Greenville Women's v. Bryant , 222 F.3d 157 ( 2000 )

Volume 1 of 2
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
GREENVILLE WOMEN'S CLINIC;
CHARLESTON WOMEN'S MEDICAL
CLINIC, INCORPORATED; WILLIAM
LYNN, MD, on behalf of themselves
and their patients seeking abortions,
Plaintiffs-Appellees,
v.
DOUGLAS E. BRYANT, in his official
No. 99-1319
capacity as Commissioner of South
Carolina Department of Health and
Environmental Control; CHARLES M.
CONDON, in his official capacity as
Attorney General of the State of
South Carolina,
Defendants-Appellants,
GOVERNOR OF SOUTH CAROLINA,
Defendant.
GREENVILLE WOMEN'S CLINIC;
CHARLESTON WOMEN'S MEDICAL
CLINIC, INCORPORATED; WILLIAM
LYNN, MD, on behalf of themselves
No. 99-1710
and their patients seeking abortions,
Plaintiffs-Appellees,
v.
GOVERNOR OF SOUTH CAROLINA,
Defendant-Appellant,
and
DOUGLAS E. BRYANT, in his official
capacity as Commissioner of South
Carolina Department of Health and
Environmental Control; CHARLES M.
CONDON, in his official capacity as
Attorney General of the State of
South Carolina,
Defendants.
GREENVILLE WOMEN'S CLINIC;
CHARLESTON WOMEN'S MEDICAL
CLINIC, INCORPORATED; WILLIAM
LYNN, MD, on behalf of themselves
and their patients seeking abortions,
Plaintiffs-Appellees,
v.
DOUGLAS E. BRYANT, in his official
No. 99-1725
capacity as Commissioner of South
Carolina Department of Health and
Environmental Control; CHARLES M.
CONDON, in his official capacity as
Attorney General of the State of
South Carolina,
Defendants-Appellants,
GOVERNOR OF SOUTH CAROLINA,
Defendant.
2
Appeals from the United States District Court
for the District of South Carolina, at Greenville.
William B. Traxler, Jr., District Judge.
(CA-96-1898-6-21)
Argued: January 27, 2000
Decided: August 15, 2000
Before NIEMEYER, Circuit Judge,
HAMILTON, Senior Circuit Judge, and
Frederic N. SMALKIN, United States District Judge
for the District of Maryland, sitting by designation.
_________________________________________________________________
Reversed by published opinion. Judge Niemeyer wrote the opinion,
in which Judge Smalkin joined. Senior Judge Hamilton wrote a dis-
senting opinion.
_________________________________________________________________
COUNSEL
ARGUED: Floyd Matlock Elliott, HAYNSWORTH, MARION,
MCKAY & GUERARD, L.L.P., Greenville, South Carolina, for
Appellants. Bonnie Scott Jones, THE CENTER FOR REPRODUC-
TIVE LAW & POLICY, New York, New York, for Appellees. ON
BRIEF: George Dewey Oxner, Jr., Boyd Benjamin Nicholson, Jr.,
HAYNSWORTH, MARION, MCKAY & GUERARD, L.L.P.,
Greenville, South Carolina; Nancy Staats Layman, Legal Division,
DEPARTMENT OF HEALTH AND ENVIRONMENTAL CON-
TROL, Columbia, South Carolina; Charles Molony Condon, James
Emory Smith, Jr., OFFICE OF THE ATTORNEY GENERAL,
Columbia, South Carolina; Charles E. Carpenter, Jr., Donald V. Rich-
ardson, III, S. Elizabeth Brosnan, RICHARDSON, PLOWDEN,
CARPENTER & ROBINSON, P.A., Columbia, South Carolina, for
Appellants. Randall Hiller, Greenville, South Carolina, for Appellees.
_________________________________________________________________
3
OPINION
NIEMEYER, Circuit Judge:
This case presents the important question of whether South Caroli-
na's regulation establishing standards for licensing abortion clinics --
Regulation 61-12 of the South Carolina Department of Health and
Environmental Control, S.C. Code Ann. Regs. 61-12 (eff. June 28,
1996) -- violates the Due Process Clause and the Equal Protection
Clause of the Fourteenth Amendment by placing an undue burden on
women's decisions to seek abortions and by distinguishing between
clinics that perform a specified number of abortions and those that do
not. Two abortion clinics and an abortion provider filed this action,
on behalf of themselves and their patients, facially challenging the
constitutionality of the Regulation. The district court concluded that
the Regulation violated both of these clauses of the Fourteenth
Amendment, declared the Regulation "invalid," and enjoined its
enforcement.
As amplified herein, we reverse this decision and uphold the con-
stitutionality of Regulation 61-12 because (1) the Regulation serves
a valid state interest and is little more than a codification of national
medical- and abortion-association recommendations designed to
ensure the health and appropriate care of women seeking abortions;
(2) the Regulation does not "strike at the [abortion] right itself,"
Planned Parenthood v. Casey, 505 U.S. 833, 874 (1992) (joint opin-
ion of O'Connor, Kennedy, and Souter, JJ.); (3) the increased costs
of abortions caused by implementation of the Regulation, while spec-
ulative, are even yet modest and have not been shown to burden the
ability of a woman to make the decision to have an abortion; and (4)
abortion clinics may rationally be regulated as a class while other
clinics or medical practices are not.
I
Prior to 1995, South Carolina regulated clinics at which second-
trimester abortions were performed. See S.C. Code Ann. §§ 44-41-
20(b), -70(b) (Law. Co-op. 1985); S.C. Code Ann. Regs. 61-12
(1982) (entitled "Minimum Standards for Licensing Clinics Perform-
ing Abortions"). The regulation under this earlier statute contained
4
chapters covering abortion-clinic management, laboratory facilities
and procedures, medical records and reports, clinic design and con-
struction, and patient-care areas. See S.C. Code Ann. Regs. 61-12
(1982).
In 1995, the South Carolina legislature amended its statute to
require any "facility in which any second trimester or five or more
first trimester abortions are performed in a month" to be licensed as
an abortion clinic by the Department of Health and Environmental
Control ("DHEC"). S.C. Code Ann. §§ 44-41-10(C), -75(A) (West
Supp. 1999). In addition, it directed the DHEC to
promulgate regulations concerning sanitation, housekeeping,
maintenance, staff qualifications, emergency equipment and
procedures to provide emergency care, medical records and
reports, laboratory, procedure and recovery rooms, physical
plant, quality assurance, infection control, and information
on and access to patient follow-up care necessary to carry
out the purposes of this section.
Id. § 44-41-75(B). The DHEC responded by promulgating Regulation
61-12, effective June 28, 1996. See S.C. Code Ann. Regs. 61-12
(West Supp. 1998) (hereinafter "Regulation 61-12" or "the Regula-
tion").
In developing Regulation 61-12, the DHEC built on the preexisting
version of its Regulation 61-12, as well as other DHEC regulations
covering different types of healthcare facilities. The DHEC also con-
sulted various medical standards and guidelines issued by medical-
care organizations, including groups dedicated to protecting abortion
rights. These sources included: (1) Standards for Obstetric-
Gynecologic Services (7th ed. 1995), issued by the American College
of Obstetricians and Gynecologists ("the ACOG"); (2) Manual of
Medical Standards and Guidelines (1994), issued by Planned Parent-
hood, which the manual describes as encouraging affiliates "to
develop abortion services if such a need exists in the community and
resources are available for conducting a safe and effective program";
and (3) Standards for Abortion Care (1988), a set of standards, the
"purpose" of which is "to promote high quality care for all women
seeking abortions" and "serve as a useful resource for local and state
5
agencies charged with safeguarding the public's health," issued by the
National Abortion Federation, which the standards describe as "an
organization specifically committed to the provision and accessibility
of high quality abortion services for all women." The DHEC also
reviewed abortion regulations from other states and referenced the
Guidelines for Construction and Equipment of Hospital and Medical
Facilities (1992-93), a document issued by the American Institute of
Architects, which purports to provide "model standards" for "con-
structing and equipping new medical facility projects" and for "reno-
vation or replacement work."
In addition to consulting established sources, the DHEC conducted
public hearings, during which it received suggestions from the abor-
tion clinics that are parties to this case, incorporating some of them
in new Regulation 61-12. The new Regulation, entitled "Standards for
Licensing Abortion Clinics," S.C. Code Ann. Regs. 61-12 (West
Supp. 1998), contains ten parts which address a range of medical,
safety, and administrative requirements:
Part I, "Definitions and Requirements for Licensure," defines an
abortion clinic as "[a]ny facility, other than a hospital . . . in which
any second trimester or five or more first-trimester abortions per
month are performed." Id. § 101(B). It makes the operation of an
abortion clinic without a license illegal. See id. § 102(A). It provides
for periodic inspections, including at least one annually, and grants
inspectors the authority to copy all documents required in the course
of inspections. See id. § 102(F). And it authorizes sanctions for non-
compliance with the Regulation in the form of monetary penalties, as
well as denial, suspension, or revocation of the license. See id. § 103.
Part II, "Administration and Management," requires every facility
to formulate and review annually its policies and procedures. See id.
§ 201(B). It requires that each clinic maintain various administrative
documents on file. See id. § 203. Every employee is required to com-
plete in-service training and undergo a tuberculin skin test, see id.
§ 204(B), (F), and any employee diagnosed with a contagious disease
is prohibited from performing certain work at the clinic, see id.
§ 204(D). It requires that every abortion be performed by a physician
who is licensed by the State and requires that every clinic be affiliated
with a physician who has admitting privileges at a local hospital. See
6
id. § 205(C). A registered nurse must supervise all nursing care, and
an ultrasound test may be conducted only by a person who has com-
pleted a course in ultrasonography. See id.§ 205(D), (F). Each facility
must display a copy of a statement specifying patients' rights, includ-
ing the rights to dignity, privacy, and safety. See id. § 209.
Part III, "Patient Care," provides that each facility must have cer-
tain written patient-care policies and procedures to ensure profes-
sional and safe care and that no clinic may serve patients whose needs
exceed the clinic's resources and capabilities. See id. § 301. Specified
drugs and tools must be present, see id.§ 303, and laboratory services
must be available, either on site or through an arrangement with a lab-
oratory, see id. § 304(A). A number of laboratory tests must be per-
formed, including a urinalysis and testing for sexually transmitted
diseases. See id. § 304(B), (C), (D). Staff at abortion clinics must
have admitting privileges at a local hospital or have documented
arrangements for emergency transfer to a hospital. See id. § 305(A).
And facilities that perform abortions beyond the 14th week of preg-
nancy must meet additional requirements. See id . § 309.
Part IV, "Medical Records and Reports," requires that every abor-
tion clinic maintain and retain for ten years specified categories of
information and requires that the documents be treated as confiden-
tial. See id. § 401, 402. Abortion clinics must report to the DHEC all
abortions performed, any fetal deaths meeting certain criteria, and any
accidents or incidents. See id. § 403.
Part V, "Functional Safety and Maintenance," requires written
safety policies and procedures and a disaster-preparedness plan and
sets standards for maintenance, requiring that facilities be kept in
good repair. See id. §§ 501-503.
Part VI, "Infection Control and Sanitation," requires certain daily
sterilization procedures, see id. § 602, mandates proper laundering of
linen and washable goods, see id. § 603, and requires the facility to
be kept neat, clean, and free of insects, see id . § 604. Garbage and
waste are required to be disposed of in a manner designed to prevent
transmission of disease. See id. § 605. Outside areas must be main-
tained so as to minimize fire hazards, havens for insects and rodents,
7
and unsafe conditions from accumulations of water, ice, and snow.
See id. § 606.
Part VII, "Fire Protection and Prevention," requires clinics to have
particular fire-fighting equipment and an evacuation plan and to con-
duct fire drills and inspections. See id.§ 701.
Part VIII, "Design and Construction," requires that each abortion
clinic have facilities for the care of each patient that meet applicable
design and construction laws. See id. §§ 801, 802. New buildings or
additions must satisfy building code requirements. See id. §§ 803,
804. Each facility must provide an adequate number of examination
or procedure rooms, and each procedure room must have a suitable
table and other equipment. See id. § 807(A), (B). Recovery areas must
meet particular requirements and there must be a room for temporary
storage of waste, as well as an area to accommodate sterilization pro-
cedures. See id. § 807(E), (F).
Part IX, "Prerequisites for Initial Licensure," sets forth the neces-
sary documentation for obtaining a license from the DHEC and the
certification that must be acquired for various physical items.
Finally, Part X states that conditions which arise and have not pre-
viously been addressed in the Regulation must be managed in accor-
dance with the best practices as interpreted by the DHEC.
On June 27, 1996, one day before Regulation 61-12 was to take
effect, the Greenville Women's Clinic, the Charleston Women's Med-
ical Clinic, Inc., and Dr. William Lynn (collectively, the "abortion
clinics") brought this action seeking a declaratory judgment that Reg-
ulation 61-12 is unconstitutional on its face because, among other
things, it would violate their due process and equal protection rights,
as well as those of their patients. They also sought an order enjoining
enforcement of the Regulation and requesting attorneys fees and costs
pursuant to 42 U.S.C. § 1988. The district court issued a temporary
restraining order on June 19, 1996, which, by consent of the parties,
was converted to a preliminary injunction. Finally, on February 5,
1999, the district court declared the Regulation invalid in its entirety.
8
The Greenville Women's Clinic, which has operated in Greenville,
South Carolina, since 1978, has two licensed physicians who perform
a combined average of more than 2,700 abortions per year. The physi-
cians at the clinic testified that even prior to the promulgation of Reg-
ulation 61-12, their clinic operated in substantial compliance with its
requirements. They estimated that the additional cost of full compli-
ance would be $22.68 per abortion. The district court found that, prior
to the Regulation's promulgation, the cost of an abortion was between
$325 and $480 if the abortion was not complicated and was per-
formed during the first trimester. The court found that the additional
cost of full compliance for Greenville Women's Clinic would be in
the range of $23-$32 per abortion.
The Charleston Women's Medical Clinic, Inc., which has operated
in Charleston, South Carolina, for about 28 years, performs, on aver-
age, more than 2,400 abortions per year. That clinic is operated by a
licensed physician and a licensed practical nurse. The district court
found that compliance with Regulation 61-12 by the Charleston
Women's Medical Clinic would cost between $36 and $75 per abor-
tion.
Dr. William Lynn, who is a licensed physician, has conducted his
practice since 1980 from two locations -- in Beaufort, South Carolina
(approximately 70 miles southwest of Charleston) and in Greenville,
South Carolina. Dr. Lynn performs, on average, more than 900 abor-
tions each year at the two sites. He testified that Regulation 61-12
would require him to undertake costly modifications to his Beaufort
facility, and the district court found that his cost per abortion would
increase by an amount between $116 and $368. The district court also
concluded that the increased costs for Dr. Lynn's Beaufort facility
would "likely force [Dr. Lynn] to cease performing abortions in his
Beaufort office." Greenville Women's Clinic v. Bryant, 66 F. Supp.
2d 691, 717 (D.S.C. 1999).
There was no direct evidence about how many other abortion clin-
ics in South Carolina would be affected by the Regulation or about
the extent of any such impact. No woman who wanted an abortion or
who claimed to be threatened by Regulation 61-12 was made a party
to the action or testified before the district court, and no survey evi-
dence of women in South Carolina was presented to demonstrate the
9
likely effect that Regulation 61-12 would have on their decisions to
obtain an abortion.
Following a bench trial, the district court concluded that the Regu-
lation "serve[s] no legitimate state interest . . . [g]iven the lack of evi-
dence that the regulation will operate to improve the health care
currently being received in this state." Greenville Women's Clinic, 66
F. Supp. 2d at 735. It continued that even if it did serve a valid pur-
pose, the Regulation "places a substantial obstacle in the path of
women seeking first trimester abortions and, thereby, imposes an
undue burden on the woman's fundamental right to choose to undergo
the procedure." Id. The undue burden, the court found, resulted from
increased costs, delays in the ability to obtain abortions, decreased
availability of abortion clinics, increased distances to travel to clinics,
unlimited inspections of clinics, and compromises to patient confiden-
tiality. See id. at 735-36. Accordingly, the court held that Regulation
61-12 violated women's Fourteenth Amendment due process rights.
See id. at 736. The district court also ruled that the Regulation vio-
lated the abortion clinics' equal protection rights under either a strict-
scrutiny or a rational-basis standard of review because the Regulation
"singles out physicians and clinics where abortions are performed reg-
ularly . . . and imposes upon them requirements which are not
imposed upon comparable procedures and not even upon all physi-
cians who perform first trimester abortions." Id. at 742. Finally, the
district court, acting under 42 U.S.C. § 1988, awarded the abortion
clinics attorneys fees and costs in the amount of $324,040.
South Carolina appeals from the district court's judgment declaring
Regulation 61-12 unconstitutional and enjoining its enforcement and
from the award of attorneys fees.
II
South Carolina contends first that the district court's due process
analysis is supported by neither the record nor the law. It maintains
that Regulation 61-12, which is based on national healthcare stan-
dards for abortions, is rationally related to protecting the health of
women seeking abortions, "even if such regulations might have the
incidental [e]ffect of causing the price to obtain an abortion to
increase." South Carolina notes that the abortion clinics and their
10
experts agree as to the appropriateness of the national standards incor-
porated in the Regulation, and the Greenville Women's Clinic, the
largest of the plaintiffs, admitted that it was already in substantial
compliance with virtually all of the Regulation's requirements. The
State argues that to the extent any clinic does not comply with Regu-
lation 61-12, compliance will improve the quality of medical care for
women seeking abortions. South Carolina also argues that the evi-
dence does not support the conclusion that the increased cost of an
abortion would impose a substantial obstacle for women in South
Carolina seeking abortions.
The abortion clinics respond that the Regulation does not further
a valid state interest because (1) it creates costly and unnecessary
requirements which are more likely to harm than to protect the health
of abortion patients and (2) the DHEC's drafting process indicates
that the DHEC was not concerned with protecting the health of such
women. The clinics acknowledge that the DHEC may have relied on
standards and guidelines of national medical groups, but they argue
that these are just that -- standards and guidelines -- and are neither
designed to serve as mandatory directives nor appropriate for that pur-
pose. Finally, the abortion clinics contend that, in any event, Regula-
tion 61-12 imposes an undue burden on women seeking abortions in
South Carolina because it would increase the price of abortions and
force Dr. Lynn to cease performing abortions at his Beaufort facility.
The abortion clinics undertook a heavy burden in bringing a facial
challenge to the constitutionality of Regulation 61-12. Because of the
nature of facial challenges, they could not present the district court
with a concrete factual circumstance -- a particular case or contro-
versy -- to which to apply the Regulation. The clinics therefore must
argue about the Regulation's impact generally and prospectively, the
type of action typically undertaken by legislatures, not courts.
Because a trial on a facial challenge can focus only on arbitrarily
selected hypotheticals to which the Regulation might apply, a court
is required to speculate about the Regulation's overall effect.
In this case, for example, the district court was not given -- and
could not be given -- any data from South Carolina patients about the
impact that particular costs had on their decision to seek an abortion.
It was given only estimates by "experts." Accordingly, the impact of
11
the Regulation in any given situation could only have been antici-
pated. Such anticipation, however, is generally not an appropriate
basis on which to strike down statutes and regulations. See Bowen v.
Kendrick, 487 U.S. 589, 612-13 (1988) (noting that "[i]t has not been
the Court's practice" to strike down a statute on a facial challenge "in
anticipation" of particular circumstances, even if the circumstances
would amount to a "likelihood").
Because of the conceptual difficulties that attend to ruling on the
constitutionality of a statute in the abstract, the Supreme Court has
held that "[a] facial challenge to a legislative Act is, of course, the
most difficult challenge to mount successfully, since the challenger
must establish that no set of circumstances exists under which the Act
would be valid." United States v. Salerno, 481 U.S. 739, 745 (1987);
see also Rust v. Sullivan, 500 U.S. 173, 183 (1991) (a facial challenge
will fail if an act "can be construed in such a manner that [it] can be
applied to a set of individuals without infringing upon constitutionally
protected rights").
In Planned Parenthood v. Casey, 505 U.S. 833 (1992), the
Supreme Court ruled that a statute regulating abortion was invalid
because "in a large fraction of cases in which [it] is relevant, it will
operate as a substantial obstacle to a woman's choice to undergo an
abortion." Id. at 895 (majority opinion) (emphasis added). Whether
this holding displaced the Salerno standard for facial challenges in
abortion cases has been the subject of considerable debate among the
circuits. Compare, e.g., Planned Parenthood v. Lawall, 180 F.3d
1022, 1025-27 (9th Cir. 1999) (applying Casey standard to facial
challenge to abortion restriction); Women's Med. Prof'l Corp. v.
