Greenville Women's v. Bryant

Order of 11/8/02 vacated and
rehearing en banc denied by
order filed 11/15/02. Opinion
filed 9/19/02 is reinstated.
Rehearing en banc granted
by order filed 11/8/02; opinion
filed 9/19/02 is vacated.
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
4444444444444444444444444444444444444444444444447
GREENVILLE WOMEN'S CLINIC;
WILLIAM LYNN, MD, on behalf of
themselves and their patients
seeking abortions,
Plaintiffs-Appellants,
and
CHARLESTON WOMEN'S MEDICAL
CLINIC, INCORPORATED,
Plaintiff, No. 01-2090
v.
COMMISSIONER, SOUTH CAROLINA
DEPARTMENT OF HEALTH AND
ENVIRONMENTAL CONTROL;
GOVERNOR OF SOUTH CAROLINA;
CHARLES MOLONY CONDON, in his
official capacity as Attorney
General of the State of South
Carolina,
Defendants-Appellees.
4444444444444444444444444444444444444444444444448
4444444444444444444444444444444444444444444444447
GREENVILLE WOMEN'S CLINIC;
WILLIAM LYNN, MD, on behalf of
themselves and their patients
seeking abortions,
Plaintiffs-Appellees,
and
CHARLESTON WOMEN'S MEDICAL
CLINIC, INCORPORATED,
Plaintiff, No. 01-2235
v.
COMMISSIONER, SOUTH CAROLINA
DEPARTMENT OF HEALTH AND
ENVIRONMENTAL CONTROL;
GOVERNOR OF SOUTH CAROLINA;
CHARLES MOLONY CONDON, in his
official capacity as Attorney
General of the State of South
Carolina,
Defendants-Appellants.
4444444444444444444444444444444444444444444444448
Appeals from the United States District Court
for the District of South Carolina, at Greenville.
Henry M. Herlong, Jr., District Judge.
(CA-96-1898-6-20)
Argued: April 5, 2002
Decided: September 19, 2002
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.
____________________________________________________________
2
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.
____________________________________________________________
COUNSEL
ARGUED: Bonnie Scott Jones, THE CENTER FOR REPRODUC-
TIVE 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.
____________________________________________________________
OPINION
NIEMEYER, Circuit Judge:
This appeal continues our review of the facial constitutional chal-
lenges 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 Reg-
ulation 61-12 did not place an undue burden on a woman's decision
whether to seek an abortion in violation of the liberty interest pro-
tected 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
3
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.
I
As authorized in §§ 44-41-10 et seq. and 44-7-110 et seq. of the
Code of Laws of South Carolina, the South Carolina Department of
Health and Environmental Control ("DHEC") promulgated Regula-
tion 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 viola-
tion 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 require-
ments. 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 proce-
4
dures that may be provided at the facility. The chapter includes
admissions criteria, staff responsibilities, and details regarding abor-
tion 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 emer-
gency care, staff or consulting physicians shall have admitting privi-
leges 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 ser-
vices "in the specialties of obstetrics/gynecology, anesthesiology, sur-
gery, 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 mainte-
nance 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 spe-
cific requirements for fire protection and safety, including mandatory
fire drills and alarm testing.
5
Chapter 8, entitled "Design and Construction," sets forth require-
ments 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, "Con-
ditions 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 regu-
lation violated the Equal Protection Clause of the Fourteenth Amend-
ment 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 dis-
trict 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 treat-
ing 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
6
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 pro-
cedures, because no other procedure involves the purposeful termina-
tion of a potential life." Id. at 174 (quoting Harris v. McRae, 448 U.S.
297, 325 (1980) (emphasis omitted)). At bottom, we concluded that
"[a] woman in South Carolina who has determined to abort the life
of a fetus can do so without significant interference from South Caro-
lina's regulations and be assured thereby of a dignified and safe pro-
cedure." Id. at 175.
After the Supreme Court denied the plaintiffs' petition for a writ
of certiorari, see 531 U.S. 1191 (2001), we remanded the case to the
district court to address the plaintiffs' other constitutional challenges.
On remand, the district court rejected all but one of the plaintiffs'
other constitutional challenges, concluding that Regulation 61-12 did
not improperly delegate veto power to third parties; that it did not vio-
late the Establishment Clause of the First Amendment; and that it was
not unconstitutionally vague. The Court did, however, find that
§ 102(F)(2) violated patients' right to privacy insofar as it authorized
State inspectors access to patients' records in which the patients were
identified. Greenville Women's Clinic and William Lynn, M.D.
