Greenville Women's Clinic v. Bryant

Decision Date27 January 2000
Docket NumberV,DEFENDANT-APPELLAN,AND,No. 99-1319,99-1710 and 99-1725,DEFENDANTS-APPELLANTS,PLAINTIFFS-APPELLEE,99-1319
Parties(4th Cir. 2000) GREENVILLE WOMEN'S CLINIC; CHARLESTON WOMEN'S MEDICAL CLINIC, INCORPORATED; WILLIAM LYNN, MD, ON BEHALF OF THEMSELVES AND THEIR PATIENTS SEEKING ABORTIONS,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,, GOVERNOR OF SOUTH CAROLINA, DEFENDANT. GREENVILLE WOMEN'S CLINIC; CHARLESTON WOMEN'S MEDICAL CLINIC, INCORPORATED; WILLIAM LYNN, MD, ON BEHALF OF THEMSELVES AND THEIR PATIENTS SEEKING ABORTIONS,GOVERNOR OF SOUTH CAROLINA,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,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,, GOVERNOR OF SOUTH CAROLINA, DEFENDANT. Argued:
CourtU.S. Court of Appeals — Fourth Circuit

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) [Copyrighted Material Omitted] Argued: Floyd Matlock Elliott, Haynsworth, Marion, Mckay & Guerard, L.L.P., Greenville, South Carolina, for Appellants. Bonnie Scott Jones, The Center For Reproductive 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 Control, Columbia, South Carolina; Charles Molony Condon, James Emory Smith, Jr., Office OF The Attorney General, Columbia, South Carolina; Charles E. Carpenter, Jr., Donald V. Richardson, III, S. Elizabeth Brosnan, Richardson, Plowden, Carpenter & Robinson, P.A., Columbia, South Carolina, for Appellants. Randall Hiller, Greenville, South Carolina, for Appellees.

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 dissenting opinion.

OPINION

Niemeyer, Circuit Judge

This case presents the important question of whether South Carolina'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 constitutionality 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 opinion of O'Connor, Kennedy, and Souter, JJ.); (3) the increased costs of abortions caused by implementation of the Regulation, while speculative, 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 secondtrimester 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 Performing Abortions"). The regulation under this earlier statute contained chapters covering abortion-clinic management, laboratory facilities and procedures, medical records and reports, clinic design and construction, 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 Regulation").

In developing Regulation 61-12, the DHEC built on the pre-existing version of its Regulation 61-12, as well as other DHEC regulations covering different types of healthcare facilities. The DHEC also consulted various medical standards and guidelines issued by medicalcare organizations, including groups dedicated to protecting abortion rights. These sources included: (1) Standards for ObstetricGynecologic 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 Parenthood, 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 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 "constructing and equipping new medical facility projects" and for "renovation or replacement work."

In addition to consulting established sources, the DHEC conducted public hearings, during which it received suggestions from the abortion 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 noncompliance 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 complete 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 id. § 205(C). A registered nurse must supervise all nursing care, and an ultrasound test may be conducted only by a person who has completed a course in ultrasonography. See id.§ 205(D), (F). Each facility must display a copy of a statement specifying patients' rights, including the rights to dignity, privacy, and safety. See id. § 209.

Part III, "Patient Care," provides...

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