Voinovich, 130 F.3d 187, 193-96 (6th Cir. 1997) (same); Jane L. v.
Bangerter, 102 F.3d 1112, 1116 (10th Cir. 1996) (same); Planned
Parenthood v. Miller, 63 F.3d 1452, 1456-58 (8th Cir. 1995) (same);
Casey v. Planned Parenthood, 14 F.3d 848, 863 n.21 (3d Cir. 1994)
(same), with Barnes v. Moore, 970 F.2d 12, 14 n.2 (5th Cir. 1992)
(per curiam) ("we do not interpret Casey as having overruled, sub
silentio, longstanding Supreme Court precedent governing challenges
to the facial constitutionality of statutes"); see also Okpalobi v. Fos-
ter, 190 F.3d 337, 354 (5th Cir. 1999) (noting that subsequent Fifth
Circuit decisions were arguably inconsistent with application of the
Salerno standard). This circuit, sitting en banc, acknowledged the
12
uncertainty as to which standard applies but declined to resolve the
issue. See Planned Parenthood v. Camblos, 155 F.3d 352, 358-59 &
n.1 (4th Cir. 1998) (en banc) ("Because we conclude . . . that the
[challenged abortion regulation] is facially constitutional under either
the Salerno or the Casey standard, we need not, and do not, decide
which of these two standards applies in facial challenges to abortion
statutes"). Previously, a panel of this court had stated its agreement
with the Fifth Circuit position in Barnes v. Moore, observing that
until the Supreme Court specifically overrules Salerno in the
abortion-regulation context, "this Court is bound to apply the Salerno
standard as it has been repeatedly applied in the context of other abor-
tion regulations reviewed by the Supreme Court . . . and in the context
of challenges to legislative acts based on other constitutional
grounds." Manning v. Hunt, 119 F.3d 254, 268 n.4 (4th Cir. 1997)
(emphasis added).
While we believe that the observation in Manning was part of the
court's holding because application of Salerno was necessary to the
ruling in that case and not dictum, we add the observation that the
logic of the Salerno test is necessary to show deference to legisla-
tures, particularly in light of the limitation imposed by Article III of
the Constitution that the judiciary act only in cases and controversies.
See U.S. Const. art. III, § 2. As we explain below, when the abortion
clinics are confronted with Salerno's requirement that no set of cir-
cumstances exists under which Regulation 61-12 would be valid, they
fail, if for no other reason, because the impact on the Greenville
Women's Clinic is so modest. Even when we apply a less deferential
standard than that articulated in Salerno, we nevertheless conclude in
this case that the record provides no evidence from which to conclude
that Regulation 61-12 would present a "substantial obstacle" to "a
large fraction" of women in South Carolina who might seek an abor-
tion at a clinic subject to Regulation 61-12. Casey, 505 U.S. at 895
(majority opinion).
The record contains evidence from several abortion providers, only
one of which would be adversely affected in any significant way in
providing abortion services, Dr. Lynn's Beaufort facility. Moreover,
even for women in Beaufort, no evidence suggests that they could not
go to the clinic in Charleston, some 70 miles away. Nor are we pro-
vided with evidence of the impact that Regulation 61-12 would have
13
on other South Carolina abortion clinics. Thus, inherent in our discus-
sion of the impact that Regulation 61-12 would have on women's
abortion rights is the inability to decide a concrete case; we must
speculate about the impact on all relevant women to determine, under
the Casey standard, whether a large fraction would encounter a sub-
stantial obstacle to their choice to seek an abortion, an analysis that
the record simply does not permit. Thus, on the abortion clinics' fail-
ure to present evidence that would satisfy either of the possible stan-
dards, we fall back on the Regulation's presumptive constitutionality.
The principles of the abortion right itself are now well-established.
Beginning in 1973, women were found to have a fundamental right
grounded in the Fourteenth Amendment to end a pregnancy by abort-
ing the life of the fetus. See Roe v. Wade, 410 U.S. 113, 153-56
(1973); see also Maher v. Roe, 432 U.S. 464, 474 (1977). The Court
in Roe stated that the "right of privacy . . . is broad enough to encom-
pass a woman's decision whether or not to terminate her pregnancy."
Roe, 410 U.S. at 153.
Following Roe, which recognized that the abortion-decision right
was not absolute but subject to some regulation by the states, the
Supreme Court decided numerous cases that uncovered difficulties in
applying Roe and created widespread confusion. Accordingly, in
1992, the Court in Casey reexamined Roe and restated the applicable
principles. In Casey, the Court rejected the trimester framework of
Roe and adopted a revised "undue burden" standard to apply to chal-
lenged abortion regulations. Casey, 505 U.S. at 872-74 (joint opinion
of O'Connor, Kennedy, and Souter, JJ.). But it reaffirmed the "essen-
tial holding" of Roe -- that a woman has a constitutional right to
"choose to have an abortion before viability and to obtain it without
undue interference from the State." Id. at 846 (majority opinion). The
scope of this right, however, is framed by the State's "legitimate inter-
ests from the outset of the pregnancy in protecting the health of the
woman and the life of the fetus that may become a child." Id.
Most recently, in Stenberg v. Carhart, 530 U.S. ___, No. 99-830
(U.S. June 28, 2000), the Supreme Court reaffirmed the principles
articulated in the joint opinion in Casey that: (1) a woman has a con-
stitutional right "to choose to terminate her pregnancy" before viabil-
ity of the fetus; (2) any State law that imposes an"undue burden" on
14
the woman's right to choose to terminate her pregnancy before fetal
viability is unconstitutional; and (3) a State may regulate post-
viability abortions "except where [they are] necessary, in appropriate
medical judgment, for the preservation of the life or health of the
mother." 530 U.S. at ___, No. 99-830, slip op. at 2 (internal quotation
marks and citations omitted).
In preserving the right of a woman to choose to have an abortion,
the Court in Casey emphasized that the right is grounded in the liberty
protected by the Fourteenth Amendment -- "[t]he controlling word in
the cases before us is `liberty.'" 505 U.S. at 846 (majority opinion);
see also id. at 871 (joint opinion of O'Connor, Kennedy, and Souter,
JJ.) ("The woman's right to terminate her pregnancy before viability
is . . . a component of liberty"). And the liberty so recognized is
defined as the right of a woman herself-- not her husband, her par-
ent, her doctor, or others -- to make the decision to have an abortion.
Id. at 877 (joint opinion of O'Connor, Kennedy, and Souter, JJ.); see
also Stenberg, 530 U.S. at ___, No. 99-830, slip op. at 27. Only when
the State unduly burdens the ability of a woman to make the abortion
decision "does the power of the State reach into the heart of the lib-
erty protected by the Due Process Clause." Casey, 505 U.S. at 874
(joint opinion of O'Connor, Kennedy, and Souter, JJ.).
Accordingly, to the extent that state regulations interfere with the
woman's status as the ultimate decisionmaker or try to give the deci-
sion to someone other than the woman, the Court has invalidated
them. See Casey, 505 U.S. at 887-98 (majority opinion) (striking
down provision which required a physician performing an abortion on
a married woman to obtain a statement from her indicating that she
had notified her husband); Thornburgh v. American College of Obste-
tricians and Gynecologists, 476 U.S. 747, 767 (1986) (invalidating
reporting requirements that "raise the specter of public exposure and
harassment of women who choose to exercise their personal, intensely
private, right, with their physician, to end their pregnancy"); Bellotti
v. Baird, 443 U.S. 622, 643 (1979) (plurality opinion) (ruling that "if
the State decides to require a pregnant minor to obtain one or both
parents' consent to an abortion, it must also provide an alternative
procedure whereby authorization for the abortion can be obtained"
(footnote omitted)); Planned Parenthood v. Danforth, 428 U.S. 52, 74
(1976) (holding that "the State does not have the constitutional
15
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").
On the other hand, state regulations that do not"reach into the
heart" of the protected liberty do not violate the abortion-decision
right. Casey, 505 U.S. at 874 (joint opinion of O'Connor, Kennedy,
and Souter, JJ.). If a regulation serves a valid purpose -- "one not
designed to strike at the right itself" -- the fact that it also has "the
incidental effect of making it more difficult or more expensive to pro-
cure an abortion cannot be enough to invalidate it." Id. One such valid
purpose is a State's effort to "further the health or safety of a woman
seeking an abortion." Id. at 878. Of course, if such health regulations
are unnecessary and have the "purpose or effect of presenting a sub-
stantial obstacle to a woman seeking an abortion," they will be found
to "impose an undue burden on the right." Id.
In maintaining the distinction between state regulations that tram-
mel the woman's right to choose to have an abortion-- those that
impose an undue burden -- and those that merely have an incidental
effect on the woman's decision, the Court has upheld, both before
Casey and in Casey, various regulations, the costs and effects of
which, while amounting to interference and intrusion, did not reach
the core of the protected liberty. See, e.g., Casey, 505 U.S. at 886
(majority opinion) (upholding 24-hour waiting period although it
would require a woman to make two visits to a doctor and increase
the woman's exposure to abortion protestors); id . at 900-01 (uphold-
ing a recordkeeping and reporting provision that would increase the
cost of some abortions); Webster v. Reproductive Health Services,
492 U.S. 490, 530 (1989) (O'Connor, J., concurring) (regulation
requiring medical tests is constitutional where"the cost of examina-
tions and tests that could usefully and prudently be performed . . .
would only marginally, if at all, increase the cost of an abortion");
Planned Parenthood v. Ashcroft, 462 U.S. 476, 490, 505 (1983)
(upholding requirement for a pathology report that would impose a
"small cost"). Only when the increased cost of abortion is prohibitive,
essentially depriving women of the choice to have an abortion, has the
Court invalidated regulations because they impose financial burdens.
See Akron v. Akron Ctr. for Reproductive Health, 462 U.S. 416, 434-
16
39 (1983) (holding unconstitutional a hospitalization requirement for
certain abortions that more than doubled the cost of such abortions).
In the case before us, the South Carolina legislature directed the
DHEC to promulgate regulations to address medical and safety
aspects of providing abortions, as well as the recordkeeping and
administrative practices of abortion clinics. As directed, the DHEC
drafted Regulation 61-12, building on the existing regulation, which
applied to second-trimester abortion clinics, and consulting abortion
regulations from other states. The DHEC also obtained and incorpo-
rated guidelines for outpatient facilities published by the American
Institute of Architects, as well as standards and guidelines issued by
the ACOG, Planned Parenthood, and the National Abortion Federa-
tion. Indeed, Regulation 61-12 largely tracks these medical standards
and guidelines.
For example, the National Abortion Federation requires that all
medical staff at member facilities be proficient in CPR, and the
ACOG recommends specific plans for training personnel in CPR;
Regulation 61-12 requires that all professional staff members be certi-
fied to perform CPR. See S.C. Code Ann. Regs. 61-12, § 204(C). The
National Abortion Federation recommends that nursing-care provid-
ers receive training and orientation; the Regulation requires that each
facility have and execute a written orientation program. See id.
§ 203(E). The ACOG recommends that physicians who perform abor-
tions in their offices provide for prompt emergency treatment or hos-
pitalization; the Regulation requires that each facility have an
agreement with a doctor who has hospital admitting privileges. See id.
§ 205(C)(2). The National Abortion Federation recommends that a
registered nurse or physician be responsible for a variety of compo-
nents of the abortion procedure and requires that a registered nurse
monitor recovering patients if general anesthesia has been used; the
Regulation requires that a licensed registered nurse supervise nursing
care. See id. § 205(D)(1). The National Abortion Federation requires
that emergency drugs be kept on hand to treat seven specific condi-
tions; the Regulation requires the availability of drugs to treat the
exact same conditions. See id. § 303(A)(1). The National Abortion
Federation states that testing for gonorrhea and chlamydia may be
routinely provided; the Regulation requires testing for gonorrhea and
chlamydia prior to each abortion procedure. See id. § 304(C). The
17
ACOG and the National Abortion Federation recommend that coun-
seling be offered; the Regulation requires that arrangements be made
for consultation. See id. § 307. The ACOG recommends retaining
accurate medical records for each patient for the time period required
by law; the Regulation requires that such records be retained for ten
years. See id. § 401. The ACOG recommends specific plans and pro-
cedures for health and safety; the Regulation requires written policies
and procedures for safety. See id. § 501. The ACOG recommends that
the examining room contain facilities for sterilization; the Regulation
sets out specific sterilization procedures. See id. § 602. The ACOG
recommends procedures for disposing of contaminated waste sup-
plies; the Regulation requires specific treatment of refuse and waste
disposal. See id. § 605. The ACOG recommends procedures for
proper use of fire equipment, and the National Abortion Federation
recommends regular emergency drills; the Regulation requires fire-
fighting equipment, alarm systems, and fire drills. See id. § 701.
Planned Parenthood requires procedure rooms large enough to accom-
modate a stretcher or gurney, post-procedure recovery rooms, and
dressing rooms, and the National Abortion Federation requires that
the operating table be located in a room of adequate dimensions, illu-
mination, and ventilation; the Regulation requires particular physical
facilities at abortion clinics, such as procedure rooms with doors wide
enough to accommodate a stretcher or wheelchair, recovery rooms,
storage rooms, and a dressing room. See id.§ 807. Planned Parent-
hood requires a battery-operated light source for emergency backup;
the Regulation requires emergency power and lighting. See id. § 809.
The national standards promulgated by such medical groups as the
ACOG, the National Abortion Federation, and Planned Parenthood
indisputably aim to protect the health of women seeking abortions and
one states explicitly that it is intended to "serve as a useful resource
for local and state agencies charged with safeguarding the public's
health." National Abortion Federation, Standards for Abortion Care
(1998). In relying upon such standards, the DHEC was appropriately
focused on ensuring that abortion is "performed by medically compe-
tent personnel under conditions insuring maximum safety for the
woman." Akron, 462 U.S. at 430 n.12 (quoting Connecticut v.
Menillo, 423 U.S. 9, 11 (1975) (per curiam)). A witness for the abor-
tion clinics testified that guidelines from organizations such as the
ACOG and the National Abortion Federation "provide our best cur-
18
rent assessment as to what is appropriate care." The witness explained
that the ACOG has "only one interest," the healthcare of women, and
if a doctor "deviate[s] from [the ACOG guidelines and standards]
without a documented reason for [the] deviation, in a court of law it
will be construed as malpractice." The witness recognized that the
ACOG's guidelines "are commonly used and relied upon by obstetri-
cians and gynecologists nationwide to determine the standard and the
appropriate level of care for their patients," and that the National
Abortion Federation standards are "a distillate of extensive experience
by highly skilled and experienced [abortion] providers."
This testimony on behalf of the abortion clinics should itself be
sufficient to establish that Regulation 61-12 was reasonably designed
to promote South Carolina's valid interest in women's health. But the
DHEC was also entitled to draw support for its use of the standards
from the observations made by the Supreme Court in abortion cases
that the ACOG and National Abortion Federation standards indicate
the "general medical utility" of a particular procedure. Ashcroft, 462
U.S. at 487 n.10; see also Akron, 462 U.S. at 435-37 (relying on
changes in the ACOG standards, among others, to demonstrate lack
of justification for hospitalization requirement); Simopoulos v. Vir-
ginia, 462 U.S. 506, 517 (1983) (upholding abortion regulations after
noting that "[o]n their face, the . . . regulations appear to be generally
compatible with accepted medical standards governing outpatient
second-trimester abortions" (citing publications from groups includ-
ing the ACOG)); see also Stenberg, 530 U.S. at ___, No. 99-830, slip
op. at 18 (discussing the ACOG's "medical opinion" in analyzing the
appropriateness of "[m]edical treatments and procedures"). Regula-
tion 61-12 thus indisputably represents a reasonable attempt to further
the health of abortion patients in South Carolina.
The abortion clinics argue that Regulation 61-12 exceeds and, in
some cases, conflicts with the recommendations of these national
groups. Further, they assert that the recommendations are just that --
recommendations -- and that requiring clinics to follow them will not
necessarily safeguard or improve the health of abortion patients. The
abortion clinics also note that some officials of these medical groups
do not support mandatory compliance with the recommendations.
While Regulation 61-12 does in some instances exceed the stan-
dards of the ACOG, Planned Parenthood, and the National Abortion
19
Federation, the bulk of the provisions comport with those guidelines,
and any deviations are not substantial. Any contrary claim is belied
by the abortion clinics' own testimony in this case. One of the doctors
who owns the Greenville Women's Clinic, when asked whether Reg-
ulation 61-12 was "consistent with what you would consider to be the
appropriate standards for abortion practice," responded that "[m]ost
parts of the regulation we already comply with and do, but because
it's good medical practice." Another abortion-clinic doctor testified
that he complied with a number of the Regulation's provisions
because "any doctor that's licensed by the State of South Carolina and
any doctor that's completed an OB/GYN residency successfully
would do that in the normal operation." The fact that not all health-
care professionals agree with the adoption of each specific aspect of
the Regulation is immaterial in light of South Carolina's "consider-
able discretion" in adopting licensing requirements aimed at the
health of women seeking abortions. Simopoulos , 462 U.S. at 516 ("In
view of its interest in protecting the health of its citizens, the State
necessarily has considerable discretion in determining standards for
the licensing of medical facilities").
Moreover, contrary to the district court's suggestion, see Greenville
Women's Clinic, 66 F. Supp. 2d at 732, there is no requirement that
a state refrain from regulating abortion facilities until a public-health
problem manifests itself. In Danforth, for example, the Court upheld
health measures that "may be helpful" and"can be useful." 428 U.S.
at 80, 81. It cannot be gainsaid that a regulation incorporating the rec-
ommendations of the leading institutional authorities in the field of
abortion provision aims to "further the health or safety of a woman
seeking an abortion." Casey, 505 U.S. at 878 (joint opinion of
O'Connor, Kennedy, and Souter, JJ.). Because South Carolina's Reg-
ulation 61-12 "appear[s] to be generally compatible with accepted
medical standards governing . . . abortions," Simopoulos, 462 U.S. at
517, we cannot reasonably conclude that the Regulation was not
directed at promoting South Carolina's valid interest in a woman's
health.
Even though Regulation 61-12 is directed at the valid objective of
safeguarding the health of women seeking abortions, it may still be
invalid if, in serving this objective, it unduly burdens "a woman's
ability to make th[e] decision" to terminate a pregnancy. Casey, 505
20
U.S. at 874 (joint opinion of O'Connor, Kennedy, and Souter, JJ.).
Thus, having determined that Regulation 61-12 serves a valid pur-
pose, we must still consider whether the cost imposed by the lawfully
directed regulation presents "a substantial obstacle to a woman seek-
ing an abortion." Id. at 878. But a regulation is not rendered invalid
simply because it makes it "more difficult or more expensive to pro-
cure an abortion," id. at 874, as "[a]ll abortion regulations interfere to
some degree with a woman's ability to decide whether to terminate
her pregnancy," id. at 875. In making this undue-burden assessment,
the Supreme Court has repeatedly emphasized that the focus must be
aimed more directly at the ability to make a decision to have an abor-
tion as distinct from the financial cost of procuring an abortion.
The district court found that enforcement of Regulation 61-12
would increase the cost of obtaining an abortion in varying amounts,
depending on the abortion clinic. The Greenville Women's Clinic,
which purports to follow national medical standards for providing
abortions, indicated that it substantially complies with the require-
ments of Regulation 61-12 and that full compliance would cost about
$23. At the Charleston Women's Medical Clinic, the cost increase
would be between $36 and $75. On the other hand, Dr. Lynn, who
operates abortion clinics in Beaufort and Greenville, testified that he
would have to make so many changes to his Beaufort facility that
compliance would require him to cease providing abortions at that
facility.
The record does not contain information indicating the manner in
which Regulation 61-12 would actually affect any South Carolina
woman's decision to seek an abortion. This is not due to a failure of
proof but a problem inherent in conducting a facial challenge to the
Regulation. The most that the parties could do in a preenforcement
case is to speculate about the Regulation's impact. While they can
reasonably forecast some cost increases, they can only surmise how
any cost increase would affect a particular woman's decision to seek
an abortion.
