Greenville Women's Clinic v. Commissioner, 091902 FED4, 01-2090

Docket Nº:01-2090
Party Name:Greenville Women's Clinic v. Commissioner
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit


GREENVILLE WOMEN’S CLINIC; WILLIAM LYNN, MD, on behalf of themselves and their patients seeking abortions, Plaintiffs-Appellants,





No. 01-2090 and No. 01-2235


Argued: April 5, 2002


September 19, 2002

Appeals from the United States District Court for the District of South Carolina, at Greenville. Henry M. Herlong, Jr., District Judge.


Before NIEMEYER and KING, Circuit Judges, and James H. MICHAEL, Jr., Senior United States District Judge for the Western District of Virginia, sitting by designation.

Affirmed in part and reversed in part by published opinion. Judge Niemeyer wrote the opinion, in which Senior Judge Michael joined. Judge King wrote a dissenting opinion.


ARGUED: Bonnie Scott Jones, THE CENTER FOR REPRODUCTIVE LAW & POLICY, New York, New York, for Appellants. Boyd Benjamin Nicholson, Jr., HAYNSWORTH, SINKLER, BOYD, P.A., Greenville, South Carolina, for Appellees.

ON BRIEF: Randall Scott Hiller, Greenville, South Carolina, for Appellants. George Dewey Oxner, Jr., Floyd Matlock Elliott, HAYNSWORTH, SINKLER, BOYD, P.A., Greenville, South Carolina; Charles Molony Condon, James Emory Smith, Jr., OFFICE OF THE ATTORNEY GENERAL, Columbia, South Carolina; Nancy Staats Layman, DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL, Columbia, South Carolina, for Appellees.


NIEMEYER, Circuit Judge:

This appeal continues our review of the facial constitutional challenges made by abortion clinics in South Carolina to Regulation 61-12 of the South Carolina Department of Health and Environmental Control, establishing standards for licensing abortion clinics. In Greenville Women’s Clinic v. Bryant , 222 F.3d 157 (4th Cir. 2000), cert. denied , 531 U.S. 1191 (2001) ("Bryant I"), we held (1) that Regulation 61-12 did not place an undue burden on a woman’s decision whether to seek an abortion in violation of the liberty interest protected by the Due Process Clause and (2) that the regulation did not distinguish unreasonably between clinics that performed a specified number of abortions and those that did not in violation of the Equal Protection Clause.

On remand, the district court addressed the remaining challenges made to Regulation 61-12, rejecting the abortion clinics’ contentions that the regulation unconstitutionally delegates licensing authority to nongovernmental third parties without standards; that it violates the Establishment Clause of the First Amendment; and that it is void for vagueness. The district court did, however, conclude that § 102(F) of the regulation, which provides South Carolina inspectors access to records of abortion clinic patients, infringes on a constitutional right to informational privacy insofar as it authorizes the disclosure of patients’ names to State inspectors.

On the cross-appeals of the parties, we reject all of the remaining constitutional challenges to Regulation 61-12 and accordingly affirm in part and reverse in part.


As authorized in § § 44-41-10 et seq. and 44-7-110 of the Code of Laws of South Carolina, the South Carolina Department of Health and Environmental Control ("DHEC") promulgated Regulation 61-12, entitled "Standards for Licensing Abortion Clinics." Because Regulation 61-12, which comprehensively regulates abortion clinics in South Carolina, was summarized more fully in Bryant I, 222 F.3d at 160-62, we only briefly summarize its ten chapters here:

Chapter 1, entitled "Definitions and Requirements for Licensure," includes definitions of relevant terms and sets forth the general requirement that abortion clinics in South Carolina be licensed and subject to inspections. A regulated abortion clinic is defined as "[a]ny facility, other than a hospital as defined in Section 101.J, in which any second trimester or five or more first trimester abortions per month are performed." DHEC Reg. 61-12, § 101(B). Any facility in violation of the regulation may be subjected to civil penalties, including suspension or revocation of its license or a monetary fine. Id. § 103.

Chapter 2, entitled "Administration and Management," describes operational policies and procedures, as well as personnel requirements. It also includes a summary of the patients’ rights. Id. § 209.

