. Annual elevator safety inspections, if applicable;
E. Annual heating, ventilation, and air conditioning in-
spection report.
SECTION 204. Personnel (I)
Each facility shall have a staff that is adequately trained and
capable of providing appropriate service and supervision to
the patients.
A. The licensee shall obtain written applications for em-
ployment from ail employees. The licensee shall ob-
tain and verify information on the application as to
education, training, experience, appropriate licensure,
if applicable, and health and personal background of
each employee.
B. Prior to performing job duties, all employees, to in-
clude volunteers who have direct patient contact
within the clinic, shall have tuberculin skin testing
conducted unless a previously positive reaction is
documented in millimeters. The intradermal (Man-
toux) method, using five tuberculin units of stabilized
purified protein derivative (PPD) is to be used. For
employees/volunteers who have no documentation of
a negative PPD result during the preceding 12
months, then the two-step procedure (one PPD test
with negative result followed one to three weeks later
by another PPD test) is required to establish a reliable
baseline. If employees/volunteers have complete
saiiaiiadadalei
A-83
documentation of a negative PPD during the preced-
ing 12 months (may be a single PPD or a two-step
PPD), then a single PPD is acceptable to establish the
baseline for current employment.
1.
Persons with negative tuberculin skin tests who
have direct contact with patients shall have an an-
nual tuberculin skin test.
There-is no need to perform an initial or routine
chest X-ray on employees or volunteers with
negative tuberculin tests who are asymptomatic.
Personnel with a positive reaction to the skin test
shall have no patient contact until certified non-
contagious by a physician.
Employees and volunteers with reactions of
10mm and over to the pre-employment tuberculin
test, those new employees/volunteers who have
previously-documented positive reactions, those
with newly-converted skin tests and those with
symptoms suggestive of TB (e.g., cough, weight
loss, night sweats, fever, etc.), shall be given a
chest X-ray to determine whether TB disease is
present. If TB disease is diagnosed, appropriate
treatment shall be given and contacts examined.
Personnel who are known or suspected to have
TB shall be required to be evaluated by a physi-
cian and will not be allowed to return to work un-
til they have been certified non-contagious by the
physician.
Preventive treatment of personnel with new posi-
tive reactions is essential, and shall be considered
A-84
for all infected employees/volunteers who have
patient contact, unless specifically contraindi-
cated. Routine annual chest X-rays of persons
with positive reactions do not prevent TB and
therefore are not a substitute for preventive treat-
ment nor are required.
a. Employees and volunteers who complete
treatment, either for disease or infection, may
be exempt from further routine chest radio-
graphic screening unless they have symptoms
of TB.
b. Positive reactors who are unable or unwilling
to take preventive treatment need not receive
an annual chest X-ray. These individuals
must be informed of their lifelong risk of de-
veloping and transmitting TB to individuals in
the institution and in the community. They
shall be informed of symptoms which suggest
the onset of TB, and the procedure to follow
should such symptoms develop.
. Post-exposure skin tests should be provided for
tuberculin negative employees/volunteers within
12 weeks after termination of contact for any sus-
pected exposure to a documented case of pulmo-
nary TB.
. A person shall be designated in writing at each
facility to coordinate TB screening of personnel
and any other TB control activities.
C. All professional and allied health professional staff
members shall be currently certified with American
Red Cross or American Heart Association CPR and
A-85
capable of recognizing symptoms of distress. A pro-
fessional or allied health professional staff member
who 1s legally qualified to perform advanced cardiac
life support must be present while patients are under-
going abortion procedures/ recovery in the facility.
(1)
. No employee or volunteer of the facility, while af-
flicted with any infected wounds, boils, sores, or an
acute respiratory infection, or any other contagious
disease or illness, shall work in any capacity in which
there is a likelihood of such person transmitting dis-
ease to other individuals.
. Each facility shall have and execute a written orienta-
tion program to familiarize each new staff member
with the facility and its policies and procedures, to in-
clude, as a minimum, fire safety and other safety
measures, medical emergencies, and infection control.