Even accepting the speculative figures relied upon by the district
court, we believe the court erred in concluding that at the two major
clinics in this case -- the Greenville Women's Clinic and the Charles-
ton Women's Medical clinic -- the impact from the expense of
21
implementing Regulation 61-12 was unduly burdensome. While the
$23-$75 increased cost per abortion due to compliance might make
it "more difficult" and would make it "more expensive to procure an
abortion," there is no evidence that it would impose an undue burden
on "a woman's ability to make th[e] decision to have an abortion."
Casey, 505 U.S. at 874 (joint opinion of O'Connor, Kennedy, and
Souter, JJ.). As to Dr. Lynn's Beaufort clinic, no evidence suggests
that women in Beaufort could not go to the clinic in Charleston, some
70 miles away.
Both Casey and pre-Casey decisions support the conclusion that
predicted costs to raise medical standards do not amount to an undue
burden on a woman's choice to obtain an abortion. In Casey, the
Court considered a mandatory 24-hour waiting period, which the
lower court had found would often cause "a delay of much more than
a day because the waiting period requires that a woman seeking an
abortion make at least two visits to the doctor" and would increase the
exposure of women seeking abortions to the "harassment and hostility
of anti-abortion protestors." 505 U.S. at 886 (joint opinion of
O'Connor, Kennedy, and Souter, JJ.). As a result, the lower court
concluded that the State regulation would especially burden women
with the fewest financial resources, who had to travel long distances,
and who needed to explain their absences to their husbands or to oth-
ers. See id. Yet the Supreme Court upheld the provision, stating that
"on the record before us, and in the context of this facial challenge,
we are not convinced that the 24-hour waiting period constitutes an
undue burden." Id. at 887 (emphasis added). The Casey Court also
upheld a recordkeeping and reporting provision, under which every
facility that performed abortions had to file with the State a detailed
report on every abortion, as well as quarterly statistical data. Because
this information was a "vital element of medical research," it could
not "be said that the requirements serve no purpose other than to
make abortions more difficult," even though the provision "might
increase the cost of some abortions by a slight amount." Id. at 901
(majority opinion).
Similarly, in Ashcroft, the Court upheld a reporting requirement
because, "[o]n its face and in effect," it was reasonably related to
accepted medical standards and constituted common medical practice,
462 U.S. at 487, 505, even though the provision raised the cost of an
22
abortion, see id. at 490. In contrast, the Court in Akron struck down
a provision requiring that all second-trimester abortions be performed
in a hospital because the evidence indicated that the cost of an abor-
tion would double and second-trimester abortions were "rarely per-
formed" in hospitals. 462 U.S. at 435.
In the case before us, as in Casey, the district court found that the
Regulation would "caus[e] delays in the woman's financial ability to
obtain an abortion" and would "increas[e] the distance a woman has
to travel to obtain an abortion," thereby increasing the cost of an abor-
tion. 66 F. Supp. 2d at 735. But again, in the context of a facial chal-
lenge and in the absence of any evidence in the record about how the
cost would affect women's ability to make a decision, we conclude
that the clinics have failed to demonstrate that the Regulation places
any serious burden on a woman's ability to make an abortion deci-
sion.
Moreover, the increased costs claimed by the three abortion provid-
ers are particularly modest when one considers that their purpose is
to protect the health of women seeking abortions. And there is no evi-
dence that the ability of any woman to obtain an abortion or to decide
to obtain an abortion would be frustrated by these particularized costs.
To conclude that any of the figures in this case would place an obsta-
cle in the path of a woman's right to choose to have an abortion
would necessitate the formulation of an arbitrary cost threshold
beyond which a price increase may not pass. This would irrationally
hamstring the State's effort to raise the standard of care in certain
abortion clinics, the procedures and facilities of which do not ade-
quately safeguard the health of their patients, simply because the clin-
ics' performance falls so far below appropriate norms that the expense
of upgrading their practices and equipment exceeds the arbitrarily
defined amount.
Nor does it unduly burden a woman's right to decide to obtain an
abortion that DHEC officials may inspect abortion clinics and copy
necessary documents. Such inspections ensure compliance with
health-care standards, an end which the copying provision also fur-
thers. See Danforth, 428 U.S. at 79, 81 (noting that a statute which
allowed medical records to "be inspected and health data acquired by
local, state, or national public health officers" did not have a "legally
23
significant impact or consequence on the abortion decision or on the
physician-patient relationship" (internal quotation marks omitted)).
This is particularly so in view of the Regulation's requirement that
"[a]ll records shall be treated as confidential," thereby respecting
patients' privacy. See id. at 80 (noting that proper respect for patient's
confidentiality was a factor in upholding reporting requirement); cf.
Whalen v. Roe, 429 U.S. 589, 602 & n.29 (1977) ("disclosures of pri-
vate medical information to . . . public health agencies are often an
essential part of modern medical practice even when the disclosure
may reflect unfavorably on the character of the patient").
In short, South Carolina Regulation 61-12 serves a valid purpose,
"one not designed to strike at the right itself," and it is not invalid
simply because it has the incidental effect of making it modestly more
difficult or more expensive to procure an abortion. Casey, 505 U.S.
at 874 (joint opinion of O'Connor, Kennedy, and Souter, JJ.).
III
South Carolina also contends that the district court erred in finding
that Regulation 61-12 violates the Equal Protection Clause. The Reg-
ulation applies to facilities that perform one second-trimester abortion
or five or more first-trimester abortions per month, but does not apply
to facilities that perform fewer than five abortions per month or that
perform no abortions at all. South Carolina argues that this classifica-
tion is rationally related to its interests in regulating those facilities
that perform abortions on a regular basis and notes that an abortion
is recognized to be "a unique act fraught with consequences that go
beyond mere medical complications."
The abortion clinics argue that because Regulation 61-12 "targets
abortion providers and their patients, treats them differently than pro-
viders and patients of comparable medical procedures, and directly
impacts the exercise of the right to abortion," we must review the
Regulation under a standard of strict scrutiny. The abortion clinics
contend that, under the strict-scrutiny standard, the Regulation cannot
be upheld because it is not narrowly drawn to protect the health of
women seeking abortions since their safety "is no more or less com-
pelling than the safety of patients undergoing comparable proce-
dures," which the State does not regulate.
24
At its essence, the Equal Protection Clause requires that "all per-
sons similarly situated . . . be treated alike." Cleburne v. Cleburne
Living Ctr., Inc., 473 U.S. 432, 439 (1985); Reed v. Reed, 404 U.S.
71, 77 (1971). But this directive does not deny States "the power to
treat different classes of persons in different ways." Reed, 404 U.S.
at 75. Most regulations define groups to which they apply or to which
benefits are conferred and when any such group is defined, of neces-
sity, the regulation favors or disadvantages other groups. See Romer
v. Evans, 517 U.S. 620, 631 (1996). To withstand scrutiny under the
Equal Protection Clause, therefore, a classification generally "must be
reasonable, not arbitrary, and must rest upon some ground of differ-
ence having a fair and substantial relation to the object of the legisla-
tion." Reed, 404 U.S. at 76 (internal quotation marks and citation
omitted). If, however, a regulation "impinges upon a fundamental
right protected by the Constitution," Perry Educ. Ass'n v. Perry Local
Educators' Ass'n, 460 U.S. 37, 54 (1983), or"operates to the peculiar
disadvantage of a suspect class," Massachusetts Bd. of Retirement v.
Murgia, 427 U.S. 307, 312 (1976), then the classification will be
strictly scrutinized. While classifications in legislation ordinarily will
be upheld against an equal protection challenge if"there is any rea-
sonably conceivable state of facts that could provide a rational basis
for the classification," FCC v. Beach Communications, Inc., 508 U.S.
307, 313 (1993), a regulation subject to strict scrutiny will be upheld
only if it is justified by a compelling state interest, see Roe, 410 U.S.
at 155.
In Roe, the abortion-decision right was found to be fundamental.
410 U.S. at 154-55, 162-63; see also Maher v. Roe, 432 U.S. 464, 474
(1977). But following Casey, that conclusion may be in doubt. The
Casey decision does not refer to the abortion-decision right as funda-
mental and does not apply the traditional strict-scrutiny standard
which protects fundamental rights. Rather, the Court adopted an
"undue burden" standard. Casey, 505 U.S. at 874 (joint opinion of
O'Connor, Kennedy, and Souter, JJ.); see also Stenberg, 530 U.S. at
___, No. 99-830, slip op. at 2. Indeed, any regulation that does not
"strike at the [abortion] right itself" is assessed by asking not whether
it serves a compelling state interest, but whether it "serves a valid pur-
pose." Casey, 505 U.S. at 874 (joint opinion of O'Connor, Kennedy,
and Souter, JJ.) (emphasis added). The dissenting opinion by Chief
Justice Rehnquist characterizes the joint opinion in Casey as follows:
25
Roe decided that a woman had a fundamental right to an
abortion. The joint opinion rejects that view. Roe decided
that abortion regulations were subject to "strict scrutiny" and
could be justified only in the light of "compelling State
interests." The joint opinion rejects that view.
Id. at 954 (Rehnquist, C.J., dissenting).
But because we have concluded in Part II that South Carolina's
Regulation 61-12 does not place an undue burden on a woman's abil-
ity to make an abortion decision, there is no need to resolve whether
it remains a fundamental right for an equal protection analysis and
thus requires application of the strict-scrutiny standard. See Harris v.
McRae, 448 U.S. 297, 312, 322 (1980) (having concluded that a law
restricting federal funding for abortion violated no constitutionally
protected right, the Court held it was unnecessary to analyze whether
the law infringed a fundamental right for equal protection purposes).
And likewise the equal protection analysis of a regulation applicable
to abortion clinics, and not other medical clinics, would not be con-
ducted under the strict-scrutiny standard. No authority exists to sup-
port a conclusion that abortion clinics or abortion providers have a
fundamental liberty interest in performing abortions free from govern-
mental regulation. See, e.g., Birth Control Centers, Inc. v. Reizen, 743
F.2d 352, 358 (6th Cir. 1984). Moreover, physicians as a group are
not a suspect class. See Attorney Gen. of New York v. Soto-Lopez, 476
U.S. 898, 906 n.6 (1986) (recognizing suspect classifications to
include those based on race, alienage, or national origin). Accord-
ingly, because we are not considering a regulation that impinges on
a fundamental right or that is directed at a suspect class, we review
South Carolina Regulation 61-12 under the Equal Protection Clause
by applying a rational-basis standard to determine whether the Regu-
lation's classification of physicians who perform one second-trimester
abortion or five or more first-trimester abortions per month is ratio-
nally related to a valid governmental purpose.
The rationality of distinguishing between abortion services and
other medical services when regulating physicians or women's health-
care has long been acknowledged by Supreme Court precedent.
Beginning with Roe itself, the Court recognized not only the special
medical interest of the women seeking abortions but also the State's
26
interest in protecting prenatal life. See 410 U.S. at 150. The long
stream of cases that followed Roe has only heightened an awareness
that for purposes of regulation, abortion services are rationally distinct
from other routine medical services, if for no other reason than the
particular gravitas of the moral, psychological, and familial aspects of
the abortion decision. As the Court in Casey observed:
[T]he abortion decision . . . is more than a philosophic exer-
cise. Abortion is a unique act. It is an act fraught with conse-
quences for others: for the woman who must live with the
implications of her decision; for the persons who perform
and assist in the procedure; for the spouse, family, and soci-
ety which must confront the knowledge that these proce-
dures exist, procedures some deem nothing short of an act
of violence against innocent human life; and, depending on
one's beliefs, for the life or potential life that is aborted.
Casey, 505 U.S. at 852 (majority opinion). Similarly in Harris, the
Supreme Court noted that it was rational for Congress to authorize
federal reimbursement for medical necessities, but not for medically
necessary abortions: "Abortion is inherently different from other med-
ical procedures, because no other procedure involves the purposeful
termination of a potential life." 448 U.S. at 325 (emphasis added).
And again in Danforth, the Court rejected the argument that "the State
should not be able to impose any recordkeeping requirements [on
abortion providers] that significantly differ from those imposed with
respect to other, and comparable, medical or surgical procedures."
428 U.S. at 80-81. In the same case, the Court applied the identical
analysis to uphold a provision requiring that a woman certify in writ-
ing that her consent to the abortion was freely given and not the result
of coercion, "[d]espite the fact that apparently no other . . . statute . . .
requires a patient's prior written consent to a surgical procedure." Id.
at 66-67.
We thus conclude that South Carolina has a rational basis for regu-
lating abortion clinics while not regulating other healthcare facilities.
See Williamson v. Lee Optical, 348 U.S. 483, 489 (1955) ("The prob-
lem of legislative classification is a perennial one, admitting of no
doctrinaire definition. . . . [T]he reform may take one step at a time,
addressing itself to the phase of the problem which seems most acute
27
to the legislative mind. . . . The legislature may select one phase of
one field and apply a remedy there, neglecting the others").
The only question remaining is whether the line drawn by Regula-
tion 61-12 at five abortions per month is rationally related to its pur-
pose of protecting the health of abortion patients. When it is
recognized that the State interest is in regulating those facilities that
are in the business of providing abortions, drawing the line at those
performing five abortions per month is rational. While anyone could
say that it is just as rational to draw the line at ten abortions per month
or three abortions per month, this type of line-drawing is typically a
legislative function and is presumed valid. See Murgia, 427 U.S. at
314. Indeed, line-drawing of this type is not only typical of legisla-
tion, it is necessary. Thus, the Americans With Disabilities Act pro-
vides that the right to be free from discrimination because of one's
disability is granted to an employee of a company with 15 employees,
but not to an employee of a company with only 14 employees. See
42 U.S.C. § 12111(5)(A). Similarly, Title VII of the Civil Rights Act
of 1964 prohibits discrimination on the basis of race, color, religion,
sex, or national origin by employers with 15 or more employees, but
not employers with 14 or fewer employees. See 42 U.S.C. § 2000e(b).
The statute books are filled with similar examples. See, e.g., the Fam-
ily and Medical Leave Act, 29 U.S.C. § 2611(2) (giving rights only
to employees employed 12 months or longer); the Comprehensive
Crime Control Act of 1984, 18 U.S.C. § 3559(c)(1) (mandating a sen-
tence of life imprisonment for persons convicted of three serious vio-
lent felonies). In a similar vein, South Carolina permits persons 16
years or older to obtain a driver's license, denying a license to persons
15 years or younger. See S.C. Code § 56-1-40; see also S.C. Const.
art. XVII, § 14 (persons 18 years or older have "full legal rights and
responsibilities"). In each of these instances, persons falling on one
side of the line are treated differently from those on the other. But this
result is inherent in legislation. Under rational-basis review, we need
to determine only whether the line is drawn in a manner that reason-
ably furthers the legislative concern.
In this case, South Carolina elected to regulate the business of pro-
viding abortions and determined that five per month would distin-
guish the abortion clinic from the facility performing abortions
incidental to another medical practice. The selection of this number
28
is reasonably related to the State's legitimate interest in promoting
and protecting the health of women visiting abortion clinics, and
therefore the actual placement of the line is not a decision that the
courts may second-guess. No more than the abortion regulations
examined by the Supreme Court in Danforth and Harris does the
South Carolina regulation before us contravene the limitations of the
Equal Protection Clause.
IV
It is regrettable that our good colleague in dissent would rule on the
basis that abortion is like any other simple medical procedure that is
directed at injury or disease. Thought of in this way, it is understand-
able that he, like the district court, might find many of South Caroli-
na's regulations unnecessary. Why have inspections, keep records,
and minimize the medical risks for only the abortion procedure, when
such a protocol is not mandated for comparable medical practices
addressing injury and disease? But the importance of the deeply
divided societal debate over the morality of abortion and the weight
of the interests implicated by the decision to have an abortion can
hardly be overstated. As humankind is the most gifted of living crea-
tures and the mystery of human procreation remains one of life's most
awesome events, so it follows that the deliberate interference with the
process of human birth provokes unanswerable questions, unpredict-
able emotions, and unintended social and, often, personal conse-
quences beyond simply the medical ones.
In adopting an array of regulations that treat the often relatively
simple medical procedures of abortion more seriously than other med-
ical procedures, South Carolina recognizes the importance of the
abortion practice while yet permitting it to continue, as protected by
the Supreme Court's cases on the subject. A woman in South Carolina
who has determined to abort the life of a fetus can do so without sig-
nificant interference from South Carolina's regulations and be assured
thereby of a dignified and safe procedure. That these regulations
impose a modest cost increase for increased medical safety and a
modest compromise to privacy in the form of inspections and record-
keeping serves the complex public interests on the subject -- the
interests expressed by both those who favor abortion and those who
oppose it.
29
Society's last word on this subject has not been spoken. But South
Carolina's regulations incidental to the exercise of the abortion right
should, in the meantime, be respected.
V
Because we reverse the district court's judgment finding Regula-
tion 61-12 unconstitutional, we also reverse the district court's award
of attorneys fees made under 42 U.S.C. § 1988 to the abortion clinics.
The clinics are no longer prevailing parties. See Alexander S. v. Boyd,
113 F.3d 1373, 1388 (4th Cir. 1997); Clark v. Township of Falls, 890
F.2d 625, 626-27 (3d Cir. 1989).
REVERSED
30
Volume 2 of 2
31
_________________________________________________________________
HAMILTON, Senior Circuit Judge, dissenting:
After a six-day bench trial, the district judge, who presently is a
judge on this court, wrote a ninety-four page decision setting forth
innumerable factual findings which lead inexorably to the legal con-
clusions that South Carolina Code Annotated Regulation 61-12 vio-
lates both the Due Process and Equal Protection Clauses of the United
States Constitution and that the unconstitutional portions of Regula-
tion 61-12 are not severable from the constitutional portions. Cava-
lierly, the majority today sets aside this thorough and meticulous
decision rendered by our esteemed colleague without identifying a
single finding of fact made by him as being clearly erroneous. To
accomplish this tour de force, the majority is compelled to set up and
defeat a lack of evidence straw man. Unlike the majority, I believe the
exhaustive and detailed factual findings made by the district judge
amply support, more accurately compel, the decision rendered by
him. Because I am in complete agreement with the district judge's
holdings that South Carolina Code Annotated Regulation 61-12 vio-
lates both the Due Process and Equal Protection Clauses of the United
States Constitution and that the unconstitutional portions of Regula-
tion 61-12 are not severable from the constitutional portions, I dissent.
I
The constitutional issues presented in this case were hotly con-
tested by the parties at trial, with each side putting forth extensive evi-
dence in support of their respective positions. Based on the evidence
presented, the district court resolved many factual disputes by making
detailed findings of fact. Because many of the district court's factual
findings are completely ignored by the majority, I set forth below the
procedural history and facts of this case.
32
A
Prior to 1995, the State of South Carolina only required licensing
of physicians' offices or other facilities in which second trimester
abortions were performed. See S.C. Code Ann.§§ 44-41-20(b), -70(b)
(Law. Co-op. 1995). On January 3, 1995, the South Carolina legisla-
ture amended Chapter 41 of Title 44 to require licensing by the South
Carolina Department of Health and Environmental Control (DHEC)
of any non-hospital medical facility in which five or more first trimes-
ter abortions are performed in a month. See id. § 44-41-75(A) (West
Supp. 1999). This legislation also required DHEC to promulgate reg-
ulations concerning "sanitation, housekeeping, maintenance, staff
qualifications, emergency equipment and procedures to provide emer-
gency care, medical records and reports, laboratory, procedure and
recovery rooms, physical plant, quality assurance, infection control,
and information on and access to patient follow-up care necessary to
carry out the purposes of this section." Id. § 44-41-75(B). Pursuant to
this enabling legislation, DHEC promulgated a regulation, entitled
"Standards For Licensing Abortion Clinics," see S.C. Code Ann.
Regs. 61-12 (Regulation 61-12), which sets forth detailed require-
ments that an abortion clinic1 must comply with in order to obtain and
maintain a license to perform abortions.
On June 27, 1996, the day before Regulation 61-12 temporarily
went into effect, Greenville Women's Clinic (GWC) and Charleston
Women's Medical Clinic, Inc. (CWMC), two medical clinics which
offer first trimester abortion services in South Carolina, and Dr. Wil-
liam Lynn (Dr. Lynn), a physician that owns and operates medical
practices in Beaufort and Greenville, South Carolina, brought this
action against Douglas Bryant (Bryant) as the Commissioner of
DHEC, the Governor of the State of South Carolina, and the Attorney
General of the State of South Carolina challenging the constitutional-
ity of Regulation 61-12. On the same day, the plaintiffs filed a motion
_________________________________________________________________
1 An abortion clinic is defined as"[a]ny facility, other than a hospital
. . . in which any second trimester or five or more first trimester abortions
per month are performed." S.C. Code Ann. Regs. 61-12, § 101(B).
