Planned Parenthood S. Atl. v. State

• Docket Number: 28174,Appellate Case 2023-000896
• Decision Date: 23 August 2023
• Parties: Planned Parenthood South Atlantic, on behalf of itself, its patients, and its physicians and staff; Katherine Farris, M.D., on behalf of herself and her patients; Greenville Women's Clinic, on behalf of itself, its patients, and its physicians and staff; and Terry L. Buffkin, M.D., on behalf of himself and his patients, Respondents, v. State of South Carolina; Alan Wilson, in his official capacity as Attorney General of South Carolina; Edward Simmer, in his official capacity as Director of the South Carolina Department of Health and Environmental Control; Anne G. Cook, in her official capacity as President of the South Carolina Board of Medical Examiners; Stephen I. Schabel, in his official capacity as Vice President of the South Carolina Board of Medical Examiners; Ronald Januchowski, in his official capacity as Secretary of the South Carolina Board of Medical Examiners; George S. Dilts, in his official capacity as a Member of the South Carolina Board of Medical Examiners; Dion Franga, in his official capacity as a Member of the South Carolina Board of Medical Examiners; Richard Howell, in his official capacity as a Member of the South Carolina Board of Medical Examiners; Robert Kosciusko, in his official capacity as a Member of the South Carolina Board of Medical Examiners; Theresa Mills-Floyd, in her official capacity as a Member of the South Carolina Board of Medical Examiners; Jennifer R. Root, in her official capacity as a Member of the South Carolina Board of Medical Examiners; Christopher C. Wright, in his official capacity as a Member of the South Carolina Board of Medical Examiners; Samuel H. McNutt, in his official capacity as Chairperson of the South Carolina Board of Nursing; Sallie Beth Todd, in her official capacity as Vice Chairperson of the South Carolina Board of Nursing; Tamara Day, in her official capacity as Secretary of the South Carolina Board of Nursing; Jonella Davis, in her official capacity as a Member of the South Carolina Board of Nursing; Kelli Garber, in her official capacity as a Member of the South Carolina Board of Nursing; Lindsey K. Mitcham, in her official capacity as a Member of the South Carolina Board of Nursing; Rebecca Morrison, in her official capacity as a Member of the South Carolina Board of Nursing; Kay Swisher, in her official capacity as a Member of the South Carolina Board of Nursing; Robert J.Wolff, in his official capacity as a Member of the South Carolina Board of Nursing; Scarlett A. Wilson, in her official capacity as Solicitor for South Carolina's 9th Judicial Circuit; Byron E. Gipson, in his official capacity as Solicitor for South Carolina's 5th Judicial Circuit; and William Walter Wilkins III, in his official capacity as Solicitor for South Carolina's 13th Judicial Circuit, Defendants, and Thomas C. Alexander, in his official capacity as President of the South Carolina Senate; G. Murrell Smith Jr., in his official capacity as Speaker of the South Carolina House of Representatives; and Henry McMaster, in his official capacity as Governor of the State of South Carolina, Intervenors-Defendants, of whom Henry McMaster, in his official capacity as Governor of the State of South Carolina; G. Murrell Smith Jr., in his official capacity as Speaker of the South Carolina House of Representatives; Thomas C. Alexander, in his official capacity as President of the South Carolina Senate; State of South Carolina; and Alan Wilson, in his official capacity as Attorney General of South Carolina, are Petitioners.
• Court: South Carolina Supreme Court