(hereafter, "the abortion clinics") appealed the district court's rulings
upholding the constitutionality of Regulation 61-12, and South Caro-
lina cross-appealed the district court's ruling finding § 102(F)(2) in
violation of patients' privacy rights.
II
The abortion clinics contend first that Regulation 61-12 provides
for the standardless delegation of licensing authority to third persons,
in violation of the Due Process Clause. They assert that the regulation
makes licensing "contingent upon the cooperation of hospitals, clergy
and other third parties, upon whose decisions the regulation imposes
no standard or limitation." To support this argument, they rely on Yick
7
Wo v. Hopkins, 118 U.S. 356, 370 (1886), and Hornsby v. Allen, 326
F.2d 605, 608 (5th Cir. 1964).
Although Regulation 61-12 does not directly grant any veto power
to third persons over the issuance of a license, it does require, as a
condition of licensure, that clinic doctors maintain certain admitting
rights with local hospitals and referral arrangements with other rele-
vant experts. Specifically, Regulation 61-12 requires (1) that each
abortion clinic have an agreement with a physician board-certified in
obstetrics and gynecology who has admitting privileges at a local hos-
pital to be available during "operating-hours," DHEC Reg. 61-12,
§ 205(c)(2); (2) that a physician at the clinic have admitting privileges
at a local hospital with "obstetrical/gynecological services," id.
§ 305(A); see also id. § 309(B); and (3) that each abortion clinic make
arrangements for 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.
South Carolina argues that these admitting privileges and referral
arrangements are necessary for the health and safety of patients.
Moreover, it points out that these requirements are consistent with
existing standards of the American College of Obstetricians and
Gynecologists, as stated in its "Standards for Obstetric-Gynecologic
Services" (7th ed. 1995), and of the National Abortion Federation, as
stated in its "Standards for Abortion Care" (1988). It also denies that
the regulation gives any of the third party specialists a veto power
over licensure of abortion clinics and notes that, in practice, the abor-
tion clinics' fears about being denied a license or losing their license
because of any inability to establish such arrangements are not sup-
ported by the record. Indeed, both Greenville Women's Clinic and Dr.
Lynn, the appellants in this case, are already licensed in South Caro-
lina to perform abortions, and both have admitting privileges or
arrangements with physicians who have admitting privileges at local
hospitals with obstetrical and gynecological services. This evidence,
South Carolina argues, is "fatal" to the abortion clinics' position.
We begin by emphasizing, as we did in Bryant I, that the challenge
to Regulation 61-12 is a facial one and therefore "the most difficult
challenge to mount successfully, since the challenger must establish
8
that no set of circumstances exists under which the Act would be
valid." United States v. Salerno, 481 U.S. 739, 745 (1987). To show
the necessary respect to legislative departments, particularly in light
of Article III's limitation of judicial power to cases and controversies,
we require evidence — as opposed to speculation — sufficient to
rebut the regulation's presumptive constitutionality. Yet, in this
record, we find only speculation.
There is nothing in the record or, indeed, in the general experience
in South Carolina that suggests that the requirements to have admit-
ting arrangements with local hospitals and referral arrangements with
local experts in various related fields present a substantial impediment
to obtaining or retaining a license. To the contrary, the appellants in
this case have obtained licenses and have made such arrangements.
The abortion clinics' asserted fears are further undermined by South
Carolina's requirement that public hospitals not act unreasonably,
arbitrarily, capriciously, or discriminatorily in granting or denying
admitting privileges. See, e.g., In re Zaman, 329 S.E.2d 436, 437
(S.C. 1985); cf. Huellmantel v. Greenville Hosp. Sys., 402 S.E.2d 489,
491 (S.C. Ct. App. 1991) (stating that a physician's interest in being
reappointed to a public hospital staff is protected by procedural and
substantive due process requirements of the Fourteenth Amendment).
The required referral arrangements present even lower practical barri-
ers. Indeed, they are required to be made only "as needed." See DHEC
Reg. 61-12, § 307.
These requirements of having admitting privileges at local hospi-
tals and referral arrangements with local experts are so obviously ben-
eficial to patients, see, e.g., Women's Health Ctr. of West County, Inc.
v. Webster, 871 F.2d 1377, 1382 (8th Cir. 1989), and the possibility
that the requirements will amount to a third-party veto power is so
remote that, on a facial challenge, we cannot conclude that the statute
denies the abortion clinics due process. See Whalen v. Roe, 429 U.S.
589, 601-02 (1977) (noting that, on a facial challenge of a statute, a
"remote possibility" is "not a sufficient reason for invalidating" a stat-
ute); see also Webster, 871 F.2d at 1382 (rejecting due process chal-
lenge to a statute requiring physicians performing abortions to have
surgical privileges at a hospital). This conclusion is further reinforced
by the right given by Regulation 61-12, § 102(L), for clinics to seek
a waiver or exception.