. Inservice training programs shall be planned and pro-
vided for all employees and volunteers to insure and
maintain their understanding of their duties and re-
sponsibilities. Records shall be maintained to reflect
program content and individual attendance. The fol-
lowing training shall be provided at least annually:
1. Infection control, to include as a minimum, uni-
versal precautions against blood-borne diseases,
general sanitation, personal hygiene such as
handwashing, use of masks and gloves, and in-
struction to staff if there is a likelihood of trans-
mitting a disease to patients or other staff mem-
bers;
4.
A-86
Fire protection, to include evacuating patients,
proper use of fire extinguishers, and procedures
for reporting fires:
Confidentiality of patient information and rec-
ords, and protecting patient rights;
Licensing regulations.
G. Job Descriptions.
:
Written job descriptions that adequately describe
the duties of every position shall be maintained.
Each job description shall include: position title,
authority, specific responsibilities and minimum
qualifications.
Job descriptions shall be reviewed at least annu-
ally, kept current and given to each employee and
volunteer when assigned to the position and when
revised.
H. A personnel file shall be maintained for each em-
ployee and for each volunteer. The records shall be
completely and accurately documented, readily avail-
able, and systematically organized to facilitate the
compilation and retrieval of information. The file
shall contain a current job description that reflects the
individual’s responsibilities and work assignments,
and documentation of the person’s orientation, in-
service education, appropriate licensure, if applicable,
and TB skin testing.
A-87
SECTION 205. Clinical Staff (II)
A. Physicians, nurses, and allied health professionals
shall constitute the clinical staff.
B. The clinical staff shall meet at least quarterly to re-
view and analyze their clinical experiences; minutes
shall be maintained of such meetings.
C. Physicians. (I)
a
Abortions shall be performed only by physicians
who are licensed to practice medicine in this State
and who are properly qualified by training and
experience to perform pregnancy termination pro-
cedures. ;
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.
A physician must remain on the premises until all
patients are stable, and are ready for discharge. A
physician must sign the discharge order and be
readily accessible and available until the last pa-
tient has been discharged.
D. Nursing.
L
Nursing care shall be under the supervision of a
registered nurse currently licensed in this State.
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2. A registered nurse shall be on duty to provide or
supervise all nursing care of patients in prepara-
tion, during the termination procedure, the recov-
ery period and until discharge by the attending
physician.
3. Licensed practical nurses, working under appro-
priate supervision and direction of a registered
nurse, may be employed as components of the
nursing staff.
E. Allied health professionals, working under appropri-
ate direction and supervision, may be employed to
work only within areas where their competency has
been established.
F. If ultrasonography is conducted in the clinic, the pro-
cedure shall be conducted by a physician or by an ul-
trasound technician who shall have documented evi-
dence of completion of a training course in
ultrasonography.
SECTION 206. Consent of the Patient (I)
A physician shall not perform an abortion without first
obtaining a signed and dated consent of the pregnant woman
pursuant to the provisions of Section 44-41-30 of the SC
Code of Laws, 1976, as amended.
SECTION 207. Abortion Performed Upon Minors (I)
No person may perform an abortion upon a minor unless
consent is obtained pursuant to the provisions of Section 44-
41-31 of the SC Code of Laws, 1976, as amended.
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SECTION 208. Dissemination of Information (1)
Clinics must comply with the Woman’s Right to Know
Act, Section 44-41-310 et seq., of the SC Code of Laws,
1976, as amended, and maintain an adequate supply of cur-
rent printed material from the Department which has not
been altered in content.
SECTION 209. Patients’ Rights (I)
A. The facility shall have written policies and procedures
to assure the individual patient the right to dignity,
privacy, safety, and to register complaints with the
Department. These patients’ rights shall be approved
by the licensee.
B. Each facility shall display in a conspicuous place a
copy of the patients’ rights. In addition, a copy
signed by the patient shall be included in the medical
record.