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Planned Parenthood South Atlantic, on behalf of itself, its patients, and its physicians and staff; Katherine Farris, M.D., on behalf of herself and her patients; Greenville Women's Clinic, on behalf of itself, its patients, and its physicians and staff; and Terry L. Buffkin, M.D., on behalf of himself and his patients, Respondents,
v.
State of South Carolina; Alan Wilson, in his official capacity as Attorney General of South Carolina; Edward Simmer, in his official capacity as Director of the South Carolina Department of Health and Environmental Control; Anne G. Cook, in her official capacity as President of the South Carolina Board of Medical Examiners; Stephen I. Schabel, in his official capacity as Vice President of the South Carolina Board of Medical Examiners; Ronald Januchowski, in his official capacity as Secretary of the South Carolina Board of Medical Examiners; George S. Dilts, in his official capacity as a Member of the South Carolina Board of Medical Examiners; Dion Franga, in his official capacity as a Member of the South Carolina Board of Medical Examiners; Richard Howell, in his official capacity as a Member of the South Carolina Board of Medical Examiners; Robert Kosciusko, in his official capacity as a Member of the South Carolina Board of Medical Examiners; Theresa Mills-Floyd, in her official capacity as a Member of the South Carolina Board of Medical Examiners; Jennifer R. Root, in her official capacity as a Member of the South Carolina Board of Medical Examiners; Christopher C. Wright, in his official capacity as a Member of the South Carolina Board of Medical Examiners; Samuel H. McNutt, in his official capacity as Chairperson of the South Carolina Board of Nursing; Sallie Beth Todd, in her official capacity as Vice Chairperson of the South Carolina Board of Nursing; Tamara Day, in her official capacity as Secretary of the South Carolina Board of Nursing; Jonella Davis, in her official capacity as a Member of the South Carolina Board of Nursing; Kelli Garber, in her official capacity as a Member of the South Carolina Board of Nursing; Lindsey K. Mitcham, in her official capacity as a Member of the South Carolina Board of Nursing; Rebecca Morrison, in her official capacity as a Member of the South Carolina Board of Nursing; Kay Swisher, in her official capacity as a Member of the South Carolina Board of Nursing; Robert J.Wolff, in his official capacity as a Member of the South Carolina Board of Nursing; Scarlett A. Wilson, in her official capacity as Solicitor for South Carolina's 9th Judicial Circuit; Byron E. Gipson, in his official capacity as Solicitor for South Carolina's 5th Judicial Circuit; and William Walter Wilkins III, in his official capacity as Solicitor for South Carolina's 13th Judicial Circuit, Defendants,

and Thomas C. Alexander, in his official capacity as President of the South Carolina Senate; G. Murrell Smith Jr., in his official capacity as Speaker of the South Carolina House of Representatives; and Henry McMaster, in his official capacity as Governor of the State of South Carolina, Intervenors-Defendants, of whom Henry McMaster, in his official capacity as Governor of the State of South Carolina; G. Murrell Smith Jr., in his official capacity as Speaker of the South Carolina House of Representatives; Thomas C. Alexander, in his official capacity as President of the South Carolina Senate; State of South Carolina; and Alan Wilson, in his official capacity as Attorney General of South Carolina, are Petitioners.

No. 28174

Appellate Case No. 2023-000896

Supreme Court of South Carolina

August 23, 2023

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Heard June 27, 2023

IN THE COURT'S ORIGINAL JURISDICTION

Chief Legal Counsel Thomas A. Limehouse Jr., Senior Litigation Counsel William Grayson Lambert, and Deputy Legal Counsel Erica Wells Shedd, all of Columbia, for Petitioner Governor Henry McMaster; Patrick Graham Dennis, of Columbia, for Petitioner G. Murrell Smith Jr.; Kenneth M. Moffitt, John Potter Hazzard V, and Jessica J Godwin, all of Columbia, for Petitioner Thomas C. Alexander; and Attorney General Alan McCrory Wilson, Solicitor General Robert D. Cook, Deputy Solicitor General J. Emory Smith Jr., Assistant Deputy Solicitor General Thomas Tyler Hydrick, and Assistant Deputy Solicitor General Joseph David Spate, all of Columbia, for Petitioners State of South Carolina; Attorney General Alan Wilson and Solicitor William Walter Wilkins, III.

M. Malissa Burnette, Kathleen McColl McDaniel, and Grant Burnette LeFever, all of Burnette Shutt & McDaniel, PA, of Columbia, for Respondents Planned Parenthood South Atlantic, Katherine Farris, M.D., Greenville Women's Clinic, and Terry Buffkin, M.D.; Catherine Peyton Humphreville and Kyla Eastling, both of New York, New York of Planned Parenthood Federation of America, for Respondents Planned Parenthood South Atlantic and Katherine Farris, M.D.; and Caroline Sacerdote and Jasmine Yunus, both of New York, New York of the Center for Reproductive Rights, for Respondents Greenville Women's Clinic and Terry L. Buffkin, M.D.