Accordingly, the definition of abortion clinic includes any physician's
office in which five or more first trimester abortions per month are per-
formed.
33
for a temporary restraining order, or, in the alternative, for a prelimi-
nary injunction.
On July 19, 1996, the district court granted the plaintiffs' motion
for a temporary restraining order and enjoined the defendants from
enforcing Regulation 61-12, pending a hearing on the issuance of a
preliminary injunction. The district court never held a hearing on the
issuance of a preliminary injunction because, prior to the hearing date,
the parties agreed to continue the injunction pending a decision by the
district court on the merits.
Following a six day bench trial, the district court, on February 5,
1999, held that Regulation 61-12 was constitutionally infirm on due
process and equal protection grounds. See Greenville Women's Clinic
v. Bryant, 66 F. Supp. 2d 691, 724-43 (D.S.C. 1999). The district
court also held that, in light of both South Carolina law and the text
of Regulation 61-12, Regulation 61-12 was not subject to the doctrine
of severability. See id. at 743-44. On April 13, 1999, the district court
awarded the plaintiffs $324,040.61 in costs and attorneys' fees. Bry-
ant and the Attorney General of South Carolina appeal both the dis-
trict court's decision on the merits and the order awarding costs and
attorneys' fees. The Governor of South Carolina appeals only the dis-
trict court's order awarding costs and attorneys' fees.2
B
Located in Greenville, South Carolina, GWC provides gynecologi-
cal services, including abortions through fourteen weeks of pregnancy
measured from the pregnant woman's last menstrual period (lmp).3
_________________________________________________________________
2 Although the Governor of South Carolina appeals only the district
court's order awarding costs and attorneys' fees, for ease of reference, I
will refer to Bryant, the Governor of South Carolina, and the Attorney
General of South Carolina as the defendants.
3 Pregnancy is measured either from the date of a woman's lmp or from
conception, which is generally considered to occur two weeks after a
woman's lmp. Accordingly, eight weeks after the lmp is equivalent to six
weeks from the date of conception. Under Regulation 61-12, the first tri-
mester of pregnancy ends at fourteen weeks after the lmp. See S.C. Code
Ann. Regs. 61-12, § 103(S).
34
Drs. Terry Buffkin and Thomas Campbell, two physicians licensed to
practice in South Carolina and board certified in obstetrics and gyne-
cology, own and operate GWC. On average, GWC performs approxi-
mately 2,746 first trimester abortions per year.
Located in Charleston, South Carolina, CWMC also provides gyne-
cological services, including abortions through 12.5 weeks of preg-
nancy measured from the pregnant woman's lmp. On average,
CWMC performs 2,408 first trimester abortions per year.
Dr. Lynn owns and operates two medical practices, one in Beau-
fort, South Carolina, the other in Greenville, South Carolina. Dr.
Lynn is licensed to practice medicine in South Carolina and is board
certified in obstetrics and gynecology. As part of his practice, Dr.
Lynn performs abortions through 13.9 weeks of pregnancy measured
from the pregnant woman's lmp. On average, Dr. Lynn performs 407
first trimester abortions per year in his Beaufort office and 536 first
trimester abortions per year in his Greenville office.
All of the abortions performed at GWC, CWMC, and Dr. Lynn's
two practices are first trimester abortions. In fact, there are no abor-
tion providers in South Carolina who perform elective abortions
(those not associated with medical complications) in the second tri-
mester of pregnancy.4
The most common first trimester abortion procedure performed by
the plaintiffs is the suction curettage procedure. The suction curettage
procedure is also utilized for spontaneous miscarriages. Although not
wholly without risks, it is undisputed that a suction curettage abortion
during the first trimester of pregnancy is a safe and quick medical
procedure performed between six and fourteen weeks after a woman's
lmp.5 It involves dilating the cervix, inserting a suction catheter into
_________________________________________________________________
4 Because the plaintiffs in this case only provide abortions during the
first trimester of pregnancy, the plaintiffs' challenge to Regulation 61-12
is limited to its application to providers of first trimester abortions in
South Carolina. Accordingly, I express no opinion as to the constitution-
ality of Regulation 61-12 as applied to facilities that may seek to perform
second trimester abortions in the future.
5 By way of comparison, according to one of the plaintiffs' experts
whose testimony was credited by the district court, having a first trimes-
ter suction curettage abortion is safer than having a shot of penicillin in
a physician's office.
35
the uterus, and applying suction to remove the contents of the uterus.
Although the patient is usually in the procedure room for a total of
ten minutes, the procedure itself only takes approximately two to five
minutes. It involves no incision and a minimum of bleeding. The pro-
cedure is also performed under general anesthesia or by applying a
numbing medicine around the cervix. After the procedure, patients
usually walk to the recovery area, where their pulse and blood pres-
sure are monitored, and they are checked for any abnormal bleeding.
Possible complications from the suction curettage procedure are faint-
ing from vasovagal response, uterine perforation, excessive bleeding,
infection, and retained tissue in the uterus. However, while the total
complication rate for the procedure is about one in one hundred, seri-
ous complications are rare. The rate for complications requiring hos-
pitalization is only about one in 2000. And the mortality rate is one
in 100,000, which is about twenty-five times less risky than carrying
a pregnancy to term. There is no evidence in this case that a first tri-
mester suction curettage abortion has ever resulted in a woman's
death in South Carolina.
Physicians in South Carolina, including Dr. Buffkin and Dr. Camp-
bell, also perform medical abortions to terminate pregnancies located
outside the uterus (such as in the fallopian tube) during the first six
to seven weeks of pregnancy. A medical abortion is an even safer pro-
cedure than the suction curettage procedure. It involves the perfor-
mance of a routine blood test to measure the patient's hormone levels,
followed by the injection of a drug (methotrexate) into the patient's
arm. There is no recovery time after the injection, and only mild vagi-
nal bleeding. Follow-up care consists of rechecking the patient's hor-
mone levels several days after the injection, and rechecks thereafter
at seven-day intervals. Although currently limited in use to the termi-
nation of ectopic pregnancies, methotrexate and a second drug, RU-
486, are currently being used in research protocols for use in terminat-
ing intrauterine pregnancies.
C
Currently, South Carolina does not require licensing of physicians'
offices outside of the abortion context. Furthermore, physicians
licensed to practice medicine in South Carolina are not subject to
DHEC regulation, but rather are governed by the South Carolina State
36
Board of Medical Examiners. See S.C. Code Ann. §§ 40-47-5 to 40-
47-270 (West Supp. 1999). The State Board of Medical Examiners
handles the examination and licensure of physicians within South
Carolina, complaints against physicians, the suspension and revoca-
tion of licenses when appropriate, and the imposition of civil penalties
and other sanctions against physicians. With the exception of standard
building codes imposed by their particular locales, physicians' offices
are not subject to any mandated design and construction requirements.
Notably, unlike abortion clinics, physicians' offices that do not per-
form five or more abortions per month are not subject to the require-
ments of Regulation 61-12.
Regulation 61-12 is divided into ten "Parts." Part I of Regulation
61-12 sets forth "Definitions" and general"Requirements for Licen-
sure" of abortion clinics. Part I defines an abortion as "[t]he use of an
instrument, medicine, drug, or other substance or device with intent
to terminate the pregnancy of a woman, known to be pregnant, for
reasons other than to increase the probability of a live birth, to pre-
serve the life or health of the child after live birth, or to remove a dead
fetus." S.C. Code Ann. Regs. 61-12, § 101(A). Part I defines an abor-
tion clinic as "[a]ny facility, other than a hospital . . . in which any
second trimester or five or more first trimester abortions per month
are performed." Id. § 101(B).
In order to operate an abortion clinic, the clinic must first obtain
a license from DHEC. See id. § 102(A). Prior to the issuance of a
license, the abortion clinic must undergo a pre-licensure inspection.
See id. § 102(F). Once the initial license is obtained, the abortion
clinic must be inspected annually in order to obtain renewal of the
license. See id. §§ 102(F), (H). In addition, Regulation 61-12 provides
that the abortion clinic is subject to unannounced inspections by
DHEC, see id. § 102(F)(1), during which DHEC inspectors "have
access to all properties and areas, objects, records and reports, and
shall have the authority to make photocopies of those documents
required in the course of inspections or investigations." Id.
§ 102(F)(2).
Upon a determination by DHEC that an abortion clinic is in viola-
tion of "any statutory provision, rule or regulation relating to the oper-
ation or maintenance of such facility," DHEC may deny, suspend, or
37
revoke the license. Id. § 103. In addition, DHEC may assess a mone-
tary penalty up to $5,000 for each violation. See id. § 103(F). The
amount of a penalty is based upon the specific provision at issue,
which has been preassigned as either a Class I, II, or III violation,
with a Class I violation being the most serious. See id.
Part II concerns the "Administration and Management" of the abor-
tion clinic. Section 201 requires an abortion clinic to develop and
implement detailed written policies and procedures for the operation
of the clinic, which must include, at a minimum, policies and proce-
dures to assure compliance with all federal, state, and local laws
which govern the clinic; the designation of a person to whom respon-
sibility for operation and maintenance of the abortion clinic is dele-
gated and the establishment of methods for holding the person
responsible; personnel policies and procedures, including in-service
training requirements; a facility-wide quality improvement program,
including statistical summaries and a written plan of implementation;
a policy and procedure for patient rights and grievance procedures;
functional safety and maintenance policies and procedures; a policy
and procedure for incident reporting; and policies and procedures for
obtaining informed consent from the patient. See id. § 201(B). In
addition, the abortion clinic's policies and procedures must include a
provision for annual review and evaluation of the clinic's other poli-
cies and procedures, as well as for its management and operation. See
id.
Section 203 requires an abortion clinic to maintain on file all cur-
rent policies and procedures concerning the operation of the clinic,
memoranda of agreements and credentialing documentation, a copy
of Regulation 61-12, annual elevator safety inspections, and annual
heating, ventilation, and air conditioning inspection reports. See id.
§§ 203(A)-(E).
Section 204 sets forth detailed personnel requirements for each
abortion clinic. The abortion clinic must obtain and verify profes-
sional and personal background information on every employee, see
id. § 204(A), and must develop and implement a written orientation
program for new staff members, to include orientation on the clinic's
other policies and procedures, see id. § 204(E). A formal, in-service
training program must also be planned and provided for all employees
38
and volunteers, and records kept of attendance. See id. § 204(F). The
in-service training of all employees and volunteers must include four
specified areas--infection control, fire protection, confidentiality and
patient rights, and licensing regulations. See id. Written job descrip-
tions must be prepared and reviewed annually, see id. § 204(G), and
a personnel file must be maintained on each employee and contain the
employee's current job description that reflects the employee's
responsibilities and work assignments, documentation of the employ-
ee's orientation, in-service education, appropriate licensure (if appli-
cable) and tuberculin skin testing, see id.§ 204(H). Annually, each
employee must have a tuberculin skin test or, if previously positive,
a chest x-ray to determine whether tuberculosis is present. See id.
§ 204(B). If tuberculosis is diagnosed, the abortion clinic must pro-
vide treatment and investigate employee contacts. See id. Employees
and volunteers are also banned from working if they have any
infected wounds, boils, sores, acute respiratory infections, or any
other contagious disease or illness. See id.§ 204(D). In addition, all
professional and allied health care staff members must be certified by
the American Red Cross or the American Heart Association as capa-
ble of performing CPR, although only one such certified person must
be with patients when they undergo the abortion procedure and during
the recovery period. See id. § 204(C).
Section 205 sets forth requirements for the clinical staff of an abor-
tion clinic, which encompasses all physicians, nurses, and allied
health professionals. See id. § 205(A). Abortions may only be per-
formed by physicians licensed to practice medicine in South Carolina
and who are also "properly qualified by training and experience to
perform pregnancy termination procedures." See id. § 205(C). The
abortion clinic must also obtain and maintain signed, written agree-
ments with at least one physician board certified in obstetrics and
gynecology who has admitting privileges at a local hospital which
provides obstetrical and gynecological services. See id. All nursing
care is required to be under the supervision of a registered nurse
licensed in the State of South Carolina, regardless of the presence of
a physician in the abortion clinic, and the registered nurse must be "on
duty to provide or supervise all nursing care" during preparation, the
procedure, recovery, and discharge. Id.§ 205(D). Licensed practical
nurses may be employed so long as they work under the supervision
and direction of a registered nurse. See id.§ 205(E). Ultrasounds may
39
only be conducted by physicians or ultrasound technicians who have
documented evidence of completion of a training course in ultrasono-
graphy. See id. § 205(F). Finally, the entire clinical staff must partici-
pate in quarterly meetings to review and analyze clinical experiences,
and minutes must be kept and maintained of each meeting. See id.
§ 205(B).
Section 209 requires an abortion clinic to "have written policies
and procedures to assure the individual patient the right to dignity,
privacy, safety, and to register complaints with[DHEC]." Id.
§ 209(A). A copy of the patient's rights must be conspicuously dis-
played, and a copy must be signed by each patient and included in the
patient's medical record. See id. § 209(B).
Part III of Regulation 61-12 sets forth requirements for "Patient
Care." Additional "patient care policies and procedures designed to
ensure professional and safe care for patients" must be developed, id.
§ 301, and must include, but are not limited to, policies and proce-
dures for admission criteria; physician and nurse responsibilities;
details regarding the pre-operative procedures (including history and
physical examinations, special examinations, lab procedures and con-
sultations which will be required, and ultrasonography procedures);
details regarding the actual abortion procedure (including the use of
IVs, fluids, analgesia, anesthesia, and tissue examination and dis-
posal); details regarding post-procedure care and recovery room care,
including emergency care; provisions for education of the patient,
family and others, as appropriate in pre- and post-procedure care;
plans for follow-up care, including arrangements for a post-operative
visit and specific instructions in the event of an emergency; proce-
dures for the management and referral of high-risk conditions; proce-
dures for the transfer of patients when needed; procedures for
infection control and sanitation (including duties and responsibilities
of an infection control committee which are, in turn, charged with the
responsibility of developing and implementing specific patient care
and administrative policies to investigate, control, and prevent infec-
tions in the clinic); and procedures for the registration of fetal death
or death certificates. See id. §§ 301(A)-(K).
Section 303 of Regulation 61-12 relates to an abortion clinic's
pharmaceutical services. Section 303 requires every abortion clinic to
40
maintain an emergency supply of drugs and medicines to treat, at a
minimum, the following conditions: (1) cardiac arrest; (2) seizure; (3)
asthmatic attack; (4) allergic reaction; (5) narcotic toxicity; (6)
hypovolemic shock; and (7) vasovagal shock. See id. § 303(A). In
addition, Section 303 mandates that the medicines must be prepared
in an area that contains a sink and a counter. See id. § 303(D).
Section 304 requires laboratory services to be performed in compli-
ance with the requirements already mandated by the Clinical Labora-
tory Improvement Amendments of 1988 (CLIA-88), 42 U.S.C. § 263a.6
See S.C. Code Ann. Regs. 61-12, § 304(A). It further requires the
physician to perform a urine pregnancy test (unless fetal heart beats
or movements are identified on physical examination), a urinalysis
which includes albumin and glucose examination, and a hematocrit or
hemoglobin test. See id. § 304(B). In addition, the physician must per-
form a test to determine Rh factor. See id. If the patient is Rh positive,
an additional Du variant test is required. See id. Rh(D) immune glob-
ulin must be administered if the patient is determined to be Rh nega-
tive. See id. Testing for chlamydia and gonorrhea is mandatory, while
testing for syphilis serology and performance of a Papanicolaou (pap)
smear must be offered to the patient. See id. § 304(C).
Section 305 provides additional requirements for emergency care.
It requires that "[a]ll staff and/or consulting physicians" have admit-
ting privileges at one or more local hospitals that provide appropriate
obstetrical/gynecological services or have in place documented
arrangements approved by DHEC for the transfer of emergency cases
when hospitalization becomes necessary. Id.§ 305(A). The abortion
clinic must maintain equipment and services to render emergency
resuscitative and life-support procedures pending transfer. See id.
§ 305(B). And the abortion clinic must notify, in writing, the local
ambulance service of the location of the clinic and the nature of the
medical problems which may result from abortions. See id. § 305(C).
Section 306 requires an abortion clinic to purchase and maintain
specific equipment and supplies, including such items as "[a] bed or
recliner suitable for recovery," oxygen, mechanical suction, resuscita-
_________________________________________________________________
6 CLIA-88 has been amended, see 42 U.S.C.A. § 263a (West 1999).
This amendment has no relevance to this case.
41
tive equipment, emergency medications and intravenous fluids, "[a]
clock with a sweep second hand," sterile suturing equipment and sup-
plies, an adjustable examination light, and soiled linen and waste con-
tainers. Id. §§ 306(A)-(I).
Section 307 requires an abortion clinic to make"[a]rrangements . . .
for consultation or referral services in the specialties of obstet-
rics/gynecology, anesthesiology, surgery, psychiatry, psychology,
clinical pathology and pathology, clergy, and social services, as well
as any other indicated field, to be available as needed." Id. § 307.
Section 308, entitled "Quality Improvement," mandates a written
plan for a quality improvement program for patient care and designa-
tion of an individual responsible for coordinating the program. See id.
§ 308(A). Specific requirements include ongoing monitoring and
evaluation of "patient care services, staffing, infection prevention and
control, housekeeping, sanitation, safety, maintenance of physical
plant and equipment, patient care statistics, and discharge planning
services." Id. § 308(B). Evaluation of patient care is required to be
"criteria-based, so that certain actions are taken or triggered when
specific quantified, predetermined levels of outcomes or potential
problems are identified." Id. § 308(C). The process must incorporate
a quarterly review of a minimum of five percent of the medical
records per quarter, but not less than five records per quarter shall be
reviewed, see id. § 308(D), and must include a means of obtaining
input from families of patients if they are "involved in the care and
services provided by the facility." Id.§ 308(E). The abortion clinic
administrator must review the findings of the program and ensure cor-
rective actions are taken. See id. § 308(F). The program must also
identify and establish indicators of quality care, specific to the abor-
tion clinic, that must be monitored and evaluated. See id. § 308(G).
Annual review of the results is also required. See id. § 308(H).
Part IV of Regulation 61-12 sets forth requirements for "Medical
Records and Reports." Section 401 begins by setting forth detailed
requirements for the preparation and maintenance of medical records,
which must include, at a minimum, twenty categories of information.
See id. § 401. Section 401 requires a face sheet with patient identifica-
tion data, including but not limited to, the patient's name, address,
telephone number, social security number, date of birth, the father and
42
mother's name if the patient is a minor, the husband's name, and the
name, address, and telephone number of a person to be notified in the
event of an emergency. See id. § 401(A)(1). The records are required
to be kept confidential by the abortion clinic (although no such
requirement is imposed upon DHEC inspectors who obtain them) and
must be stored for a minimum of ten years. See id. § 402.
Section 403 requires the preparation of additional reports, includ-
ing a record of every accident or incident occurring in the abortion
clinic which involves patients, staff, or visitors. See id. § 403(B). If
it results in serious injury, the accident or incident must be self-
reported to DHEC. See id. Serious injuries"include, but are not lim-
ited to," accidents and incidents that lead to hospitalization or death
(other than of a fetus) and adverse drug reactions. Id.
Part V of Regulation 61-12, entitled "Functional Safety and Main-
tenance," requires additional policies and procedures, including, but
not limited to, safety rules and practices for personnel, equipment,
gases, liquids, drugs, supplies, and services; provisions for investigat-
ing accidents on the premises; provisions for disseminating safety-
related information to employees and users of the abortion clinic; pro-
visions for syringe and needle handling and storage; and provisions
for managing infectious waste in accordance with another DHEC reg-
ulation already governing such matters. See id. §§ 501(A)-(B). In
addition, the abortion clinic must prepare and post a disaster pre-
paredness plan for evacuation in the event of a fire or other emer-
gency. See id. § 502(A). All parts and portions of the abortion clinic
are generically required to be kept "in good repair and operating con-
dition," and "free of hazards." Id.§ 503(A). In addition, "[a]ll wooden
surfaces shall be sealed with a non-lead based paint, lacquer, varnish,
or shellac that will allow sanitization." Id. A written preventive main-
tenance program must be developed and implemented for patient
monitoring equipment and tested in accordance with manufacturer's
specifications, but not less than annually. See id. § 503(B). Records
of maintenance and testing must be kept. See id.
