Greenville Women's Clinic v. Bryant

• Decision Date: 05 February 1999
• Docket Number: No. CIV A 6:96-1898-21.,CIV A 6:96-1898-21.
• Citation: 66 F.Supp.2d 691
• Court: U.S. District Court — District of South Carolina
• Parties: GREENVILLE WOMEN'S CLINIC, Charleston Women's Medical Clinic, Inc., and William Lynn, M.D., on behalf of themselves and their patients seeking abortions, Plaintiffs, v. Douglas E. BRYANT, in his official capacity as Commissioner of South Carolina Department of Health and Environmental Control, the Governor of the State of South Carolina, in his official capacity, and Charles M. Condon, in his official capacity as Attorney General of the State of South Carolina, Defendants.

66 F.Supp.2d 691

GREENVILLE WOMEN'S CLINIC, Charleston Women's Medical Clinic, Inc., and William Lynn, M.D., on behalf of themselves and their patients seeking abortions, Plaintiffs, v. Douglas E. BRYANT, in his official capacity as Commissioner of South Carolina Department of Health and Environmental Control, the Governor of the State of South Carolina, in his official capacity, and Charles M. Condon, in his official capacity as Attorney General of the State of South Carolina, Defendants.

No. CIV A 6:96-1898-21.

United States District Court, D. South Carolina, Greenville Division.

February 5, 1999.

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Janet Crepps, Diane Curtis, Bonnie Scott Jones, New York City, Lisa Landau, Catherine Weiss, American Civil Liberties Union Reproductive Project, New York City, Randall Scott Hiller, Greenville, SC, Carl A. Brumme, III, ACLU of SC, Columbia, SC, Bebe J. Anderson, New York City, for Plaintiffs.

Charles Molony Condon, Atty. General of South Carolina, Floyd Matlock Elliott, George Dewey Oxner, Jr., Greenville, SC, Treva G. Ashworth, Columbia, SC, Nancy S. Layman, DHEC Office of General Counsel, Columbia, SC, Donald Valentine Richardson, Richardson, Plowden, Carpenter & Robinson, PA, Columbia, SC, James Emory Smith, Jr., SC Atty. General's Office, Columbia, SC, Boyd Nicholson, Jr., Hamilton E. Russell, III, Haynesworth, Marion, McKay & Guerard, Greenville, SC, for Defendants.

ORDER

TRAXLER, Circuit Judge.

This matter is before the court pursuant to a lawsuit filed by a physician and two medical clinics which offer first trimester abortion services in South Carolina, challenging the constitutionality of a state regulation, S.C.Code Ann. Regs. 61-12, which governs the licensure and operation of physicians' offices and abortion clinics that perform five or more first trimester abortions per month. Plaintiffs seek a declaration that the regulation is unconstitutional and injunctive relief against state officials who would enforce it.

On July 19, 1996, this court issued an order granting plaintiffs' motion for a temporary restraining order and enjoining defendants from enforcing the challenged regulation, pending a hearing on the issuance of a preliminary injunction. Prior to such hearing, however, the parties notified the court that they had agreed to continue the injunction until a decision could be rendered on the merits. A six day non-jury trial was held before this court beginning July 13, 1998, and arguments were heard on October 9, 1998.

INTRODUCTION

In 1973, the Supreme Court of the United States ruled that a woman's decision to have an abortion was a fundamental right protected by the Constitution. Because the South Carolina Department of Health and Environmental Control, ("DHEC"), has promulgated a regulation governing abortions and abortion clinics, and because there is a legal challenge to its requirements, it has become the responsibility of this court to examine the regulation to determine if it can withstand a challenge to its constitutionality.

An analysis of this issue begins not only with an understanding that a woman's right to choose to undergo an abortion is a constitutionally protected one, but also with a recognition that a state has a legitimate interest in regulating abortions in order to protect maternal health and to promote fetal life. A state has a duty to protect its citizens and this court will uphold such efforts so long as a state's laws do not tread improperly upon rights protected by the United States Constitution.

In this case, DHEC has promulgated a regulation in the area of abortions which it clearly had the right to do. What it did wrong was to go too far. Despite the fact that abortion clinics have been operated in a safe manner for the past twenty-three years, DHEC loaded these abortion clinics down with so many unnecessary requirements that the court has no choice but to conclude that the regulation unduly burdens a woman's fundamental right to undergo an abortion and, therefore, violates the Due Process Clause of the Fourteenth Amendment to the Constitution.