9
Accordingly, we reject the abortion clinics' due process challenge
to Regulation 61-12 based on the regulation's requirement that abor-
tion clinics have admitting privileges to local hospitals and referral
arrangements with relevant experts.
III
The abortion clinics also contend that § 307 of Regulation 61-12 is
a State-sponsored "law respecting an establishment of religion," as
prohibited by the First and Fourteenth Amendments. Section 307 pro-
vides in relevant part:
Arrangements shall be made for consultation or referral ser-
vices in the specialties of . . . clergy . . ., to be available as
needed.
The abortion clinics contend that this section requires that the clinics
"establish formal, ongoing relationships with clergy persons who will
be available to provide counseling services to their patients upon
referral." And they argue that "[u]nder the provision, [the abortion
clinics] must assess their patients' need for religious counseling and
make referrals to such counseling as part of their practice of medicine.
To enforce the regulation, DHEC must assess the adequacy of [the
abortion clinics'] criteria and mechanisms for making such referrals."
Relying on this reading of § 307, the abortion clinics maintain that the
regulation violates the Establishment Clause of the First Amendment
because (1) it coerces participation in religion; (2) it improperly
entangles the State in religion; and (3) it creates "a symbolic union
between church and state."
We conclude, however, that the abortion clinics' argument is
grounded on a substantial misreading of § 307, imputing obligations
and relationships that are not prescribed by the regulation. Section
307 does not require abortion clinics to become involved in religion,
or to counsel their patients in religion, or to make any religious judg-
ments. Rather, they are required only to have "arrangements" for
referring patients to clergy "as needed." These arrangements might
amount to no more than a list of clergy and other specialists or a read-
ily accessible telephone book to consult as required by the needs of
a particular patient. Since the need for a referral cannot be known
10
until the patient requests a referral, the "arrangement" cannot be made
until then. And even then it need not involve more than a communica-
tion to a clergy member expressing the patient's request and perhaps
setting up a consultation time.
The requirements of § 307 simply cannot be construed to "force
physicians to participate in religion," or to "assess patients' needs for
religious counseling," or to "force physicians to support religion" —
as the abortion clinics in this case argue. Moreover, the language of
the regulation does not support the abortion clinics' contention that
the DHEC may evaluate whether abortion clinics have established an
adequate system, adequate number, or adequate variety of clergy to
whom referrals might be made. Finally, § 307 does not grant the reli-
gious community any veto power over the clinic's licensing applica-
tion "thus creating a symbolic union between church and state."
Because the section calls for arrangements "as needed," a clinic need
not assist the patient by making a referral to clergy unless the patient
so requests.
Rather than establishing religion, this section would appear at most
to require a clinic to accommodate the requests of patients to exercise
religion, a right also protected by the First Amendment. See U.S.
Const. amend. I (forbidding any law that "prohibits the free exercise"
of religion). Particularly because of the gravity of a woman's right to
make the abortion decision, the regulation recognizes the patient's
potential desire to consult clergy in making that decision. As the
Supreme Court observed in Planned Parenthood of S.E. Penn. v.
Casey, "the abortion decision . . . is more than a philosophic exercise.
Abortion is a unique act [that is] fraught with consequences." 505
U.S. 833, 852 (1992). And similarly, we observed in Bryant I:
As humankind is the most gifted of living creatures and the
mystery of human procreation remains one of life's most
awesome events, so it follows that the deliberate interfer-
ence with the process of human birth provokes unanswer-
able questions, unpredictable emotions, and unintended
social and, often, personal consequences beyond simply the
medical ones.
222 F.3d at 175.
11
Accordingly, we conclude that the requirement imposed by § 307
on abortion clinics to make arrangements for referral services to
clergy, as needed, does not, on its face, establish religion in violation
of the First Amendment. Cf. Brown v. Gilmore, 258 F.3d 265 (4th Cir.
2001) (holding that a State statute requiring a moment of silence to
enable students to meditate, pray, or engage in any other silent activ-
ity does not establish religion in violation of the First Amendment),
cert. denied, 122 S. Ct. 465 (2001). In so concluding, we note that this
facial challenge cannot encompass every way in which the DHEC
might require a clinic to comply with § 307. Specific instances of
enforcement may, of course, still be challenged on a case-by-case
basis as they occur.