Part VI of Regulation 61-12 is entitled "Infection Control and Sani-
tation." Part VI requires policies and procedures be established in
writing to assure safe and aseptic treatment and protection of all
patients and personnel against cross-infection. See id. § 601(A). Part
43
VI also sets forth specific requirements for sterilization, including
daily testing of the autoclave and a log of results, as well as periodic
calibration and preventative maintenance as necessary, but not less
than annually. See id. §§ 602(B)-(C). This part of Regulation 61-12
also requires that the abortion clinic "be kept neat, clean, and free
from odors," id. § 604(A), mandates specific requirements for clean-
ing methods to be used and prohibits others, and imposes require-
ments for refuse and waste disposal, see id.§§ 604(A)-(C), 605.
Section 606 requires that "[a]ll outside areas, grounds and/or adjacent
buildings shall be kept free of rubbish, grass, and weeds that may
serve as a fire hazard or as a haven for insects, rodents and other
pests," and that all "[o]utside stairs, walkways, ramps and porches
shall be maintained free from accumulations of water, ice, snow, and
other impediments." Id. § 606.
Part VII of Regulation 61-12, entitled "Fire Protection and Preven-
tion," provides detailed requirements for fire-fighting equipment and
systems, an evacuation plan, training of employees in the evacuation
plan, mandatory fire drills at least once every three months, mainte-
nance of fire equipment, and maintenance of records proving compli-
ance with the provisions. See id. §§ 701-03.
Part VIII of Regulation 61-12 sets forth detailed requirements for
the "Design and Construction" of abortion clinics. There is no grand-
fathering provision (unlike other DHEC regulations governing medi-
cal and patient care facilities)--rather, all abortion clinics must be in
full compliance within two years. See id.§ 804. The requirements are
set forth in detail, rendering a summary of them unproductive. Of
note, Part VIII governs the number and size of procedure and recov-
ery rooms, specifies the design and equipment required in toilet
rooms, regulates the direction of the air flow within the sterilization
rooms, mandates a minimum width for doors and corridors, sets forth
specific requirements for heating and air conditioning (the unit must
be capable of maintaining a temperature between seventy-two and
seventy-six degrees), regulates the abortion clinic's air supply and
exhaust, regulates design criteria for abortion clinic entrances, sets
forth specific requirements for the janitor's closets, and specifies the
corridor glazing materials, wall finishes, wall bases, and interior fin-
ish materials that must be present. See id.§§ 807(A)-(Y).
44
Part IX of Regulation 61-12 sets forth additional"Prerequisites for
Initial Licensure" of the abortion clinic, including plan and construc-
tion approval by DHEC, and specifies the documentation required to
be submitted with the abortion clinic's initial application for licen-
sure. See id. Part IX(A)-(B). Part X of Regulation 61-12, entitled
"General," states in its entirety that "[c]onditions arising that have not
been addressed in these regulations shall be managed in accordance
with the best practices as interpreted by the Department." Id. Part X.
D
As noted earlier, prior to 1995, the State of South Carolina only
required licensing of physicians' offices or other facilities in which
second trimester abortions were performed. See S.C. Ann. §§ 44-41-
20(b), -70(b) (Law. Co-op. 1995). Effective, January 3, 1995, Chapter
41 of Title 44 was amended as follows:
(A) A facility in which any second trimester or five or
more first trimester abortions are performed in a
month must be licensed by [DHEC] to operate as an
abortion clinic and must comply with the provisions of
Article 3 [the Woman's Right to Know Act].
(B) The department shall promulgate regulations concern-
ing sanitation, housekeeping, maintenance, staff quali-
fications, emergency equipment and procedures to
provide emergency care, medical records and reports,
laboratory, procedure and recovery rooms, physical
plant, quality assurance, infection control, and infor-
mation on and access to patient follow-up care neces-
sary to carry out the purposes of this section.
Id. § 44-41-75 (West Supp. 1999). Pursuant to this enabling legisla-
tion, DHEC promulgated Regulation 61-12.
After the legislation requiring licensure of abortion clinics was
passed, Alan Samuels (Samuels) of DHEC was charged with the
responsibility for supervising the drafting and promulgation of Regu-
lation 61-12. Although Samuels has some experience in health care
45
administration, he has received no formal medical training or educa-
tion. Upon completion of his college education, Samuels served in the
United States Army for twenty-four years, where he served with the
adjutant general corps and the medical services corps as a personnel
officer and hospital inspector. After leaving military service, Samuels
began employment with DHEC, where his duties consisted of inspect-
ing various types of health care facilities for compliance with existing
regulations. He was eventually promoted to the position of director of
DHEC's Health Licensing Division, and now is retired.
Although Samuels provided some input and edits during the draft-
ing process, he did not personally draft any portions of Regulation 61-
12. Rather, he delegated the primary drafting responsibility to George
Moore (Moore), who was the Director of Outpatient and Home Care
within DHEC's Division of Health Licensing. Samuels testified that,
when Regulation 61-12 was promulgated, he knew very little about
abortion procedures or the differences between first trimester and sec-
ond trimester abortions. The record reflects that Samuels conducted
no meaningful study or research into the differences between a first
and second trimester abortion, and conducted no meaningful inquiry
into what regulatory requirements were appropriate for facilities per-
forming only first trimester abortions.
Like Samuels, Moore has some education and experience with hos-
pital administration, but has received no formal medical training or
education. After receiving an undergraduate degree, Moore joined the
United States Army where he served twenty-five years. He spent the
early part of his service in the adjutant general corps performing gen-
eral administrative duties, after which time he transferred to the medi-
cal services corps where he performed administrative duties
associated with health care facilities and hospitals. During his service,
Moore received a master's degree in hospital administration. Upon his
retirement from military service in 1988, Moore began employment
with DHEC, inspecting hospitals and nursing homes for compliance
with existing regulations. He was later promoted to Director of Out-
patient and Home Care within the Division of Health Licensing, the
position he held when Samuels asked him to assume primary respon-
sibility for the drafting of Regulation 61-12.
In preparation for drafting Regulation 61-12, however, Moore took
no meaningful steps to educate himself about first trimester abortions,
46
how they differed from second trimester abortions, or what require-
ments would be appropriate for a facility which performed only first
trimester abortions.
For assistance with Parts VII and VIII of Regulation 61-12, Moore
turned to William Lafferty (Lafferty), who was the Director of Health
Facilities Construction with DHEC. Like Samuels and Moore, Laf-
ferty has received no formal medical training or education. In drafting
these portions of the regulations, Lafferty made no effort to determine
whether the requirements were medically appropriate for facilities
performing only first trimester abortions. Lafferty also approached the
design and construction requirements from the standpoint of new con-
struction requirements and anticipated that existing facilities would be
grandfathered. The decision to include a mandatory two-year compli-
ance provision in that portion of Regulation 61-12 instead of a grand-
father provision was not made by Lafferty.
According to Moore, the preexisting South Carolina regulation
governing second trimester abortions was utilized as a starting point
for the new regulation, and many of the additional provisions of Reg-
ulation 61-12 were simply adopted or derived from DHEC regulations
governing other types of health care facilities. They included regula-
tions governing ambulatory surgical centers, renal dialysis facilities,
community residential care facilities, day care facilities for adults,
outpatient facilities for chemically dependent persons, habitation cen-
ters for the mentally retarded, residential treatment facilities for chil-
dren and adolescents, nursing homes, and facilities providing home
health care and hospice services. According to the DHEC officials,
DHEC sought to standardize its regulations governing medical facili-
ties and medical care so that the licensing requirements would have
consistent wording, and to codify existing departmental practices.
According to the DHEC officials, this attempt to standardize its regu-
lations and to codify existing practices included DHEC's desire to
grant its inspectors the authority to copy medical records in all medi-
cal facilities. According to Moore, departmental practice currently
allows the copying of medical records during a complaint investiga-
tion. Moreover, Moore testified that DHEC would maintain the confi-
47
dentiality of the records even though there is no provision in
Regulation 61-12 that mandates such confidentiality. 7
Although the DHEC officials testified that they primarily utilized
existing South Carolina regulations as the basis for drafting Regula-
tion 61-12, there is evidence in the record that the DHEC officials
consulted other points of reference. First, Moore obtained copies of
abortion regulations from North Carolina and Tennessee, though he
did not speak with anyone in those states about the regulations or how
they had affected maternal health. Second, Moore reviewed standards
and guidelines issued by the Planned Parenthood Federation of Amer-
ica, Inc. (Planned Parenthood), the National Abortion Federation
(NAF), and the American College of Obstetricians and Gynecologists
(ACOG). The standards and guidelines published by Planned Parent-
hood, NAF, and ACOG are not mandated standards of care which can
or should be imposed on licensed physicians. Rather, they are guide-
lines which should be followed with due regard for the medical judg-
ment of the treating physician and the special needs of the patients
that they serve.
During the drafting process, the general counsel of ACOG wrote
a letter to DHEC expressing concern that the requirements of Regula-
tion 61-12 would not enhance patient well-being or safety and offer-
ing DHEC the assistance of ACOG in the drafting of an appropriate
regulation. The DHEC drafters declined ACOG's assistance.
After an initial draft of Regulation 61-12 was completed, Moore
requested limited input and comments from two medical personnel
associated with DHEC. The first, Dr. Richard Goodrich (Dr. Good-
rich), is a licensed physician, board certified in obstetrics and gyne-
cology, who practiced in Zanesville, Ohio until he retired. After his
retirement, he moved to South Carolina and became a consultant with
DHEC in the area of maternal and child health. During his medical
practice, however, Dr. Goodrich performed only two abortions, both
_________________________________________________________________
7 Interestingly, DHEC's regulation governing ambulatory surgical cen-
ters contains a specific provision protecting the confidentiality of medi-
cal records. See S.C. Code Ann. Regs. 61-91,§ 1001(E) (providing that
records may only be removed from the premises by subpoena or court
order).
48
of which were due to medical complications. Furthermore, Dr. Good-
rich was not asked to and did not draft any portion of Regulation 61-
12. Rather, he was only asked to review discrete portions of the regu-
lation dealing exclusively with medical events and medical testing,
and he conducted no review of and provided no input on the majority
of the regulatory requirements. Although he is of the opinion that the
portions of Regulation 61-12 that he reviewed are appropriate medical
standards of care, he testified that the same standards would be appro-
priate for physicians' offices in which comparable obstetrical and
gynecological surgical procedures are performed. Dr. Goodrich fur-
ther testified that he did not recommend Regulation 61-12's require-
ment of physician qualifications beyond state licensure, and
acknowledged that he did not know how the required"training and
experience" qualifications could be determined under the regulation.
Dr. Goodrich also interpreted Regulation 61-12's requirement that a
registered nurse be "on duty" as requiring that a registered nurse have
ultimate responsibility, and not that a registered nurse should or needs
to be on the premises at all times. Dr. Goodrich further testified that,
while he has no specific experience with medical abortions, it would
not be his intent to cover the provision of medical abortions under the
regulation. He acknowledged, however, that the regulation as drafted
would in fact cover such abortions. Finally, Dr. Goodrich testified
that he is aware of no existing problem with abortion providers in
South Carolina and has no opinion as to how the cost and availability
of abortions affect women's health issues.
Moore also sought some limited input from Robert Lawyer, R.N.
(Lawyer), who was Director of Nursing for DHEC. Lawyer received
his bachelor of science degree in nursing while in the United States
Army, and later received a masters degree in health services manage-
ment and business administration. He has some experience with pro-
viding nursing care for first and second trimester abortions performed
in a military hospital. After retiring from the Army in 1989, Lawyer
began working with DHEC. He is currently nurse manager with the
Division of Health Licensing, where his primary duty is the inspec-
tion of various health care facilities for compliance with existing reg-
ulations. He too was asked by Moore and Samuels to review and
provide input concerning discrete portions of Regulation 61-12, pri-
marily those governing nursing care. Lawyer is of the opinion that,
for first trimester abortions, a registered nurse should either person-
49
ally monitor the patient or supervise all patient care, unless the physi-
cian is present in the abortion clinic and available to come to the
recovery room if necessary. Unlike Dr. Goodrich, however, he inter-
prets Regulation 61-12 as requiring the "on duty" registered nurse to
be on the premises. In formulating his opinion, Lawyer did not con-
duct any research on abortion practices in South Carolina, nor did he
consult with nursing professionals who specialize in abortion proce-
dures. Lawyer testified that while he is aware that Regulation 61-12
would apply to facilities performing only medical abortions, he has
no knowledge of what nursing skills are required in the context of
medical abortions or whether they would require a registered nurse as
opposed to a licensed practical nurse.
With the exception of these limited consultations with medical per-
sonnel associated with DHEC, the drafters of Regulation 61-12 did
not seek any input from medical professionals during the drafting pro-
cess and rejected ACOG's offer of assistance. As some support for
the text of Regulation 61-12, the defendants contend that the drafters
conducted an inspection of Planned Parenthood's abortion clinic in
Columbia, South Carolina and determined that the clinic met the great
majority of Regulation 61-12's requirements. The evidence credited
by the district court, however, reveals that the drafters simply toured
the clinic and, during one such visit, may have spoken briefly to a
Planned Parenthood physician. There is no evidence that the physi-
cian was asked to comment upon the regulatory requirements or
whether they were medically necessary for first trimester abortions.
Moreover, there is no evidence in the record to support a finding that
DHEC received any meaningful input from Planned Parenthood phy-
sicians prior to or during the early stages of the drafting process.
After the initial drafting process was concluded, DHEC issued a
proposed regulation and held public hearings as mandated by South
Carolina law. Some of the suggestions made during this public com-
ment period resulted in changes to Regulation 61-12, including some
suggestions made by Planned Parenthood and the plaintiffs in this
case.
On January 23, 1996, DHEC submitted Regulation 61-12 to the
South Carolina legislature for approval as required by South Carolina
law. Because the legislature took no action on Regulation 61-12
50
within 120 days after its submission, it became effective automati-
cally upon publication in the State Register on June 28, 1996.
E
Based on the evidence presented at trial, the district court made
detailed findings concerning Regulation 61-12 and its probable effect
on the health of women in South Carolina, the cost of obtaining a first
trimester abortion in South Carolina, and the availability for obtaining
a first trimester abortion in South Carolina. First, based on the evi-
dence in the record, the district court found that the first trimester suc-
tion curettage abortion is one of the safest surgical procedures that
can be performed. The procedure lasts approximately two to five min-
utes and has a low overall complication rate. Suction curettage abor-
tions can be, and are currently being, safely performed in physicians'
offices and outpatient clinics, except where the patient has particular
medical conditions that would require the procedure to be performed
in an ambulatory surgical center or hospital. Medical abortions are
also quick medical procedures that can be safely performed in a phy-
sician's office or outpatient clinic. See Greenville Women's Clinic, 66
F. Supp. 2d at 718.
Second, the district court found that physicians' offices and clinics
that provide less than five first trimester abortions per month perform
identical procedures to those which provide five or more first trimes-
ter abortions per month, and the risk to the patient undergoing the
abortion procedure is identical. See id.
Third, the district court found that first trimester suction curettage
abortions are comparable in terms of risks, duration, and invasiveness
to a variety of obstetrical and gynecological surgical procedures
which are frequently performed in physicians' offices in South Caro-
lina. These would include suction curettage procedures performed on
women who have experienced an incomplete spontaneous abortion,
dilation and curettage procedures, endometrial biopsies, hysterosco-
pies, and insertion of intrauterine devices for birth control. See id.
Fourth, the district court found that first trimester suction curettage
abortions are also comparable in terms of risks, duration, and inva-
siveness to a variety of non-obstetrical/gynecological surgical proce-
51
dures that are frequently performed in physicians' offices in South
Carolina. These would include the removal of subcutaneous lipomas
and cysts, minor breast biopsies, and the removal of implanted ports
and catheters which have been inserted into large veins in the neck
and collarbone region for use in administering chemotherapy and
dialysis. See id.
Fifth, the district court found that South Carolina is not currently
experiencing a public health problem related to the provision of first
trimester abortions by licensed physicians, nor was the state experi-
encing such a problem when Regulation 61-12 was promulgated. The
district court found no evidence that the plaintiffs or any other abor-
tion providers in South Carolina are providing inadequate care to
women seeking abortions or that the rate of complications from abor-
tions performed in South Carolina is greater than the national average.
On the contrary, the district court found that South Carolina has expe-
rienced a similar, if not lower, average complication rate. See id. at
718-19.
Sixth, the district court found that, although the principal draftsmen
of Regulation 61-12 have some expertise in hospital and health care
administration, they have no training or education in the provision of
hands-on medical care and little knowledge of the medical needs of
women seeking first trimester abortions in South Carolina. See id. at
719. The district court found that they engaged in virtually no
research, investigation, or other efforts to determine what types of
requirements would be necessary or advisable for the abortion proce-
dure, or what types of requirements would further or hinder the state's
interest in maternal health. Nor did DHEC officials possess or seek
information concerning the present safety of first trimester abortions
or the relative risks associated with the procedure. See id.
Seventh, the district court found that, despite their admitted lack of
medical knowledge in general and of abortion procedures in particu-
lar, the drafters of Regulation 61-12 sought only minimal input and
assistance from knowledgeable medical experts during the drafting
process, choosing to rely solely upon the limited review and advice
of Dr. Goodrich and Lawyer as to discrete portions of the regulation.
See id. Furthermore, DHEC either rejected or ignored an offer by
ACOG to assist in the drafting process. Although DHEC was under
52
no legal obligation to consult with ACOG or to accept their assistance
during the drafting process, the district court found that ACOG is
unanimously considered to be a well-respected medical organization
dedicated to improving the standard of health care in the field of
obstetrics and gynecology. See id. According to the district court,
DHEC's rejection of ACOG's assistance further demonstrated
DHEC's lack of interest in ensuring that Regulation 61-12 actually
met the proffered goal of promoting maternal health and is consistent
with the testimony of the DHEC witnesses that such a goal was not
their primary motivation during the drafting process. See id.
Eighth, the district court found that, although it is uncontroverted
that first trimester abortions are significantly less risky to the health
of women than second trimester abortions, an existing South Carolina
regulation governing second trimester abortions was utilized as a
starting point for Regulation 61-12. With the exception of Section 309
of Regulation 61-12 which specifically pertains to second trimester
abortions,8 the DHEC drafters drew no distinction between first and
second trimester abortions in the text of the regulation. In addition,
the DHEC drafters admitted that virtually no such distinctions were
considered during the drafting process. See id.
Ninth, the district court found that, instead of attempting to tailor
Regulation 61-12 to the particularized medical needs of women seek-
ing first trimester abortion services in South Carolina, DHEC's goal
during the drafting process was to standardize its health care and
facility regulations and to codify existing departmental practices. See
id. at 719-20. According to the district court, to the extent this was
done, it was done without any meaningful inquiry or assessment as
to whether the requirements would further the state's interest in
maternal health and without assessing whether first trimester abor-
tions were comparable to the procedures performed in the other facili-
ties regulated by DHEC. See id. at 720. The district court further
found that clinics that provide first trimester abortions provide ser-
vices that are significantly less risky, invasive, and lengthy than the
_________________________________________________________________
8 Section 309 mandates additional qualifications which the performing
physician must possess, additional equipment which must be on hand,
and additional medical tests which must be administered for second tri-
mester abortions. See S.C. Code Ann. Regs. 61-12, §§ 309(A)-(D).
53
services offered in ambulatory surgical centers, yet many of the
requirements of Regulation 61-12 are as stringent, or in some respects
more stringent, than those imposed upon ambulatory surgical centers.9
See id.
Tenth, the district court found that Planned Parenthood, NAF, and
ACOG standards and guidelines relied upon in part by DHEC are rec-
ommendations by the respective organizations and are not fairly char-
acterized as mandated standards of care which can or should be
imposed upon licensed physicians as regulatory requirements. Rather,
they are guidelines which should be followed with due regard for the
medical judgment of the treating physicians and the special needs of
the patients they serve. Even if some of the existing guidelines could,
in isolation, be appropriate matters for regulation, the district court
found that Regulation 61-12 imposes requirements which greatly
exceed the guidelines. See id.