CHAPTER 3 - PATIENT CARE
SECTION 301. Policies and Procedures (II)
Abortion clinics shall not serve patients whose needs ex-
ceed the resources and/or capabilities of the clinic. The fa-
cility shall formulate and adhere to written patient care poli-
cies and procedures designed to ensure professional and safe
care for patients, to include but not limited to:
A. Admission criteria;
B. Physician and nurse responsibilities for the services
offered;
A-90
C. Specific details regarding the pre-operative proce-
dures performed, to include:
o
l.
y &
History and physical examination, to include veri-
fication of pregnancy, estimation of gestational
age, identification of any preexisting conditions or
complications;
Special examinations, lab procedures, and/or con-
sultations required, to include ultrasonography re-
quired when gestational age is clinically estimated
to be equal to or more than 14 weeks from the
first day of the last menstrual period as estab-
lished by the physician's performance of a biman-
ual physical examination. Policies and proce-
dures should also indicate that ultrasound is
recommended when gestational age is equal to or
more than 12 weeks from the first day of the last
menstrual period as established by the perform-
ance of a bimanual physical examination or if the
physical examination and clinical evidence is in-
conclusive as to the gestational age.
The actual abortion procedure, to include the use of:
IV’s;
Fluids;
Analgesia/anesthesia. General anesthesia shall be
administered only by a certified registered nurse
anesthetist, anesthesiologist, or dentist anesthetist
or physician anesthetist.
Tissue examination/disposal.
A-91
E. Post-procedure care/recovery room procedures to in-
clude emergency care;
F. Provisions for the education of patient, family and
others, as appropriate in pre and post-procedure care;
G. Plans for follow-up of patient after discharge from the
facility, to include arrangements for post-operative
visit, and specific instructions in case of emergency;
H. Management and appropriate referral of high-risk
conditions;
I. Transfer of patients who, during the course of preg-
nancy termination are determined to need care be-
yond that of the facility;
: J. Infection control and sanitation procedures to include
duties and responsibilities of the infection control
committee that shall include the development and im-
plementation of specific patient care and administra-
tive policies aimed at investigating, controlling and
preventing infections in the facility;
FGENESH SB EAT
K. Registration of fetal death or death certificates, when
applicable.
SECTION 302. Limitation of Services Offered by
Abortion Clinics (1)
AINE ALIA DIM VEEP KL DH
A. Abortions performed in abortion clinics shall be per-
formed only on patients who are within 18 weeks
from the first day of their last menstrual period.
Those beyond 18 weeks shall be performed in a hos-
pital. A licensed ambulatory surgical facility that is
also licensed as an abortion clinic may perform abor-
A-92
tions on patients who are up to 26 weeks after the first
day of their last menstrual period.
B. Clinics performing abortions beyond 14 weeks from
the first day of the last menstrual period must meet
the requirements of Section 309.
SECTION 303. Pharmaceutical Services (ID)
Pharmaceutical services shall be provided in accordance with
accepted professional practice and federal, state and local
statutes and regulations.
A. Emergency Drugs:
1. Emergency Kit or Emergency Drugs. Each facil-
ity shall maintain an emergency kit or stock sup-
ply of drugs and medicines for the use of the phy-
sician in treating the emergency needs of patients.
This kit or medicine shall be stored in such a
manner as to prohibit its access by unauthorized
personnel. A listing of contents by drawer or
shelf shall be placed on the cabinet or emergency
cart to allow quick retrieval. Contents shall corre-
spond with the inventory list. Drugs and equip-
ment must be available within the facility to treat,
as a minimum, the following conditions: (I)
a. Cardiac arrest;
b. Seizure;
c. Asthmatic attack;
d. Allergic reaction;
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A-93
e. Narcotic toxicity;
f. Hypovolemic shock;
g. Vasovagal shock.
2. Drug Reference Sources. [Each facility shall
maintain reference sources for identifying and de-
scribing drugs and medicines.
B. Administering Drugs and Medicines. Drugs and
medicines shall not be administered to individual pa-
tients or to anyone within or outside the facility ex-
cept by those authorized by law under orders of a
physician duly licensed to prescribe drugs. Such or-
ders shall be in writing and signed personally by the
physician who prescribes the drug or medicine.
. Medicine Storage. Medicines and drugs maintained
in the
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