Chapter 3, entitled "Patient Care," prescribes minimum procedures required in the treatment of all patients and a limitation of the procedures that may be provided at the facility. The chapter includes admissions criteria, staff responsibilities, and details regarding abortion procedure and follow-up care. Id. § 301. Also included within this chapter are certain facility requirements, such as pharmaceutical capabilities and laboratories. Id. § § 303, 304. There is a specification of minimum equipment and supplies, id. § 306, and a requirement that clinics implement an ongoing plan for improvement of patient care, id. § 308. The chapter further specifies that for purposes of emergency care, staff or consulting physicians shall have admitting privileges at a local hospital that has appropriate obstetrical and gynecological services. Id. § 305. Finally, the chapter requires that abortion clinics make arrangements for consultation or referral services "in the specialties of obstetrics/gynecology, anesthesiology, surgery, psychiatry, psychology, clinical pathology and pathology, clergy, and social services, as well as any other indicated field, to be available as needed." Id. § 307.

Chapter 4, entitled "Medical Records and Reports," sets forth detailed requirements for the generation of patient records, which must be maintained and stored in a "safe location" for at least ten years. Id. § § 401, 402. This chapter also requires abortion clinics to report to the appropriate State agency each abortion performed, each "fetal death" when the fetus has developed beyond a certain stage, and each "accident or incident occurring in the facility which involves patients, staff, or visitors." Id. § 403.

Chapter 5, entitled "Functional Safety and Maintenance," deals with safety in clinics’ handling of hazardous materials, needles, syringes, and similar materials. Id. § 501. It also requires the maintenance of emergency equipment and a plan for disaster preparedness. Id. § § 502, 503.

Chapter 6, entitled "Infection Control and Sanitation," describes procedures for maintaining sterilized supplies and equipment, as well as requirements for having clean linen and towels, clean facilities and grounds, and waste disposal.

Chapter 7, entitled "Fire Protection and Prevention," details specific requirements for fire protection and safety, including mandatory fire drills and alarm testing.

Chapter 8, entitled "Design and Construction," sets forth requirements for approval of the design and construction of abortion clinics and includes requirements for specific types of rooms, security, and equipment.

Chapter 9, entitled "Prerequisites for Initial Licensure," includes the requirements for plan and construction approval, the existence of documentation demonstrating licensure, and the necessary facility permits.

Finally, Chapter 10, entitled "General," states in its entirety, "Conditions arising that have not been addressed in these regulations shall be managed in accordance with the best practices as interpreted by the Department."

On June 27, 1996, one day before Regulation 61-12 was to become effective, the plaintiffs — two abortion clinics and a doctor operating abortion clinics — commenced this action on behalf of themselves and their patients to obtain a declaratory judgment that Regulation 61-12 was facially unconstitutional on numerous grounds. The district court agreed with the plaintiffs in part, finding that Regulation 61-12 placed an undue burden on a woman’s Fourteenth Amendment due process right to choose whether to seek an abortion and that the regulation violated the Equal Protection Clause of the Fourteenth Amendment by treating abortion clinics differently than other healthcare facilities without a rational basis for doing so. Greenville Women’s Clinic v. Bryant, 66 F.Supp.2d 691 (D.S.C. 1999). Because the district court struck down the regulation on two different grounds, it did not decide the plaintiffs’ other constitutional challenges.

On appeal, we reversed, holding that Regulation 61-12 did not impose an undue burden on a woman’s right to choose whether to seek an abortion and that South Carolina had a rational basis for treating abortion clinics differently from other medical facilities. Bryant I, 222 F.3d at 171-72, 174. We found that Regulation 61-12 serves a valid purpose in safeguarding the health of women and does not aim directly at a woman’s right to make the decision to have an abortion. The $23-$75 increased cost per abortion attributable to compliance with Regulation 61-12 was, we held, an incidental effect that, while making abortions modestly more expensive, did not unduly burden a woman’s right to make the abortion decision. Id. at 169-72. Because the regulation did not strike at the abortion-decision right itself, we also applied a rational-basis standard to the equal protection analysis and concluded that South Carolina had a rational basis for regulating abortion clinics while not regulating other healthcare facilities. We noted that abortions are "inherently different from other medical procedures, because no other procedure involves the purposeful...

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