Eleventh, the district court found that, in imposing the detailed
requirements of Regulation 61-12, the DHEC drafters also failed to
take any meaningful steps to evaluate the costs of compliance or its
impact upon the availability of abortion services in South Carolina.
See id. Based upon the evidence presented, the district court found
that Regulation 61-12 will significantly increase the cost of abortion
services in South Carolina. See id. The district court found that this
_________________________________________________________________
9 In fact, Regulation 61-12 recognizes that the risks and potential com-
plications of surgical procedures typically performed in ambulatory sur-
gical centers are significantly higher than those associated with first
trimester abortions. Under Regulation 61-12, licensed abortion clinics are
restricted to performing abortions through eighteen weeks of pregnancy
measured from the pregnant woman's lmp. See S.C. Code Ann. Regs.
61-12, § 302(A). Abortion clinics performing abortions beyond fourteen
weeks of pregnancy measured from the pregnant woman's lmp must
meet the additional patient requirements in Section 309 of Regulation 61-
12, which requires additional physician qualifications, medical equip-
ment, and mandatory laboratory tests. See id. § 302(B). Abortions
beyond eighteen weeks of pregnancy measured from the pregnant
woman's lmp must be performed in a hospital, although a licensed ambu-
latory surgical center that is also licensed as an abortion clinic may per-
form abortions on patients through twenty-six weeks of pregnancy
measured from the pregnant woman's lmp. See id. § 302(A).
54
increase in the cost of abortion services will delay a significant num-
ber of women from obtaining the procedure and, in some cases, result
in their inability to obtain the procedure. See id. The district court fur-
ther found that, as a pregnancy advances, the medical risks associated
with abortion increase, and a full term pregnancy and childbirth is
much more risky to the physical health of a woman than a first trimes-
ter abortion. See id.
Twelfth, the district court found that Regulation 61-12 contained a
myriad of detailed and costly provisions that were medically unneces-
sary and, thus, were neither designed to further the health of women
seeking first trimester abortions nor likely to accomplish this goal.
For example, with respect to Part I of Regulation 61-12, the district
court observed that its definition of an "abortion" included medical
abortions currently used to terminate ectopic pregnancies. See id. at
721. However, all of the evidence in the record, including the testi-
mony of Dr. Goodrich, suggested that Regulation 61-12's stringent
requirements were medically unnecessary for a physician or abortion
clinic that performed only medical abortions.
With respect to Part II, the district court found that this portion of
Regulation 61-12 is permeated with unnecessary requirements gov-
erning physician qualifications, staffing, and staff training. See id.
The district court observed that Regulation 61-12 requires physicians
and clinics to hire a registered nurse to supervise all nursing care in
the abortion clinic regardless of the fact that a licensed physician is
present in the clinic to supervise all medical care, including nursing
care. See id. The district court found that it is within accepted medical
practice, both within the abortion context and in physicians' offices
performing comparable surgical procedures, for a physician to hire
licensed practical nurses (who command a lower salary than regis-
tered nurses) so long as they act under the supervision of the attending
physician. See id. The district court found that the defendants offered
no persuasive reason why a physician could not supervise the nursing
care of patients during the recovery process simply because the physi-
cian may be in another room for a brief period of time. See id. In
making this finding, the district court recognized that even DHEC's
own medical consultant, Dr. Goodrich, opined that a registered nurse
need not be on the premises to supervise care--only that the nurse
have overall supervisory duties. See id.
55
Also with respect to Part II, the district court found that Part II's
requirement that all abortion clinic health care personnel receive
tuberculin skin testing is medically unnecessary in view of the fact
that DHEC has not required such testing of all health care personnel
and did not offer any justification for arbitrarily requiring this testing
of all abortion care workers, but not all other health care workers. See
id. at 722.
The district court also found that Regulation 61-12's requirement
that all allied health care personnel in abortion clinics receive CPR
training, as opposed to having one qualified person at the clinic at all
times, was medically unnecessary in view of the fact that this require-
ment is imposed solely upon abortion providers who perform, accord-
ing to all of the witnesses, one of the safest surgical procedures that
is performed in this country, and DHEC did not offer any justification
for arbitrarily imposing this requirement. See id.
With respect to Part III, the district court found that the level of
policies and procedures required by this part, as well as the extensive
in-service training requirements and other policies required in Part II,
are costly endeavors unsubstantiated by a medical need. See id. The
district court observed that such requirements may be appropriate for
large medical care facilities with large staffs that do not interact on
a daily basis. See id. However, according to the district court, Regula-
tion 61-12 arbitrarily imposes it upon every clinic and every physi-
cian's office which performs five or more first trimester abortions per
month--regardless of the number of staff or hours of operation. See
id.
The district court also found that it was medically unnecessary to
have every woman undergo (and pay for) testing for certain sexually
transmitted diseases (but not others), without regard to whether such
tests are medically indicated and indeed even when the physician
determines that they are not, simply because the woman has chosen
to obtain a first trimester abortion from a physician who performs
them on a regular basis.10 See id. The district court further found that
_________________________________________________________________
10 Of note, the district court found that the defendants presented insuffi-
cient evidence to support a finding that sexually transmitted diseases are
more prevalent in woman seeking abortions or that abortion clinics pres-
ent a public health problem in this regard. See Greenville Women's
Clinic, 66 F. Supp. 2d at 733 n.16.
56
Section 307's requirement that abortion providers have "consulting"
arrangements with various specialists before they can obtain a license
to operate is medically unnecessary and unduly burdensome because
no evidence was presented relating to why licensed physicians are not
capable of exercising appropriate discretion in recognizing and acting
upon the medical needs of their patients in this regard. See id. at 722-
23.
Also with respect to Part III, the district court found that Regula-
tion 61-12 inexplicably imposes requirements concerning access to
emergency drugs which are not imposed upon any other physicians.
See id. at 723. The district court also found that the equipment and
supplies required by Regulation 61-12 will also increase the costs of
providing abortions in South Carolina, and require equipment unnec-
essary for the safe performance of the first trimester abortion proce-
dure. See id.
With respect to Part IV, the district court found that this part of
Regulation 61-12 was particularly troubling. For example, the district
court found that the requirement that a woman seeking an abortion
provide the name of her spouse in addition to an emergency contact
is a medically unnecessary requirement which imposes a substantial
obstacle in the path of a woman who, for personal reasons, may not
wish to disclose this information. See id. The district court also found
that, although the abortion clinic was required to keep patient records
confidential, nothing prohibited DHEC from publicizing these records
once it obtained them pursuant to an inspection. See id. at 702.
With respect to Part VIII, the district court observed that this part
of Regulation 61-12 imposed extensive and detailed design and con-
struction requirements for abortion facilities, which far exceed build-
ing code requirements applicable to other physicians' offices,
including those that perform identical and comparable procedures.
See id. at 723. The district court found that these extensive require-
ments, while perhaps appropriate for a hospital or large ambulatory
surgical center, are not justified by expected medical benefits to the
women undergoing the relatively safe, first trimester suction curettage
abortion in a small physician's office or clinic. See id.
Also with respect to Part VIII, the district court found that addi-
tional requirements, which were advanced as unique to the medical
57
field, had no justification in medical necessity. For example, the dis-
trict court found no evidence supporting a need for an abortion clinic
to install additional bathroom equipment and emergency call buttons
or that it have a recovery area separate from the procedure area. See
id. at 724. The district court further found that no credible evidence
was presented demonstrating that physicians should be required to
widen their doors and corridors to a width sufficient to accommodate
both an ambulance stretcher and a person walking alongside to per-
form cardiopulmonary resuscitation, particularly given the unanimous
testimony that a first trimester abortion is a relatively safe procedure
with infrequent complications. See id. The district court found no evi-
dence that this need had ever arisen from the performance of a first
trimester abortion in South Carolina or elsewhere. See id. Finally, the
district court observed that physicians performing surgical procedures
of comparable invasiveness and risk are not required to renovate their
offices to meet a similar requirement. See id.
With respect to Part IX, the district court found that this part of
Regulation 61-12 required numerous certifications and laboratory test
results concerning various parts of the abortion clinic (such as the car-
pets and draperies) without any evidence that the these requirements
would further the goal of protecting women's health in South Caro-
lina. See id.
With respect to Part X, the district court observed that, in conjunc-
tion with Section 103(C), Part X grants to DHEC unfettered power to
"manage[ ]" abortion providers "in accordance with the best practices
as interpreted by the Department," S.C. Code Ann. Regs. 61-12, Part
X, and to cite providers with a Class III violation and penalty if
DHEC observes a condition deemed to be "against the best practices
as interpreted by the Department," id.§ 103(C). The district court
found that Part X imposed upon abortion providers the additional bur-
den of determining and complying with standards or practices not
specified in the regulation, but which DHEC may in the future find
to be "best" for an abortion clinic. See Greenville Women's Clinic, 66
F. Supp. 2d at 724.
Finally, the district court found that a first trimester suction curet-
tage abortion in South Carolina currently costs between $325 and
$480, depending on the gestational age, the type of sedation or anes-
58
thesia needed, and the medical testing indicated. See id. at 717. The
district court further found that Regulation 61-12 would raise the cost
of each abortion performed by the plaintiffs in the following ranges:11
(1) For CWMC, the cost will increase between $36.48 and
$75.03;
(2) For Dr. Lynn's Greenville practice, the cost will
increase between $93.09 and $170.39;
(3) For Dr. Lynn's Beaufort practice, the cost will increase
between $115.67 and $367.50;
(4) For GWC, the cost will increase between $22.68 and
$32.39.12
See id. The district court found that the substantial alterations that Dr.
Lynn would have to undertake to bring his Beaufort practice in com-
pliance with Regulation 61-12 will likely force him to close his prac-
_________________________________________________________________
11 The lowest figure represents the defendants' revision of the plain-
tiffs' estimates of complying with Regulation 61-12. The highest figure
represents the plaintiffs' estimate. The district court observed that neither
figure, however, takes into account the standard 15% profit factor which
the plaintiffs' accountant testified would be appropriate. See Greenville
Women's Clinic, 66 F. Supp. 2d at 717 n.10.
12 At trial, the parties entered into several notable stipulations concern-
ing the cost of complying with certain specific provisions of Regulation
61-12:
(1) When directly billing physicians, laboratories in South Car-
olina generally charge between $20 and $40 per sample to
perform a combined test for chlamydia and gonorrhea.
(2) When directly billing physicians, laboratories in South Car-
olina generally charge between $17 and $30 per sample to
test for the Du variant.
(3) When directly billing physicians, laboratories in South Car-
olina charge between $7 and $20 per sample to perform a
test for syphilis and between $10 and $22 to perform a test
from a pap smear.
59
tice, thereby eliminating the availability of abortions in this area of
South Carolina.13 See id. The district court also found that the
increased cost of providing abortions and/or the closure of the only
abortion clinic in one area of a state resulting from Regulation 61-12
will prevent a significant number of women from obtaining an abor-
tion or, at a minimum, delay them from obtaining the abortion, both
of which carry increased risks to the health of women.14 See id. at
718. The district court found that, as a pregnancy advances, the medi-
cal risks associated with an abortion procedure increase, and a full
term pregnancy is more risky to the physical health of a woman than
a first trimester abortion. See id. at 720.
_________________________________________________________________
13 At trial, the plaintiffs presented evidence that, to comply with Regu-
lation 61-12, CWMC would require renovations costing approximately
$27,235, that Dr. Lynn's Greenville practice would require renovations
costing approximately $2,700, that Dr. Lynn's Beaufort office would
need renovations costing approximately $12,256, and that GWC would
need renovations costing approximately $3,700.
14 The district court's finding in this regard was premised on the testi-
mony of the plaintiffs' expert, Dr. Stanley Henshaw, who is currently
deputy director of research at the Alan Guttmacher Institute in New
York, where he conducts studies relating to family planning and abortion
services. Dr. Henshaw testified that an increase in the price of abortion
procedures prevents a number of women from obtaining abortions and
causes other women to delay their abortions until further along into their
pregnancies. Dr. Henshaw also testified that relatively small increases in
the cost of an abortion will have this effect, and that an increase of just
$25 can be expected to prevent one or two out of every 100 low-income
women seeking an abortion from being able to obtain one. Dr. Henshaw
also testified that a decrease in the number of abortion providers in South
Carolina will result in a decrease in the number of women who are able
to obtain an abortion in the state, and a corresponding increase in the
number of women who must travel to obtain the procedure, e.g., from
Beaufort to Savannah, Georgia and/or Charleston, South Carolina. Such
a need to travel will, in turn, reduce the ability to obtain an abortion or
result in a delay in obtaining the abortion. And the need to travel carries
its own costs, which will increase the overall cost of obtaining the abor-
tion and compound the financial problem.
60
F
Based on the findings of the district court summarized above, the
district court concluded that Regulation 61-12 violated the Due Pro-
cess and Equal Protection Clauses of the Fourteenth Amendment. See
id. at 724-43. With respect to the Due Process Clause, the district
court held that Regulation 61-12 failed to pass constitutional muster
under either the facial invalidity standard set forth in United States v.
Salerno, 481 U.S. 739 (1987), or the undue burden test set forth in
Planned Parenthood v. Casey, 505 U.S. 833 (1992) (plurality joint
opinion of O'Connor, Kennedy, and Souter, J.J.). See Greenville
Women's Clinic, 66 F. Supp. 2d at 727-37. With respect to the undue
burden standard set forth in Casey, the district court held that Regula-
tion 61-12 did not serve and was not designed to serve the state's
interest in maternal health. See id. at 730-35. To the contrary, the dis-
trict court concluded that Regulation 61-12 would likely harm the
health of women in South Carolina. See id. Accordingly, the district
court concluded that Regulation 61-12 was unconstitutional under
Casey. See id. at 735. The district court also concluded that even if
Regulation 61-12 furthered the state's interest in maternal health, the
burdens imposed by Regulation 61-12 upon abortion patients and pro-
viders constituted an undue burden on a woman's right to have an
abortion prior to viability. See id. at 735-43. With respect to the stan-
dard set forth in Salerno, the district court concluded that Regulation
61-12 was unconstitutional in all of its applications and, therefore,
could not stand under Salerno. See id. at 736-43.
With respect to the Equal Protection Clause, the district court held
that Regulation 61-12 violated the Equal Protection Clause under both
the strict scrutiny test and the more lenient rational basis test. See id.
at 737-43. With respect to the rational basis test, the district court held
that Regulation 61-12 failed that test because it singles out physicians
and abortion clinics performing five or more first trimester abortions
per month from other physicians and clinics performing four or less
first trimester abortions per month and/or other virtually identical pro-
cedures and places additional and onerous burdens upon physicians
and abortion clinics which are neither justified by actual differences
nor rationally related to the state's legitimate interest in protecting the
health and safety of women seeking first trimester abortions. See id.
at 740-43.
61
Finally, the district court concluded, in light of both South Carolina
law and the text of Regulation 61-12, that Regulation 61-12 was not
subject to the doctrine of severability.15 See id. at 743-44.
II
A
The Due Process Clause of the Fourteenth Amendment states that:
"nor shall any State deprive any person of life, liberty, or property,
without due process of law." U.S. Const. amend. XIV, § 1. "Although
a literal reading of the Clause might suggest that it governs only the
procedures by which a State may deprive persons of liberty, . . . the
Clause has been understood to contain a substantive component as
well, one barring certain government actions regardless of the fairness
of the procedures used to implement them." Casey, 505 U.S. at 846
(plurality joint opinion of O'Connor, Kennedy, and Souter, J.J.) (cita-
tion and internal quotation marks omitted). A woman's right to have
an abortion is recognized as a fundamental right protected by the sub-
stantive component of the Due Process Clause of the Fourteenth
Amendment. See Roe v. Wade, 410 U.S. 113, 155-66 (1973); see also
Manning v. Hunt, 119 F.3d 254, 259 (4th Cir. 1997).16
In Roe, the Supreme Court overturned a Texas statute prohibiting
abortions unless an abortion was necessary to save the life of the
mother. See 410 U.S. at 117-18. The Roe Court held that the right of
personal privacy includes the right to have an abortion, but that the
right "is not unqualified and must be considered against important
state interests in regulation." Id. at 154. The Court determined that
_________________________________________________________________
15 In light of its ruling that Regulation 61-12 violated the Due Process
and Equal Protection Clauses of the Fourteenth Amendment, the district
court declined to address the plaintiffs' remaining claims that Regulation
61-12: (1) was unconstitutionally vague; (2) violated the abortion
patients' confidentiality rights; and (3) violated the Establishment Clause
of the First Amendment.
16 Because Regulation 61-12 applies to first trimester abortion provid-
ers, the plaintiffs have standing to challenge the constitutionality of the
regulation. See Virginia v. Am. Booksellers Ass'n, 484 U.S. 383, 392
(1988); Doe v. Bolton, 410 U.S. 179, 188 (1973).
62
because abortion is a fundamental right, state abortion regulations
should be analyzed under the strict scrutiny standard of review, and
are, therefore, valid only if the regulation can be justified by a com-
pelling state interest and if the regulation was narrowly drawn to fur-
ther only that legitimate state interest. See id. at 155. According to the
Court, the state's interest in preserving and protecting the health of
the mother and in protecting potential human life increase in substan-
tiality as the woman approaches term, becoming compelling at some
point in the pregnancy. See id. at 162-63.
The Roe Court found that during the first trimester of pregnancy
the decision to abort must be left to the wishes of the mother and the
judgment of the mother's physician; that during the time after the first
trimester but before viability of the fetus, the state could regulate the
abortion decision in ways reasonably related to maternal health; and
that after viability, the state could regulate or proscribe abortion
except when necessary to preserve the life or health of the mother.
See id. at 164-65.
Since Roe, the Court has struggled to formulate a precise standard
for reviewing facial challenges to abortion regulations. In Salerno, the
Court explained that
[a] facial challenge to a legislative Act is, of course, the
most difficult challenge to mount successfully, since the
challenger must establish that no set of circumstances exists
under which the Act would be valid. The fact that[an Act]
might operate unconstitutionally under some conceivable set
of circumstances is insufficient to render it wholly invalid,
since we have not recognized an "overbreadth" doctrine out-
side the limited context of the First Amendment.
481 U.S. at 745. Thus, under Salerno, a facial challenge to a statute
will fail if the statute has any constitutional application. Following
Salerno, the Supreme Court applied Salerno 's "no set of circum-
stances" test in a few pre-Casey cases involving abortion statutes. See,
e.g., Rust v. Sullivan, 500 U.S. 173, 183 (1991).
In Casey, however, the Court held that an abortion law is unconsti-
tutional on its face if, "in a large fraction of the cases in which [the
63
statute] is relevant, it will operate as a substantial obstacle to a
woman's choice to undergo an abortion." 505 U.S. at 895. Although
Casey did not expressly overrule Salerno, it is inconsistent with
Salerno. Under Salerno, no factual showing of unconstitutional appli-
cation can render a law unconstitutional if it has any constitutional
application. Under Casey, a factual showing of unconstitutional appli-
cation in "a large fraction of the cases" where the law applies can ren-
der a law unconstitutional, even if it has some constitutional
application.
In Casey's wake, many circuit courts held that Casey displaced
Salerno in the abortion context. See, e.g. , Planned Parenthood v.
Lawall, 180 F.3d 1022, 1027 (9th Cir.) ("In light of our previous sug-
gestion, combined with the great weight of authority holding that
Casey has overruled Salerno in the context of facial challenges to
abortion statutes, we apply Casey's undue burden standard in deter-
mining the facial constitutionality of [the statute at issue]."), amended
by 193 F.3d 1042 (9th Cir. 1999); Women's Med. Prof'l Corp. v.