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Randall Scott Hiller of Randall S. Hiller, P.A., of Greenville; Kimberly A. Parker of Wilmer Cutler Pickering Hale and Dorr LLP, of Washington, D.C.; and Hannah E. Gelbort, of Wilmer Cutler Pickering Hale and Dorr LLP, of Boston, Massachusetts, for American College of Obstetricians and Gynecologists, American Medical Association, and Society for Maternal-Fetal Medicine Amici Curiae.

Christopher Ernest Mills, of Spero Law LLC, of Charleston for American College of Pediatricians; South Carolina Association of Pregnancy Care Centers and Daybreak Lifecare Center Amici Curiae.

Harmon L. Cooper, of Crowell & Moring LLP, of Chicago, Illinois for Women's Rights and Empowerment Network, (WREN), Able SC, Dr. Deborah Billings, Dr. Cara Delay, Dr. Bambi W. Gaddist, The Hive Community Circle, Palmetto State Abortion Fund, Jill Perry, and SisterSong Amici Curiae.

KITTREDGE, JUSTICE

Earlier this year, a majority of this Court found unconstitutional the 2021 version of the Fetal Heartbeat and Protection from Abortion Act (the 2021 Act).^[1] In response to our decision, the South Carolina General Assembly (the legislature) revised the 2021 Act, especially in terms of its legislative findings and purposes, and passed a new version of the Fetal Heartbeat and Protection from Abortion Act (the 2023 Act).^[2] Immediately after the Governor signed the 2023 Act into law, Planned Parenthood South Atlantic and three other medical providers (collectively, Planned Parenthood) filed an action in the circuit court seeking a declaration that the new law is unconstitutional. Upon Planned

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Parenthood's motion, the circuit court enjoined enforcement of the 2023 Act pending resolution of the constitutional challenge. Numerous state officials^[3] (collectively, the State) promptly filed with this Court an emergency petition for supersedeas or, alternatively, a request that we accept the matter in our original jurisdiction and expedite briefing. We denied the petition for supersedeas but granted the alternative request to accept the matter in our original jurisdiction and expedite resolution of the case. For the reasons we explain below, we vacate the preliminary injunction issued by the circuit court and declare the 2023 Act constitutional.

I.

We first acknowledge and confront the obvious: the subject of abortion is a highly contentious and divisive issue in our society. As United States Supreme Court Justice Brett Kavanaugh observed:

Abortion is a profoundly difficult and contentious issue because it presents an irreconcilable conflict between the interests of a pregnant woman who seeks an abortion and the interests in protecting fetal life. The interests on both sides of the abortion issue are extraordinarily weighty.

Dobbs v. Jackson Women's Health Org, 142 S.Ct. 2228, 2304 (2022) (Kavanaugh, J, concurring). In fact, it was acknowledged decades ago that "[m]en and women of good conscience can disagree . . . about the profound moral and spiritual implications of terminating a pregnancy, even in its earliest stage." Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 850 (1992), overruled by Dobbs, 142 S.Ct. at 2242, 2284.

We recognize the tendency of many to view the divisive issue of abortion through a lens shaped by their own politics or personal preferences. To be clear, our decision today is in no way intended to denigrate or exalt any of the valid concerns on either side of the abortion debate, whether those concerns are based in privacy, morality, medicine, religion, bodily autonomy, or something else. Rather, respectful of separation of powers principles and the limited (non-policy) role of the Court, we approach our solemn duty in this case with a single commitment: to honor the rule

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of law. In our constitutional framework, the rule of law does not bend to satisfy personal preferences.

II.

The case before us is unique due to our recent decision in Planned Parenthood I. In that case, by a three-to-two vote (and in five separate writings), the 2021 Act was declared unconstitutional. While the three Justices in the majority reached the same conclusion, their reasoning varied significantly. Much of their relevant analysis centered on the scope of the search and seizure clause of the South Carolina Constitution, which contains a privacy provision. See S.C. Const. art. I, § 10 ("The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures and unreasonable invasions of privacy shall not be violated . . . ." (emphasis added)). Chief Justice Beatty and now-retired Justice Hearn were firmly in the camp of an expansive reading of the privacy provision in article I, section 10. See Planned Parenthood I, 438 S.C. at 199-210, 882 S.E.2d at 776-82 (Hearn, J.); id. at 229-39, 882 S.E.2d at 792-98 (Beatty, C.J., concurring). That expansive...