IV
Finally, the abortion clinics contend that Regulation 61-12 is void
for vagueness, in violation of the Due Process Clause. They contend
that the regulation contains a number of requirements that employ
"open-ended" terms lacking any fixed meaning, such as "best prac-
tice" or "case-by-case" basis. They maintain that the regulation uses
ambiguous adjectives, such as "intensive job-related training," which
qualifies a non-physician for work at a clinic. They assert that the reg-
ulation contains misnomers, giving as an example that the facilities
must be kept "neat, clean and free from odors" and noting that
because every medical office has odors, the regulation cannot mean
what it says. Finally, they point to inherently ambiguous requirements
such as the requirement that "all staff and/or consulting physicians
shall have admitting privileges at one or more local hospitals." The
abortion clinics have identified the following list of provisions that
they challenge, and they suggest that this list is not exhaustive:
1. Section 102(J), which prohibits using an abortion
facility name that is similar to the name of another
such facility, but does not define how "similarity" will
be determined.
2. Section 102(L), which allows DHEC to make excep-
tions to Regulation 61-12 "where it is determined that
the health and welfare of the community require the
services of the facility."
12
3. Section 103(F), which gives DHEC discretion with
respect to a particular violation to impose any penalty
within the range of possible penalties.
4. Section 201(B), which requires abortion providers to
create, and DHEC to assess, policies and procedures
on such matters as "patient rights" and "functional
safety."
5. Section 204, which requires that staff be "adequately
trained and capable of providing appropriate service
and supervision to the patients."
6. Section 204(A), which requires that a provider "verify"
an employee's "health and personal background."
7. Section 204(D), which prohibits employees and volun-
teers with "any . . . contagious disease or illness [from
working] in any capacity in which there is a likelihood
of such person transmitting disease to other individu-
als."
8. Section 205(C)(1), which requires physicians perform-
ing abortions to be "properly qualified by training and
experience to perform pregnancy termination proce-
dures."
9. Section 301, which requires the creation of various
policies and procedures "designed to ensure profes-
sional and safe care for patients."
10. Section 305(A), which requires that "all staff and/or
consulting physicians shall have admitting privileges
at one or more local hospitals."
11. Section 306, which requires that "appropriate equip-
ment and supplies" be maintained, with no specific
requirements.
13
12. Section 307, which requires among the required con-
sultation services, "any other indicated field, to be
available as needed."
13. Sections 308(A) and (C), which require abortion facili-
ties to establish a quality improvement plan that
involves "criteria-based" evaluation of patient care.
14. Section 501(A), which requires abortion facilities to
promulgate a range of policies and procedures "to
enhance safety."
15. Section 602(A), which requires adequate space for
sterile supplies and equipment.
16. Section 604, which requires that the facilities "be kept
neat, clean and free from odors."
17. Section 606, which requires that "all outside areas . . .
shall be kept free of . . . grass . . . that may serve . . .
as a haven for insects."
18. Section 807, which requires that an "adequate number
of examination/procedure rooms" and an "adequate
number of recovery rooms" be provided.
19. Chapter 10, which 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."
In sum, the abortion clinics complain that Regulation 61-12 does not
provide sufficient specifics to explain what conduct is actually man-
dated or prohibited.
The district court reviewed the abortion clinics' "litany of phrases
which [were] allegedly unconstitutionally vague," and after consider-
ing the phrases in their context and taking Regulation 61-12 as a
whole, the court concluded that "people of ordinary intelligence
14
would be able to understand what the regulation requires." The court
also stated that the regulation "does not encourage arbitrary and dis-
criminatory enforcement. In fact, it appears that the majority of Regu-
lation 61-12 is identical to the American College of Obstetricians and
Gynecologists ("ACOG") standards for obstetricians and gynecolo-
gists."
"A statute can be impermissibly vague for either of two indepen-
dent reasons. First, if it fails to provide people of ordinary intelligence
a reasonable opportunity to understand what conduct it prohibits. Sec-
ond, if it authorizes or even encourages arbitrary and discriminatory
enforcement." Hill v. Colorado, 530 U.S. 703, 732 (2000). But
because we are "condemned to the use of words, we can never expect
mathematical certainty from our language." Grayned v. City of Rock-
ford, 408 U.S. 104, 110 (1972). As such, a regulation is not void for
vagueness unless it is so unclear with regard to what conduct is pro-
hibited that it "may trap the innocent by not providing fair warning,"
or it is so standardless that it enables "arbitrary and discriminatory
enforcement." Id. at 108. Furthermore, the degree of clarity required
depends on the type of regulation:
Economic regulation is subject to a less strict vagueness test
because its subject matter is often more narrow, and because
businesses . . . can be expected to consult relevant legisla-
tion in advance of action. . . . The Court has also expressed
greater tolerance of enactments with civil rather than crimi-
nal penalties because the consequences of imprecision are
qualitatively less severe.
Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455
U.S. 489, 498-99 (1982) (footnotes omitted).
Although portions of Regulation 61-12 fall short of mathematical
precision, we are satisfied that a reasonable person, reading the regu-
lation in its entirety and in the context of South Carolina statutes,
would be able to interpret the regulation and determine what is
required and what conduct is prohibited. For example, § 205(C)(1),
the violation of which would allow the most serious penalty of the
sections identified as vague by the abortion clinics, provides that
abortion-clinic physicians be "properly qualified by training and
15
experience to perform pregnancy termination procedures." The abor-
tion clinics argue that they do not understand how physicians need to
be qualified to satisfy this provision. Yet, physicians routinely hold
themselves out as qualified to practice in given areas based on their
training and experience, and such a standard is routinely applied in
the medical field to define whether a physician breached the ordinary
standard of care or whether a physician is competent to perform a spe-
cialized surgery. See, e.g., Hoeffner v. The Citadel, 429 S.E.2d 190,
192 (S.C. 1993) (requiring expert testimony to determine defendant
doctor's standard of care and breach thereof). In short, physicians
have no difficulty in stating that they are qualified by training and
experience to practice in a given area or to perform specified proce-
dures. We believe that the other challenged provisions can similarly
be followed by reasonably prudent abortion providers who are mind-
ful of their patients' health and safety.
The most unclear provision in Regulation 61-12 may be Chapter
10, which provides 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." But this provi-
sion essentially appears to give the DHEC no power beyond its ability
to promulgate further regulations as they become necessary. More-
over, any violation of Chapter 10 could only amount to a "Class III"
violation, which would call for nothing more than a warning sanction.
Accordingly, we can see no reason to conclude that the imprecision
of this particular provision violates the abortion clinics' due process
rights.
In addition to concluding that persons of reasonable intelligence
would be able to understand what is required of them by Regulation
61-12, we note that the penalties are civil rather than criminal. Regu-
lation 61-12 divides its penalties into three classes, and a Class I
offense, the most serious, is subject, on the first offense, to a maxi-
mum fine of $1,000. DHEC Reg. 61-12, § 103(F). A Class II offense
is subject, on the first offense, to a maximum fine of $500, id., and
a Class III offense, on the first offense can lead at most, to a warning,
id. Even when a fine is called for, there are suggested factors for
determining the amount, including the facility's efforts to correct the
identified problem, the facility's overall conditions, and the facility's
history of compliance. Id. § 103(E). This consideration of the viola-
16
tor's good faith effort to comply makes arbitrary enforcement even
less likely. Moreover, as observed in Village of Hoffman Estates, we
can expect abortion clinics to consult relevant legislation in advance
of action or to seek clarification from appropriate administrative
sources when necessary. See 455 U.S. at 498.
In the context of a facial challenge to a regulation, it is inappropri-
ate to speculate regarding a worst-case scenario. See Hill, 530 U.S. at
733 (noting that "speculation about possible vagueness and hypotheti-
cal situations not before the Court will not support a facial attack on
a statute when it is surely valid ``in the vast majority of its intended
applications'" (quoting United States v. Raines, 362 U.S. 17, 23
(1960))). Accordingly, we affirm the district court's conclusion that
Regulation 61-12 is not unconstitutionally vague.
V
South Carolina, in its cross-appeal, challenges the district court's
ruling that § 102(F)(2) of Regulation 61-12 is unconstitutional. That
section provides: "Department inspectors shall 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." The district court stated that
because South Carolina identified "no compelling interest in the dis-
closure of identifying information" — i.e., information that reveals to
the State the names of patients procuring abortions — § 102(F)(2)
violates the patient's constitutional right to privacy "insofar as it
requires access to identifying information." In a footnote, the court
allowed that "[t]his constitutional problem can be cured by the plain-
tiffs redacting the documents to remove such information." South
Carolina contends that, notwithstanding the district court's conclu-
sion, it needs the information to monitor abortions and to assure com-
pliance with the health-care standards in Regulation 61-12 aimed at
preserving maternal health. It notes that even the National Abortion
Federation, in its "Standards for Abortion Care," states that the "main-
tenance of complete and accurate records is essential for quality
patient care and meaningful review of services." The Federation's
"Standards of Abortion Care" explains that the "reporting of abortion
procedures and complications to appropriate private and legally sanc-
tioned public agencies generally improve[s] family planning services
17
and public health information." In addition, South Carolina argues
that its statutes and regulations provide adequately for the privacy of
patients' records.