Voinovich, 130 F.3d 187, 193-96 (6th Cir. 1997) (concluding that
Salerno is inapplicable to facial challenges to abortion regulations and
applying Casey's undue burden standard), cert. denied, 523 U.S. 1036(1998); Jane L. v. Bangerter, 102 F.3d 1112, 1116 (10th Cir. 1996)
(noting the difference between Casey and Salerno and applying
Casey's undue burden standard to facial abortion challenge); Planned
Parenthood v. Miller, 63 F.3d 1452, 1458 (8th Cir. 1995) (choosing
to follow "what the Supreme Court actually did--rather than what it
failed to say--and apply the undue-burden test" to facial abortion
challenge); Casey v. Planned Parenthood, 14 F.3d 848, 863 n.21 (3d
Cir. 1994) (noting that Supreme Court in Casey "set a new standard
for facial challenges to pre-viability abortion laws"). The Fifth Circuit
has applied the Salerno test to a facial abortion challenge after Casey,
see Barnes v. Moore, 970 F.2d 12, 14 (5th Cir. 1992), but its applica-
tion of Salerno has not been consistent, see Sojourner T. v. Edwards,
974 F.2d 27, 29-31 (5th Cir. 1992) (striking down statute banning
abortions as clearly unconstitutional under Casey, even though it per-
mitted abortions to save the life of the mother and, therefore, arguably
passed constitutional muster under Salerno), and the Fifth Circuit has
yet to resolve the inconsistency. See Okpalobi v. Foster, 190 F.3d
337, 354 (5th Cir. 1999) (noting inconsistency but declining to
64
address it because challenged law failed under both Casey and
Salerno).
However, our circuit never resolved the Salerno /Casey question,
despite what the majority might have one believe. See ante at 12-13.
In Manning, we applied the Salerno standard of review to an abortion
statute, but the plaintiffs did not challenge its applicability. See 119
F.3d at 268 n.4. In dicta, however, the court suggested that we would
nonetheless apply the Salerno standard until the Supreme Court
explicitly overruled it, stating that
[i]t is not the province of the court of appeals to predict how
the Supreme Court will ultimately rule on an issue. Casey
does not specifically overrule Salerno. At the moment, the
most that can be said is that three Justices have indicated a
desire to do so. Until the Supreme Court specifically does
so, though, this Court is bound to apply the Salerno standard
as it has been repeatedly applied in the context of other
abortion regulations reviewed by the Supreme Court.
Id.; see also Planned Parenthood v. Camblos, 155 F.3d 352, 381 n.14
(4th Cir. 1998) (en banc) (noting the Manning dicta but not deciding
the question), cert. denied, 525 U.S. 1140 (1999); id. at 389 n.2
(Michael, J., concurring in the judgment) (asserting that Casey's
undue burden test must be applied to facial challenges to abortion
restrictions).
The Salerno/Casey question was finally resolved by the Supreme
Court in Stenberg v. Carhart, No. 99-830, 2000 WL 825889 (U.S.
June 28, 2000). In that case, a Nebraska physician brought a facial
challenge to Nebraska's "partial birth" abortion statute. As interpreted
by the Supreme Court, the Nebraska statute banned the performance
of second trimester dilation and extraction (D & X) abortions, com-
monly referred to as "partial birth abortions," and the performance of
dilation and evacuation (D & E) abortions, the most commonly used
method for performing previability second trimester abortions. The
Supreme Court applied Casey and concluded that the Nebraska statute
was unconstitutional for two independent reasons. First, the Court
concluded that the Nebraska statute was unconstitutional because the
statute lacked any exception for the preservation of the health of the
65
mother and the record evidence disclosed that, in some circumstances,
a D & X abortion would be the safest abortion. See Stenberg, No. 99-
830, 2000 WL 825889, at *10-14. Second, the Court concluded that,
because the Nebraska law applied to the performance of D & E abor-
tions, the most commonly used method for performing previability
second trimester abortions, the resulting fear of prosecution, convic-
tion, and imprisonment felt by physicians who perform D & E abor-
tions amounted to an undue burden on a woman's right to have an
abortion. See id. at *15-19.
In this case, the district court did not resolve the Salerno/Casey
question. See Greenville Women's Clinic, 66 F. Supp. 2d at 726-27.
Instead, the district court analyzed Regulation 61-12 under both stan-
dards and held that Regulation 61-12 failed to pass constitutional
muster under either the Salerno or Casey standard. See id. at 727-37.
Here, being bound by Stenberg, I only need to evaluate Regulation
61-12 under the principles set forth in Casey , as contrary to the major-
ity's intimation, see ante at 12-13, Salerno, in the abortion context,
is not recognized as the law by the current Supreme Court.
In Casey, the Supreme Court established the undue burden test for
determining whether a statute restricting abortions could pass consti-
tutional muster. Under Casey, a statute is invalid on its face if it
places an undue burden on a woman's right to have an abortion before
the fetus attains viability. See 505 U.S. at 878. An undue burden
exists if the state regulation has the effect of placing a substantial
obstacle in the path of a woman's choice to obtain an abortion before
the fetus attains viability. Id. at 877-78. A statute that creates a sub-
stantial obstacle for a large fraction of those women affected by the
regulation creates an undue burden and is facially unconstitutional.
See id. at 894-95. Thus, in Casey, the Court rejected Roe's trimester
framework, but left intact a woman's fundamental right "to choose to
have an abortion before viability and to obtain it without undue inter-
ference from the state." Id. at 846. In reaching this conclusion, the
Court recognized that the state's interests prior to viability "are not
strong enough to support a prohibition of abortion or the imposition
of a substantial obstacle to the woman's effective right to elect the
procedure." Id.
In Casey, the Supreme Court was presented with constitutional
challenges to various provisions in a Pennsylvania statute governing
66
informed consent, parental consent, record-keeping and reporting
requirements, and a medical emergency exception. See id. at 844.
Thus, the plurality opinion primarily focused on the state's legitimate
interests in the potentiality of human life--holding that to promote
this "profound interest in potential life, throughout pregnancy the
State may take measures to ensure that the woman's choice is
informed, and measures designed to advance this interest will not be
invalidated so long as their purpose is to persuade the woman to
choose childbirth over abortion" and they do not impose an "undue
burden on the right." Id. at 878.
Nevertheless, the Casey plurality also provided guidance by
addressing the state's concomitant, and equally legitimate, interest in
preserving and protecting the health of women seeking abortion
services--of particular relevance to the challenge in this case. Specifi-
cally, the Casey plurality held that as
with any medical procedure, the State may enact regulations
to further the health or safety of a woman seeking an abor-
tion. Unnecessary health regulations that have the purpose
or effect of presenting a substantial obstacle to a woman
seeking an abortion impose an undue burden on the right.
Id. at 878 (emphasis added).
The types of burdens that may be imposed by state regulation are
varied in nature, but clearly include financial burdens which restrict
or prohibit the exercise of the right. As noted by the Casey plurality:
Numerous forms of state regulation might have the inciden-
tal effect of increasing the cost or decreasing the availability
of medical care, whether for abortion or any other medical
procedure. The fact that a law which serves a valid purpose,
one not designed to strike at the right itself, has the inciden-
tal effect of making it more difficult or more expensive to
procure an abortion cannot be enough to invalidate it. Only
where the state regulation imposes an undue burden on a
woman's ability to make the decision does the power of the
State reach into the heart of the liberty protected by the Due
Process Clause.
67
Id. at 874; see also id. at 901. Furthermore, "[n]ot all burdens on the
right to decide whether to terminate a pregnancy will be undue." Id.
at 876. As the Casey plurality noted:
A finding of an undue burden is a shorthand for the conclu-
sion that a state regulation has the purpose or effect of plac-
ing a substantial obstacle in the path of a woman seeking an
abortion of a nonviable fetus. A statute with this purpose is
invalid because the means chosen by the State to further the
interest in potential life must be calculated to inform the
woman's free choice, not to hinder it. And a statute which,
while furthering the interest in potential life or some other
valid state interest, has the effect of placing a substantial
obstacle in the path of a woman's choice cannot be consid-
ered a permissible means of serving its legitimate ends.
Id. at 877. Accordingly, the court must first determine whether Regu-
lation 61-12 furthers the state's interest in maternal health, which is
the state interest the defendants contend Regulation 61-12 was
designed to serve. See id.; id. at 900-01 ("The collection of informa-
tion with respect to actual patients [which, under the statute at issue,
will remain confidential] is a vital element of medical research, and
so it cannot be said that the requirements serve no purpose other than
to make abortions more difficult."). If Regulation 61-12 furthers the
state's interest in maternal health, the court must next determine
whether Regulation 61-12 imposes an undue burden on a woman's
right to seek an abortion. See id. at 877, 901.
In this case, a careful review of the record discloses that Regulation
61-12 does not further the state's interest in maternal health. With
respect to whether Regulation 61-12 furthers the state's interest in
maternal health, I note that the Supreme Court has not provided much
guidance in this area. However, several pre-Casey cases do provide
some insight. For example, in Roe's companion case, Doe v. Bolton,
the Court invalidated a Georgia law requiring that all first trimester
abortions be performed in a licensed hospital where the state failed to
show that only the hospital environment could ensure the quality of
the operation and the protection of the patients. See 410 U.S. at 195.
In Akron v. Akron Center for Reproductive Health, Inc., 462 U.S.
416 (1983), the Supreme Court was presented with a challenge to an
68
Ohio ordinance which, among other things, required all second tri-
mester abortions to be performed in a hospital. See id. at 422. Reaf-
firming the prohibition against over regulation of a relatively safe
surgical procedure, the Court held that the
[s]tate's discretion to regulate on [the basis of maternal
health] does not . . . permit it to adopt abortion regulations
that depart from accepted medical practice. . . . If a State
requires licensing or undertakes to regulate the performance
of abortions during this period, the health standards adopted
must be legitimately related to the objective the State seeks
to accomplish.
Id. at 431 (citation and internal quotation marks omitted). The Court
then invalidated the ordinance, holding that it"imposed a heavy, and
unnecessary, burden on a woman's access to a relatively inexpensive,
otherwise accessible, and safe abortion procedure." Id. at 438.17
From the above discussion, it is evident that the State of South Car-
olina has a legitimate interest from the outset of pregnancy in protect-
ing the health of women seeking abortions, and that this interest is
sufficiently important to allow the state to regulate abortion providers,
including providers that limit their services to abortions during the
first trimester. See Casey, 505 U.S. at 876. Furthermore, this interest
allows the state to regulate, within the boundaries of Casey and its
predecessors, such matters as the qualifications of the person perform-
ing the procedure, the facilities in which the abortions are performed,
and the availability of medical care after the procedure and in the
event of an emergency. See Roe, 410 U.S. at 149-50. However, Casey
and its predecessors teach us that health regulations which are unnec-
essary, i.e., not reasonably related to maternal health or which depart
from accepted medical practice, cannot withstand constitutional scru-
_________________________________________________________________
17 The Supreme Court in Casey overruled only those parts of Akron that
were "inconsistent with Roe's statement that the state has a legitimate
interest in promoting the life or potential health of the unborn." Casey,
505 U.S. at 870. Thus, the Akron decision continues to inform us as to
the propriety of regulations purportedly enacted to further the state's
interest in maternal health.
69
tiny and must be invalidated. See Casey, 505 U.S. at 878; Akron, 462
U.S. at 431.
In my view, Regulation 61-12 is riddled with unnecessary require-
ments, i.e., requirements not reasonably related to maternal health or
which depart from accepted medical practice. For example, Regula-
tion 61-12's requirement that each abortion patient be tested for par-
ticular sexually transmitted diseases is not an accepted medical
practice where there are no symptoms or other accepted medical rea-
sons or risk factors to justify such a test.18 Also, Regulation 61-12
requires an abortion clinic to perform urine pregnancy tests on all
abortion patients, including those whose pregnancy have been con-
firmed by other means, e.g., ultrasound. In addition, Regulation 61-12
places medically unnecessary administrative requirements on abortion
clinics which are clearly inappropriate to medical offices of such
small sizes as the plaintiffs' offices. For example, DHEC has
mandated--without regard to the number of staff or size of the abor-
tion clinic--the development of extensive policies and procedures,
frequent staff meetings, formal in-service training and required staff
certifications, and medical testing of employees which, while proba-
bly appropriate for a hospital or a large outpatient surgical center, are
unnecessary in a small physician's office or clinic. Furthermore, there
is no evidence in the record demonstrating how Regulation 61-12's
construction and design requirements will further the health of
women seeking abortions in South Carolina, and no explanation is
offered as to why all of these requirements are so much greater for
these clinics than they are for other physicians' offices performing the
same type of procedures.
Another requirement which is not an accepted medical practice is
Regulation 61-12's requirement that a registered nurse, as opposed to
a licensed physician, supervise nursing care. There is no evidence in
the record to suggest that a physician is not capable of supervising
nursing care. In addition, Regulation 61-12 requires that an abortion
clinic "be kept . . . free from odors" and that all outside areas "be kept
_________________________________________________________________
18 In the district court, the defendants argued that selected diseases are
more prevalent in women seeking abortions or that abortion clinics pres-
ent a public health problem in this regard. However, the district court
found insufficient credible evidence to support such a finding.
70
free of rubbish, grass, and weeds that may serve . .. as a haven for
insects, rodents and other pests." S.C. Code Ann. Regs. 61-12, §§ 604
and 606. However, there is no evidence in the record suggesting that
these requirements would ensure the quality of a first trimester abor-
tion procedure or the protection of patients.
The same can be said about Part X of Regulation 61-12 which
grants DHEC the authority to impose penalties for any condition
which, while not mandated or prohibited by Regulation 61-12, DHEC
deems to be "against the best practices" as later defined by DHEC. Id.
Part X. Obviously, Part X of Regulation 61-12 subjects physicians to
unnecessary uncertainty in the operation of their practices and invites
arbitrary enforcement. Finally, it is not an accepted medical practice
to permit a state agency, such as DHEC, to enter an abortion clinic,
copy records, and disseminate them publicly, but this is precisely
what Regulation 61-12 allows.19
_________________________________________________________________
19 The majority implies that Regulation 61-12 requires DHEC to treat
all abortion patient records as confidential. See ante at 23-24. However,
Regulation 61-12 imposes no such requirement on DHEC. Rather, under
Regulation 61-12, only the abortion clinic must treat patient records as
confidential. See S.C. Code Ann. Regs. 61-12, § 402. Succinctly put,
Regulation 61-12 allows DHEC to enter an abortion clinic, inspect its
records, and make photocopies of these records, see id. § 102(F), and
Regulation 61-12 places no limitation on DHEC's use of the records
once photocopies are made. Thus, Regulation 61-12 differs markedly
from the provisions upheld by the Supreme Court in Whalen v. Roe, 429
U.S. 589 (1977), and Planned Parenthood v. Danforth, 428 U.S. 52(1976), two cases cited by the majority. See ante at 23-24. In each of
these cases, the statute at issue required the state agency which had
access to the patient records to treat the records as confidential and/or
significantly limited the state agency's use of the patient records. See
Whalen, 429 U.S. at 594 (New York statute had extensive measures to
insure records remained confidential and provided that the public disclo-
sure of the identity of patients was expressly prohibited); Danforth, 428
U.S. at 79-81 (Missouri statute mandated that patient information
required on patient forms was confidential and to be used only for statis-
tical purposes). In my view, Regulation 61-12 is more akin to a provision
of a Pennsylvania statute rejected by the Supreme Court in Thornburgh
v. American College of Obstetricians and Gynecologists, 476 U.S. 747(1986); in that case, even though the Pennsylvania law under review
71
In summary, Regulation 61-12 does not further the state interest of
protecting maternal health. In fact, Regulation 61-12 has the opposite
effect. As found by the district court, Regulation 61-12 will substan-
tially increase the cost of abortions in South Carolina because Regula-
tion 61-12 requires unnecessary tests be performed, unnecessary staff
be hired, and, in some cases, extensive renovations to existing facili-
ties be made. Because Regulation 61-12 will result in a substantial
increase in the cost of obtaining an abortion in South Carolina, a sig-
nificant number of women will be forced to either delay having an
abortion, or forego having one altogether. This, in turn, will result in
increased health risks to women seeking abortions. Accordingly, Reg-
ulation 61-12 serves no other purpose than to make abortions more
difficult to obtain, and, therefore, Regulation 61-12 violates the Due
Process Clause of the Fourteenth Amendment. See Casey, 505 U.S.
at 877; id. at 900-01.
The majority concludes that Regulation 61-12 was designed to fur-
ther the State of South Carolina's interest in maternal health largely
on the basis that Regulation 61-12 is generally compatible with
accepted medical practice governing abortions, more specifically, the
guidelines promulgated by ACOG and NAF. See ante at 17-20. The
majority's analysis ignores the significant departures that Regulation
61-12 makes from those guidelines, the attendant costs associated
with those departures, and the effect of those costs on the availability
of abortions in the State of South Carolina. Regulation 61-12 goes far
beyond the recommendations of ACOG and NAF, and, in some cases
conflicts with them. Thus, while the ACOG and NAF guidelines
address physical plant and equipment needs in abortion clinics, they
do not suggest or support the extensive plant and equipment require-
ments (such as mandating numerous separate rooms or areas, utility
_________________________________________________________________
stated that patient reports were not public records, Pennsylvania law per-
mitted the reports, which contained both information about the women
who obtained abortions and information about the doctors who per-
formed them, to be made public and also did not limit the Common-
wealth's use of patient information. See id. at 764-68. One other point on
the issue of confidentiality is worth noting. Both the guidelines of the
NAF and ACOG prohibit the release of any medical record without the
patient's consent.
72
sinks, and specific air exchanges, sheltered entryways, special jani-
tor's closets) included in Regulation 61-12. Similarly, the ACOG and
NAF guidelines do not contain any recommendations supporting the
staffing requirements imposed by Regulation 61-12. For example,
none of the guidelines require that a registered nurse supervise nurs-
ing care in an abortion facility if the attending physician is able to
supervise that care. In addition, the ACOG and NAF guidelines do
not support the testing requirements imposed by Regulation 61-12;
specifically, they do not call for any routine testing of abortion
patients other than for Rh factor and anemia, and they state that sexu-
ally transmitted disease testing should be performed on the basis of
risk factors. Likewise, while the ACOG guidelines address the admin-
istration of abortion clinics, they do not require the extensive written
policies, procedures, and formal meetings required by Regulation 61-
12. Also, the ACOG and NAF guidelines forbid the release of any
medical information from a patient's record without the prior consent
of the patient, thus conflicting with Regulation 61-12's mandate that
abortion providers permit DHEC to copy and remove patient records.
In addition, while the ACOG and NAF guidelines recommend that
counseling be offered, Regulation 61-12 requires something very dif-
ferent. It mandates the establishment of relationships with outside
specialists in various areas to whom patients can be referred. Finally,
it should be noted that the district court found as a fact that the ACOG
and NAF guidelines were just that, guidelines. They are not mandates.
The upshot of this discussion is that the departures from the ACOG
and NAF guidelines listed above, coupled with many others not dis-
cussed, result in a substantial increase in the cost of obtaining an
abortion in the State of South Carolina. As noted above, because Reg-
ulation 61-12 will result in a substantial increase in the cost of obtain-
ing an abortion in South Carolina, a significant number of women will
be forced to either delay having an abortion, or forego having one
altogether. Also, the costs will likely force the closure of Dr. Lynn's
Beaufort office, which will result in the elimination of abortion ser-
vices in that part of South Carolina. Under such circumstances, one
must conclude that Regulation 61-12 does not further the State of
South Carolina's interest in maternal health.
Even if Regulation 61-12 furthers the state interest of protecting
and preserving the health of women seeking abortions, Regulation 61-
73
12 cannot stand if it imposes an undue burden on a woman's funda-
mental right to obtain an abortion, see id. at 877-78, as a regulation
which has "the effect of placing a substantial obstacle in the path of
a woman's choice cannot be considered a permissible means of serv-
ing its legitimate ends." Id. at 877. A review of the record makes it
clear that Regulation 61-12 will impose an undue burden on the right
to obtain an abortion prior to viability. As noted earlier, a first trimes-
ter suction curettage abortion in South Carolina currently costs
between $325 and $480, depending on the gestational age, the type
of sedation or anesthesia needed, and the medical testing indicated.
Based on the costs of complying with Regulation 61-12, the district
court found that Regulation 61-12 would raise the cost of each abor-
tion performed by the plaintiffs in the following ranges: (1) for
CWMC, the cost will increase between $36.48 and $75.03; (2) for Dr.
Lynn's Greenville practice, the cost will increase between $93.09 and
$170.39; (3) for Dr. Lynn's Beaufort practice, the cost will increase
between $115.67 and $367.50; and (4) for GWC, the cost will
increase between $22.68 and $32.39. See Greenville Women's Clinic,
66 F. Supp. 2d at 717. A significant increase in the cost of obtaining
an abortion alone can constitute an undue burden on the right to have
an abortion. See Casey, 505 U.S. at 901 ("While at some point
increased cost could become a substantial obstacle, there is no such
showing on the record before us."). It follows that the decreased avail-
ability of abortions due to the closure of the only abortion clinic in
one area of a state also constitutes an undue burden on the right to
have an abortion, as it increases the distance a woman has to travel
to obtain an abortion, thereby significantly increasing the time and the
cost to obtain an abortion.
