# Appendix — Greenville Women's Clinic v. Commissioner, South Carolina Department of Health and Environmental Control > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1183%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 2003 - **Citation:** 538 U.S. 1008 ## Text » e “eur, U.S. 10.23 2 35 FEB 12 2003 quan wea In The Supreme Court of the Gnited States ¢ 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. ¢ 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 ¢ 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 RS RRL AO WEN LOA, RAR OOD LY OPTI lett Ol BNI ae 9 BB Aichi a = women! 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 ahs paca bia 2 simone tiesk » i * laa SORE KA EM SSO NN A IO GAA lh eS Reo Reeds ccc AWS. al leo Scena as Sea RAN eI io A NE Aaa ns ti Abn DUE ANAS pale tesa i 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. Sever [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1183%3A2. Public record. Not legal advice.