The abortion clinics contend, on the other hand, that disclosure of
patients' names and records violates the patients' privacy rights as
defined in Whalen v. Roe, 429 U.S. 589, 597 (1977) (recognizing a
right to privacy "in avoiding disclosure of personal matters"), and
Walls v. City of Petersburg, 895 F.2d 188, 192 (4th Cir. 1990)
(requiring the State to offer a "compelling" interest before disclosing
protected information). They argue that the confidentiality of patient
information is "vital to women seeking abortions because they may
face harassment from their partners, co-workers, and others for hav-
ing decided to undergo an abortion." And they maintain that disclos-
ing the information also "may force patients to delay their abortions
until they can go to a state where their confidentiality will be main-
tained; to go to an unlicenced provider; or to attempt to self-abort
[sic]. Each of these alternatives poses serious risks to patient health."
South Carolina's abortion statute requires that each abortion be
reported to the DHEC within seven days after the abortion is per-
formed. See S.C. Code Ann. § 44-41-60. The same statute authorizes
the DHEC to promulgate regulations for the maintenance of medical
records and reports. See id. §§ 44-41-70, 44-41-75.
To carry out its mandate, the DHEC promulgated Regulation 61-
12, comprehensively providing for the generation and maintenance of
records and reporting as necessary to carry out the licensing and regu-
lation of abortion clinics. Regulation 61-12 requires that written con-
sent be obtained from each patient obtaining an abortion and that a
copy of the consent be maintained in the patient's record. See DHEC
Reg. 61-12, § 201(b)(10). The regulation prescribes a list of items that
must be included in patients' medical records relating to any abortion
procedure performed and requires that the records be maintained in
a safe location for a minimum of ten years. See id. §§ 401, 402. It also
requires that each laboratory test be documented in a report and main-
tained as part of the patient's record. See id. § 304(E). With respect
to each employee at an abortion clinic, Regulation 61-12 requires that
the clinic maintain a personnel file, documenting the employee's job
description, work assignments, in-service education, licensure, if
18
applicable, and tuberculosis skin-testing. See id. § 204(H). In-service
training programs, providing employees training in specified areas at
least once annually, must also be documented, reflecting the pro-
gram's contents and attendance. See id. § 204(F). The regulation also
requires that clinics maintain records of all controlled substances. See
id. § 303(F). It mandates that the clinics conduct sterilization proce-
dures and maintain records of those procedures, as well as safety-
testing equipment and alarms. See id. §§ 602(C), 702. And the regula-
tion requires that the clinic maintain on its premises the documenta-
tion evidencing its licensure in a manner sufficient to inform patients.
See, e.g., id. §§ 203, 208, 209.
In addition to its requirements for generating and maintaining
records, Regulation 61-12 imposes reporting requirements. Abortion
clinics must report each abortion and each accident or incident to the
Vital Records and Public Health Statistics section of the DHEC. See
id. § 403. In addition, the abortion clinics are subject to regular
inspections, and DHEC inspectors are given access to all "records and
reports" and authority to make photocopies of those documents "re-
quired in the course of inspections or investigations." See id.
§ 102(F)(2).
The abortion clinics do not seriously challenge the requirement of
generating and maintaining records. Indeed, they would have to
acknowledge that each type of record relates directly to the health or
safety requirements imposed by Regulation 61-12. And the Supreme
Court has found that requiring documentation of this type is in the
public interest and does not violate any constitutional right to privacy.
See Whalen v. Roe, 429 U.S. 589 (1977); Planned Parenthood of
Central Missouri v. Danforth, 428 U.S. 52 (1976).
In Whalen, the Supreme Court upheld, against constitutional attack,
the maintenance of a centralized State computer file that contained the
names and addresses of all persons who had obtained certain prescrip-
tion drugs, for which there was both a lawful and an unlawful market.
Recognizing that patients have a protected interest "in avoiding dis-
closure of personal matters" as well as an interest in "independence
in making certain kinds of important decisions," 429 U.S. at 599-600,
the Supreme Court nonetheless held that "the New York program
does not, on its face, pose a sufficiently grievous threat to either inter-
19
est to establish a constitutional violation." Id. at 600. The Court noted
that the invasions of privacy necessary for the public health were not
"meaningfully distinguishable from a host of other unpleasant inva-
sions of privacy that are associated with many facets of health care,"
explaining:
Unquestionably, some individuals' concern for their own
privacy may lead them to avoid or to postpone needed medi-
cal attention. Nevertheless, disclosures of private medical
information to doctors, to hospital personnel, to insurance
companies, and to public health agencies are often an essen-
tial part of modern medical practice even when the disclo-
sure may reflect unfavorably on the character of the patient.