The regulation also violates the Equal Protection Clause of the Fourteenth Amendment. Simply put, this regulation would impose severe requirements on physicians and clinics performing five or more abortions per month, but not on physicians and clinics performing four abortions per month and/or other, virtually identical, procedures. At trial, there was no logical reason offered as to why these two groups should be treated so differently.

As a result of the many problems with the regulation, this court is constrained to find that it is facially unconstitutional under the Fourteenth Amendment. This court has tried to sever the objectionable portions from the regulation, but the problems are so many and so diffuse that their omission would render the regulation unworkable. Consequently, this court has no alternative but to declare the regulation as a whole invalid and unenforceable.

FINDINGS OF FACT¹

A. The Parties

1. Plaintiff Greenville Women's Clinic ("GWC"), located in Greenville, South Carolina, is a women's health care clinic providing gynecological health services, including abortions through 14 weeks of pregnancy measured from the pregnant woman's last menstrual period ("lmp").² Dr. Terry Buffkin and Dr. Thomas Campbell own and operate GWC, which has been in operation since 1978. Both are physicians licensed to practice medicine in South Carolina and are board certified in obstetrics and gynecology. On average, GWC performs approximately 2,746 first trimester abortions per year.

2. Plaintiff Charleston Women's Medical Clinic, Inc. ("CWMC"), located in Charleston, South Carolina, is also a women's health care clinic providing gynecological health services, including abortions through 12.5 weeks of pregnancy lmp. CWMC has been in operation for approximately 25 years. Ms. Lorraine Maguire, a licensed practical nurse, is the administrator of CWMC, and Dr. Richard Manning is its medical director. Dr. Manning is licensed to practice medicine in South Carolina and is board certified in obstetrics and gynecology. The CWMC, on average, performs approximately 2,408 first trimester abortions per year.

3. Plaintiff William Lynn, M.D. is a physician licensed to practice medicine in South Carolina and is board certified in obstetrics and gynecology. Dr. Lynn owns and operates two medical practices — an office in Beaufort, South Carolina ("Dr. Lynn's Beaufort office") and an office in Greenville, South Carolina that does business as the Palmetto State Medical Center ("PSMC"). Dr. Lynn has been regularly performing abortions since 1980. As part of his practice, Dr. Lynn provides abortions up to 13.9 weeks lmp. On average, Dr. Lynn performs 407 first trimester abortions per year in Beaufort and 536 first trimester abortions per year in Greenville.

4. Defendants are Douglas E. Bryant, in his official capacity as Commissioner of the South Carolina Department of Health and Environmental Control ("DHEC"), the Governor of the State of South Carolina, in his official capacity, and Charles M. Condon, in his official capacity as Attorney General of the State of South Carolina.

B. The Challenged Regulation

5. 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) and 70(b) (Law Co-op 1985). On January 3, 1995, however, the South Carolina legislature amended Chapter 41 of Title 44 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 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.

S.C.Code Ann. § 44-41-75 (Law Co-op Supp.1997) (emphasis added). The legislation is not challenged in this action.

6. Pursuant to this legislative directive, and procedures governing the promulgation of state regulations (the South Carolina Administrative Procedures Act ("APA"), S.C.Code Ann. § 1-23-10 et. seq. (Law. Co-op.1986 and Supp.1997)), DHEC officials drafted the challenged regulation, entitled "Standards for Licensing Abortion Clinics," S.C.Code Regs. 61-12. The regulation consists of approximately twenty-seven pages of detailed requirements that an abortion clinic must comply with in order to obtain and maintain a license to perform abortions, which is to be issued annually by DHEC. An abortion clinic is defined as "[a]ny facility, other than a hospital as defined in Section 101.J, in which any second trimester or five or more first trimester abortions per month are performed." S.C.Code Regs. 61-12, Section 101.B.³ Thus, it includes all abortion clinics, regardless of their ownership, as well as privately owned and operated physicians' offices. The regulation is divided into ten "Parts," as follows:

Part I Definitions and Requirements for Licensure; Part II Administration and Management;

Part III Patient Care;

Part IV Medical Records and Reports;

Part V Functional Safety and Maintenance;

Part VI Infection Control and Sanitation;

Part VII Fire Protection and Prevention;

Part VIII Design and Construction;

Part IX Prerequisites for Initial Licensure; and

Part X General.

With the exception of Parts IX and X, each Part is in turn divided into several sections which impose detailed requirements for the clinic's physical plant, staffing, and provision of medical care....