Regulation 61-12 will impose a significant increase in the cost of
obtaining an abortion in South Carolina, which, in turn, will prevent
woman from obtaining abortions. For example, for a woman in Beau-
fort, South Carolina, the cost of a first trimester abortion will increase,
at a minimum, $115.67, or, if Dr. Lynn's Beaufort practice closes
because of Regulation 61-12, it may result in the elimination of abor-
tion services in that part of the state altogether. Also the increased
costs of providing abortions resulting from Regulation 61-12 at other
facilities throughout South Carolina will prevent a significant number
of women from obtaining an abortion or, at a minimum, delay them
74
from obtaining an abortion, thus, resulting in increased health risks to
women in South Carolina.
Regulation 61-12 also imposes additional burdens, unrelated to
cost, on the right to obtain an abortion. For example, Regulation 61-
12 grants DHEC inspectors the right to inspect abortion clinics at will
and without limitation; such inspections can be initiated by anony-
mous complaints. During any such inspection, DHEC inspectors are
granted the right to copy confidential patient records, and Regulation
61-12 does not ensure that DHEC will keep these records confiden-
tial. Obviously, this requirement would have a chilling effect on a
woman's freedom to choose to have, and a physician's willingness to
preform, an abortion. Another example is Regulation 61-12's require-
ment that a married abortion patient disclose her husband's name.
Obviously, this requirement is not necessary for the provision of safe
medical care, and there are a host of reasons why a married patient
would prefer not to disclose her husband's name. Cf. Casey, 505 U.S.
at 893-98 (holding that Pennsylvania law requiring spousal notifica-
tion prior to abortion imposes an undue burden on the right to have
an abortion). Thus, this requirement also hinders a woman from
obtaining an abortion. Finally, physicians performing five or more
first trimester abortions per month must be licensed by the State of
South Carolina and be "properly qualified by training and experience
to perform" abortions. S.C. Code Ann. Regs. 61-12, § 205(C). How-
ever, Regulation 61-12 provides no guidance on the additional cre-
dentials required beyond that of a medical license to meet this
qualification standard. Thus, physicians who perform five or more
first trimester abortions per month operate under a constant fear that
they will be declared "unqualified" by DHEC under some vague and
amorphous standard. Obviously, this readily apparent fear would have
a chilling effect on a physician's willingness to perform an abortion,
thus, resulting in an adverse impact on a woman's ability to obtain an
abortion. Cf. Stenberg, No. 99-830, 2000 WL 825889, at *19 ("In
sum, using this law some present prosecutors and future Attorneys
General may choose to pursue physicians who use D & E procedures,
the most commonly used method for performing previability second
trimester abortions. All those who perform procedures using that
method must fear prosecution, conviction, and imprisonment. The
result is an undue burden upon a woman's right to make an abortion
decision."). Under these circumstances, I am simply constrained to
75
conclude that Regulation 61-12 imposes an undue burden on a
woman's fundamental right to obtain an abortion. Cf. Ragsdale v.
Turnock, 841 F.2d 1358, 1373-74 (7th Cir. 1988) (invalidating por-
tions of a similar licensure regulation which mandated, among other
things, detailed physical plant requirements, policies and procedures,
and staffing requirements); Birth Control Ctrs., Inc. v. Reizen, 743
F.2d 352, 364-65 (6th Cir. 1984) (invalidating detailed, specific regu-
latory criteria governing the physical layout of abortion facilities,
staffing requirements, and equipment requirements).
In its opinion, the majority concludes that Regulation 61-12 does
not constitute an undue burden on a woman's right to obtain an abor-
tion. See ante at 20-24. The pillar supporting the majority's holding
is its observation that the plaintiffs failed to produce evidence demon-
strating that the cost increases resulting from the promulgation of
Regulation 61-12 would have an adverse effect on a women's ability
to obtain an abortion in South Carolina. See ante at 22-23. This pillar
is a transparent facade, at best.
In part, the district court's finding of an undue burden was prem-
ised on the testimony of the plaintiffs' expert, Dr. Stanley Henshaw.
Dr. Henshaw testified that an increase of just $25 can be expected to
prevent one or two out of every 100 low-income women seeking an
abortion from being able to obtain one. Under Supreme Court case
law, this constitutes an undue burden on a woman's right to obtain an
abortion. See Casey, 505 U.S. at 894-95 (invalidating law that
imposed substantial obstacle on a large fraction of the one percent of
abortion patients who are married and do not voluntarily notify their
spouses of the abortion).
Moreover, the cost increases resulting from Regulation 61-12 will
likely force Dr. Lynn to close his Beaufort practice. While traveling
seventy miles on secondary roads may be inconsequential to my
brethren in the majority who live in the urban sprawl of Baltimore,
as the district court below and I conclude, such is not to be so casually
addressed and treated with cavil when considering the plight and
effect on a woman residing in rural Beaufort County, South Carolina.20
_________________________________________________________________
20 The majority seems to intimate that an increase in the cost of obtain-
ing an abortion effectuated by the promulgation of a health regulation is
76
B
The Equal Protection Clause states in relevant part that no state
shall "deny to any person within its jurisdiction the equal protection
of the laws." U.S. Const. amend. XIV, § 1. The Equal Protection
Clause requires that "all persons similarly situated should be treated
alike." City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432,
439 (1985). However, the Equal Protection Clause's"promise that no
person shall be denied the equal protection of the laws must coexist
with the practical necessity that most legislation classifies for one pur-
pose or another, with resulting disadvantage to various groups or per-
sons." Romer v. Evans, 517 U.S. 620, 631 (1996). Accordingly, "if a
law neither burdens a fundamental right nor targets a suspect class,"
the legislation will be upheld "so long as it bears a rational relation
to some legitimate end." Id.
Initially, it must be determined what level of scrutiny should be
applied to the classifications at issue, which are physicians and abor-
tion clinics that perform five or more abortions per month. The plain-
tiffs urge the court to apply strict or heightened scrutiny because the
classifications penalize the exercise of the fundamental right to have
_________________________________________________________________
irrelevant to the undue burden calculus. See ante at 22. According to the
majority, to hold otherwise "would necessitate the formulation of an arbi-
trary cost threshold beyond which a price increase may not pass." Id. at
23. This, in turn, "would irrationally hamstring the State's effort to raise
the standard of care in certain abortion clinics . .. simply because the
clinics' performance falls so far below appropriate norms that the
expense of upgrading their practices and equipment exceeds the arbitrar-
ily defined amount." Id. at 23. Unlike the majority, I believe that an
increase in the cost of having an abortion effectuated by the promulga-
tion of a health regulation is highly relevant to the undue burden inquiry.
First, in Casey, the Supreme Court noted that a significant increase in the
cost of obtaining an abortion alone can constitute an undue burden on the
right to have an abortion. See Casey, 505 U.S. at 901 ("While at some
point increased cost could become a substantial obstacle, there is no such
showing on the record before us."). Second, the Supreme Court stated in
Casey that a statute which, while furthering a state interest, has the effect
of placing a substantial obstacle in the path of a woman's choice cannot
be considered a permissible means of serving its legitimate ends. See id.
at 877.
77
an abortion or, at a minimum, target a suspect or quasi-suspect class.
On the other hand, the defendants contend that physicians do not con-
stitute a suspect class for equal protection purposes and do not have
a fundamental right to perform abortions. Accordingly, the defendants
argue that the court should apply the rational basis test.
Courts addressing the constitutionality of similar types of health
care regulations have reached various conclusions under different
tests. For example, in Friendship Medical Center, Ltd. v. Chicago
Board of Health, 505 F.2d 1141 (7th Cir. 1974), the court invalidated
abortion service regulations promulgated by the Chicago Board of
Health which sought to regulate such things as the design of the medi-
cal facility, the type of medical staff and its training, the maintenance
of equipment, supplies, and medications, the content of medical
records, and the types of medical tests which must be administered to
abortion patients. See id. at 1152-53. Applying strict scrutiny, the
court invalidated the regulation on both due process and equal protec-
tion grounds, because fundamental rights were involved. See id. at
1148-52. With regard to the equal protection analysis, the court held
as follows:
Given the Supreme Court's acceptance of the medical fact
that the mortality rate of women receiving legal abortions is
"as low as or lower than the rates of normal childbirth," . . .
there would seem to be little justification for extensive gov-
ernmental regulations, purportedly based on health consider-
ations, for one procedure than the other. . . .
The Chicago Board of Health's Rules on Abortion Services
regulate comprehensively physicians who perform abor-
tions, while at the same time leaving other medical proce-
dures, often much more complex and dangerous in terms of
the patient's health, up to the good judgment of the physi-
cian.
Id. at 1152 (quoting Roe, 410 U.S. at 149). Because the defendants
offered no sufficiently compelling reason to justify the difference in
treatment, the court invalidated the regulations. See id. at 1153. It had
previously noted, however, that "on the record before th[e] court there
78
is no basis for determining whether the regulations are even reason-
ably related to a valid state concern." Id. at 1150.
The Sixth Circuit has also been called upon to address comprehen-
sive health regulations on several occasions. First, in Mahoning
Women's Center v. Hunter, 610 F.2d 456 (6th Cir. 1979), vacated on
other grounds, 447 U.S. 918 (1980), the court affirmed the district
court's decision to invalidate, under the strict scrutiny test, a city ordi-
nance imposing costly medical and building code requirements on
first trimester abortion clinics, while leaving unregulated the perfor-
mance of other medical and surgical procedures. See id. at 460-61.
Next, the Sixth Circuit addressed the constitutionality of a Michi-
gan licensing scheme which required all free-standing surgical outpa-
tient facilities (FSOFs) to comply with staffing, structural, equipment,
counseling, consent, and record-keeping requirements in order to
obtain a license to operate. See Birth Control Ctrs., Inc., 743 F.2d at
357. Because the licensing scheme applied to abortion clinics, albeit
not exclusively, four abortion clinics challenged the scheme on equal
protection grounds because it exempted private physicians' offices
where abortions were performed. See id. at 356-57. The court
affirmed the district court's application of the rational basis test as the
appropriate standard of review, because the "differentiation between
FSOFs and physicians' private offices did not involve any suspect
class nor implicate any fundamental right." Id. at 358. In particular,
the court held that "no suspect classification was involved . . . since
the state ha[d] chosen to regulate all FSOFs, not just abortion clinics,"
and distinguished Mahoning on this basis. Birth Control Ctrs., Inc.,
743 F.2d at 358 & n.4.
Finally, in Women's Health Center of West County, Inc. v. Web-
ster, 871 F.2d 1377 (8th Cir. 1989), the Eighth Circuit, applying the
rational basis test, upheld an abortion regulation which required emer-
gency backup care against an equal protection challenge. See id. at
1381. The court noted that, although the regulation applied only to
abortion providers, the state already required such backup care for all
patients undergoing any outpatient surgery. See id. Thus, the regula-
tion was a reasonable means of insuring the health of women seeking
abortions and did not impose a special requirement upon abortion pro-
viders. See id.
79
It is unnecessary for me to decide whether the strict scrutiny test
or the rational basis test should be applied in this case because Regu-
lation 61-12 is constitutionally infirm under the more lenient rational
basis test. Under the rational basis test, the court must determine the
relation between the classification adopted and the objective to be
attained. Romer, 517 U.S. at 632. "The search for the link between
classification and objective gives substance to the Equal Protection
Clause; it provides guidance and discipline for the legislature, which
is entitled to know what sorts of laws it can pass; and it marks the
limits of our own authority." Id. "By requiring that the classification
bear a rational relationship to an independent and legitimate legisla-
tive end, we ensure that classifications are not drawn for the purpose
of disadvantaging the group burdened by the law." Id. at 633. Further-
more, even if the disadvantaged group does not rise to the level of a
suspect class entitled to the application of strict scrutiny, the court
must closely scrutinize laws that disadvantage a politically unpopular
group because such laws "raise[ ] the inevitable inference that the dis-
advantage imposed is born of animosity toward the class of persons
affected." Id. at 634. "`[I]f the constitutional conception of "equal pro-
tection of the laws" means anything, it must at the very least mean
that a bare . . . desire to harm a politically unpopular group cannot
constitute a legitimate governmental interest.'" Id. at 634-35 (quoting
Department of Agric. v. Moreno, 413 U.S. 528, 534 (1973)).
The defendants contend that Regulation 61-12 does not violate the
Equal Protection Clause because its provisions are rationally related
to the legitimate state interest of protecting the health and welfare of
women seeking abortions in the state. I disagree.
Obviously, South Carolina has a legitimate interest in protecting
the health and welfare of women seeking abortions in the state. South
Carolina also has a legitimate interest in promulgating uniform, mini-
mum standards for the performance of surgical procedures, including
first trimester abortions. And South Carolina could constitutionally
require that abortions only be lawfully performed by physicians
licensed by the State Board of Medical Examiners to practice medi-
cine pursuant to such uniform, minimum standards, thereby address-
ing any concern that unqualified, unlicenced physicians will come
within its borders and establish unregulated abortion clinics perform-
ing unsafe abortion procedures.
80
However, as the district court noted,
[t]he regulation singles out physicians and clinics where
abortions are performed regularly, as part of the normal
course of business and in relatively large numbers, and
imposes upon them requirements which are not imposed
upon comparable procedures and not even upon all physi-
cians who perform first trimester abortions. In addition, the
regulation's requirements reach far beyond those justified
by actual differences in the procedure, or by the medical
nature and risks of the procedure. . . .
Furthermore, defendants have offered no satisfactory expla-
nation as to why the state standards applied to physicians'
offices and clinics performing comparable procedures would
not suffice to regulate first trimester abortion providers or
ensure the health, safety and welfare of patients seeking
abortions--much less an acceptable basis for excluding phy-
sicians and facilities which perform first trimester abortions
on a more infrequent basis. . . .
Regulation 61-12 singles out all physicians and clinics who
perform more than the occasional first trimester abortion
and requires of them a license to operate their office or
clinic. To obtain the license, the physicians and clinics must
comply with comprehensive mandates governing the physi-
cal layout of the clinic or office, the medical equipment
which must be purchased and maintained, the cleaning,
maintenance, and operation of the clinic and the requisite
equipment, the management and training of the staff, and
the type of medical care and tests which must be adminis-
tered and offered to the patients. The onerous, and largely
unnecessary, requirements of this regulation are neither
"narrow enough in scope [nor] grounded in a sufficient fac-
tual context for [the court] to ascertain that there existed
some relation between the classification and the purpose it
is now alleged to serve."
Greenville Women's Clinic, 66 F. Supp. 2d at 742-43 (quoting Romer,
517 U.S. at 632-33).
81
In summary, Regulation 61-12 singles out and places additional
and onerous burdens upon abortion providers which are neither justi-
fied by actual differences nor rationally related to the state's legiti-
mate interest in protecting the health and safety of women seeking
first trimester abortions. Rather, "its sheer breadth is so discontinuous
with the reasons offered for it that [Regulation 61-12] seems inexpli-
cable by anything but animus toward the class that it affects." Romer,
517 U.S. at 632. The fact that Regulation 61-12 was directed towards
a politically unpopular group in the absence of any existing public
health problem only bolsters this conclusion.21 See id. at 632-34.
III
The only remaining issue in the case is the question of severability.
The defendants contend that the district court erred in refusing to
sever the unconstitutional portions of Regulation 61-12 from the con-
stitutional portions. This argument is without merit.
_________________________________________________________________
21 Although the South Carolina legislature directed DHEC to regulate
abortion facilities which performed five or more first trimester abortions
per month, while leaving other licensed physicians under the exclusive
supervision of the Board of Medical Examiners, it is undisputed that
DHEC retained the discretion to refrain from treating abortion clinics and
abortions differently than comparable facilities and procedures. For
example, DHEC could have treated abortion clinics like other physi-
cians' offices and clinics by promulgating regulations consistent with
what is already required in physicians' offices by other laws and
accepted standards. As to the physical plant requirements of Regulation
61-12, DHEC could have adopted regulations requiring the abortion
clinic to meet all applicable building codes. As to staff qualifications and
medical records, DHEC could have required the supervising physician to
hire staff and maintain medical records that, in his or her professional
discretion, would appropriately provide for the needs and rights of the
patients. On the other hand, with regard to needs unique to the abortion
procedure, DHEC could have treated abortion providers differently from
other physicians' offices and clinics, but only based on actual differences
between those facilities. Instead, DHEC placed onerous burdens upon
abortion providers which are neither justified by actual differences nor
rationally related to the state's legitimate interest in protecting the health
and safety of women seeking first trimester abortions.
82
Whether Regulation 61-12 is subject to the doctrine of severability
is a question of state, rather than federal, law. See Department of
Treasury v. Fabe, 508 U.S. 491, 509-10 (1993). Under South Carolina
law,
[t]he test for severability is whether the constitutional por-
tion of the statute remains complete in itself, wholly inde-
pendent of that which is rejected, and is of such a character
as it may fairly be presumed that the Legislature would have
passed it independent of that which is in conflict with the
Constitution.
Thayer v. South Carolina Tax Comm'n, 413 S.E.2d 810, 815 (S.C.
1992) (citation and internal quotation marks omitted). Moreover, if
the statutory or regulatory scheme does not contain a specific sever-
ability clause, the legislature or agency is presumed to have "intended
the act to be effected as an entirety or not at all." South Carolina Tax
Comm'n v. United Oil Marketers, Inc., 412 S.E.2d 402, 405 (S.C.
1991).
Applying this standard, I conclude that Regulation 61-12 is not a
proper candidate for severance. Regulation 61-12 does not contain a
severability provision, despite the fact that other DHEC regulations
have included such provisions. See, e.g., S.C. Code Ann. Regs. 61-4,
Part VI, § 601 (controlled substances regulation); S.C. Code Ann.
Regs. 61-21, § T (sexually transmitted diseases). The absence of a
severability clause is consistent with the scheme of the enabling legis-
lation and the nature of the regulation. It is apparent that the South
Carolina legislature intended for DHEC to create a comprehensive
licensing scheme for abortion providers, as Regulation 61-12 sets
forth areas to be addressed by the regulation as a whole, and the text
of the regulation is comprehensive and interdependent, reflecting a
similar intent that it stand or fall as a whole. In other words, because
the South Carolina legislature directed DHEC to promulgate a com-
prehensive set of regulations governing virtually every aspect of the
abortion procedure, it is evident that the South Carolina legislature
intended for all of Regulation 61-12 to be enforced or none of it.
Finally, I note that severance is simply not possible, as I am simply
unable to "untangle the constitutional from the unconstitutional provi-
sions." Ragsdale, 841 F.2d at 1375.
83
IV
I have some final comments concerning Part IV of the majority
opinion. The accusatory tone of this portion of the majority opinion,
aimed at me and the district judge who decided the case below, can
only evince a majority which refuses to recognize that current
Supreme Court precedent mandates that a woman still has the funda-
mental right to obtain an abortion. In its eagerness to uphold any
impediment to a woman's fundamental right to a previability abor-
tion, the majority, interjecting the emotional and psychological aspect
of a woman's decision, would desensitize the real and basic issue to
be addressed when evaluating such regulations--that is, whether the
regulations are medically necessary and, if so, whether the regulations
impose an undue burden on a woman's fundamental right to have an
abortion at the previability stage of pregnancy. There is no doubt that
the State of South Carolina can, within limits, treat abortions differ-
ently from other medical procedures. But to resolve the question of
whether regulations governing abortions are medically necessary,
some reference to comparable procedures is necessary, if not inevita-
ble.
When considering the majority's analysis based on its chosen and
carefully selected facts, ignoring the findings of fact by the district
court, it can only be concluded that the majority's opinion is based on
its view of the law as it would like to see it and, perhaps more signifi-
cantly, on not what the current law would dictate, but only what the
majority prophecies the law will be if and when this case reaches the
Supreme Court. This is simply unacceptable; cases are to be decided
on what the law is. It's just that simple.
To sum up, Regulation 61-12 is violative of the Due Process and
Equal Protection Clauses of the Fourteenth Amendment, and, under
South Carolina law, Regulation 61-12 is not subject to the doctrine of
severability. Accordingly, I would affirm the judgment of the district
court.22
_________________________________________________________________
22 With regard to the argument of the defendants attacking the district
court's award of attorneys' fees, the argument is without merit.
84