Id. at 602. In response to the appellants' suggestions that the informa-
tion could become public through deliberate or negligent conduct in
numerous ways, the Court stated that "the remote possibility that judi-
cial supervision of the evidentiary use of particular items of stored
information will provide inadequate protection against unwarranted
disclosures is surely not a sufficient reason for invalidating the entire
patient-identification program." Id. at 601-02.
Similarly, in Danforth, the patients attacked a recordkeeping provi-
sion of Missouri's abortion statute contending, among other things,
that it invaded the patient's "right to privacy in the physician-patient
relationship." 428 U.S. at 57. Under the Missouri statute, abortion
providers were required to fill out state forms that were to be main-
tained confidentially and would be used only for statistical purposes.
Nevertheless, the information was reportable to local, state and
national public health officers. In upholding these requirements, the
Court said: "Recordkeeping and reporting requirements that are rea-
sonably directed to the preservation of maternal health and that prop-
erly respect a patient's confidentiality and privacy are permissible."
Id. at 80. The Court explained that the requirements of confidentiality
and the limited duration of document-maintenance (seven years) "as-
sist[ed] and persuad[ed]" the Court to conclude that the recordkeeping
requirement had no "legally significant impact or consequence on the
abortion decision or on the physician-patient relationship." Id. at 81.
Similarly, we noted in our previous opinion in this case that the
recordkeeping and copying requirements were justified to ensure
20
compliance with health care standards. Bryant I, 222 F.3d at 171. We
added that this was particularly so in view of the regulation's require-
ment that all records be treated as confidential. While our conclusion
in Bryant I was limited to holding that the recordkeeping requirement
did not unduly burden the abortion decision, the observation is still
relevant to this discussion on privacy insofar as it supports a conclu-
sion that recordkeeping requirements are meaningful to the overall
health and safety purposes of Regulation 61-12.
Accordingly, we conclude that South Carolina's recordkeeping
requirement does not per se violate the Constitution. This does not,
however, answer the entire question of whether the reporting require-
ments and the potential for publication through court proceedings ren-
ders the requirements unconstitutional, as the abortion clinics argue.
South Carolina must still demonstrate that the records it requires that
contain personal information will be maintained in confidence to the
extent possible as it uses the records to ensure the health and safety
of its citizens. See Whalen, 429 U.S. at 602 (noting that disclosure to
public health agencies are "an essential part of modern medical prac-
tice"); Walls, 895 F.2d at 192 (recognizing limits on an individual's
right to privacy and requiring the government to move a compelling
interest only if there will be disclosure of protected information). We
conclude that South Carolina's statutes and Regulation 61-12 assure
the patient's confidentiality, such that protected information will not
be disclosed.
First, with respect to every facility licensed by the DHEC, the con-
fidentiality of patient files is demanded. Section 44-7-310 of the
South Carolina Code provides that the information received by the
DHEC "which does not appear on the face of the license may not be
disclosed publicly in a manner as to identify individuals or facilities."
S.C. Code Ann. § 44-7-310. The only exception provided is for a pro-
ceeding involving licensure or an order of court. Id. Similarly, § 44-
7-315, which authorizes the disclosure of information relating to
licensed facilities, provides that "the Department may not disclose the
identity of individuals present in a facility licensed by the department
pursuant to this article or subject to inspection by the department."
S.C. Code Ann. § 44-7-315.
The abortion statute itself, which requires that each abortion be
reported to the DHEC, also provides that "the names of the patient
21
and physician may not be reported on the form or otherwise disclosed
to the state registrar." S.C. Code Ann. § 44-41-60. Finally, even in a
court proceeding involving abortion licensure, the abortion statute
requires that the court make an explicit ruling whether "the anonymity
of any woman upon whom an abortion is performed or attempted
shall be preserved from public disclosure if she does not give her con-
sent to such a disclosure." S.C. Code Ann. § 44-41-360. In making
that ruling, the court is explicitly required to apply the appropriate
constitutional standard. See id.Consistent with these statutory mandates to preserve the privacy of
patients, Regulation 61-12 explicitly requires confidentiality of
patients' records. Section 402 provides that "[a]ll records shall be
treated as confidential." Moreover, employees working in abortion
clinics must be trained on the "confidentiality of patient information
and records, and protecting patient rights." See DHEC Reg. 61-12,
§ 204(F)(3). Section 209 requires that each licensed facility have
"written policies and procedures to assure the individual patient the
right to dignity, privacy, safety, and to register complaints with the
department." Id. § 209(A) (emphasis added).
While § 102(F) authorizes a State inspector to review records for
compliance with the abortion statute and with Regulation 61-12, that
authorization to inspect records does not authorize the inspector to
breach the statutory and regulatory mandates to protect the patient's
privacy. The Supreme Court has recognized that "[r]equiring such
disclosures to representatives of the State having responsibility for the
health of the community, does not automatically amount to an imper-
missible invasion of privacy." Whalen, 429 U.S. at 602. As the Court
observed in Danforth, "recordkeeping of this kind, if not abused or
overdone, can be useful to the State's interest in protecting the health
of its female citizens, and may be a resource that is relevant to deci-
sions involving medical experience and judgment." 428 U.S. at 81.
For these reasons, we conclude that the recordkeeping and informa-
tion reporting mechanisms adopted by South Carolina in its statutes
and in Regulation 61-12 do not require unnecessary disclosure of pro-
tected information, in violation of the privacy right identified in
Whalen, 429 U.S. at 599-600. Even though the abortion clinics can
conceive of circumstances where patients' privacy rights could be
22
violated, either deliberately or through negligence, we cannot assume
that the confidentiality measures adopted by South Carolina to pre-
vent such violations will be administered improperly. Whalen, 429
U.S. at 601-02.
Accordingly, we reverse the district court's conclusion that Regula-
tion 61-12 violates patients' privacy rights, as identified in Whalen,
insofar as it permits the disclosure of patient identification to the State
officials administering the program. See Whalen, 429 U.S. at 602-03(finding constitutional a State maintained computer file containing the
names and addresses of patients for whom drugs had been pre-
scribed).
VI
In sum, on the abortion clinics' constitutional challenges to Regula-
tion 61-12 based on (1) a standardless delegation of licensing author-
ity, (2) an alleged violation of the Establishment Clause, and (3) a
claim of vagueness, we reject the abortion clinics' arguments and
affirm the district court. On South Carolina's cross-appeal challeng-
ing the district court's ruling that § 102(F) of Regulation 61-12 is
unconstitutional, we reverse.
AFFIRMED IN PART REVERSED IN PART
KING, Circuit Judge, dissenting:
We today address significant questions arising from one of the
most divisive and contentious issues in our nation's history. Since
Roe v. Wade was decided by the Supreme Court in 1973, the struggle
over the existence and scope of a woman's constitutional right to
choose has been a constant part of our political landscape. In recent
years, state legislatures have taken an increasingly active role in regu-
lating access to abortion; in many places, burdensome regulations
have made abortions effectively unavailable, if not technically illegal.
It is this type of regulation — micromanaging everything from eleva-
tor safety to countertop varnish to the location of janitors' closets —
23
that is challenged in this case. 24 S.C. Code Ann. Regs. 61-12 (Cum.
Supp. 2001) (the "Regulation").1
The State of South Carolina is entitled to make a value judgment,
as a matter of its public policy, to favor childbirth over abortion. Rust
v. Sullivan, 500 U.S. 173, 192-93 (1991); Maher v. Roe, 432 U.S.
464, 474 (1977). In accordance with this prerogative, South Carolina
has made its preference clear. For example, while a citizen of the Pal-
metto State may obtain a "Choose Life" automobile license plate from
the authorities, he may not obtain a "Choose Choice" license plate.2
S.C. Code Ann. § 56-3-8910 (West 2002).3 Insofar as the legislature
in South Carolina wishes to limit the choices of its female citizens,
it has been largely successful. Eighty percent of the State's counties
lack an abortion provider, and between 1992 and 1996, the number
of such providers in the State fell from eighteen to fourteen. Stanley
K. Henshaw, "Abortion Incidence and Services in the United States,
____________________________________________________________
1
Although South Carolina claims that the Regulation treats abortion
clinics similarly to other entities regulated by the State, several facts
belie this assertion. First, as Judge Hamilton aptly pointed out the first
time this case was appealed, "South Carolina does not require licensing
of physicians' offices outside of the abortion context." Greenville
Women's Clinic v. Bryant, 222 F.3d 157, 178 (4th Cir. 2000) (Hamilton,
J., dissenting). Second, the South Carolina Department of Health and
Environmental Control ("DHEC"), in writing the Regulation, specifically
tailored it to abortion clinics. Id. at 184-85. Finally, the Regulation con-
tains some provisions, such as the clergy referral requirement discussed
below, see infra Part II, that are found nowhere else in the South Caro-
lina Code.
2
I express no view on whether this policy is impacted by our recent
decision in Sons of Confederate Veterans, Inc. v. Commissioner of the
Virginia Department of Motor Vehicles, 288 F.3d 610 (4th Cir. 2002).
3
Other South Carolina statutes demonstrate a similar hostility to a
woman's constitutional right to seek an abortion. See, e.g., S.C. Code
Ann. § 1-1-1035 (West 2002) (prohibiting Medicaid funds from being
used to fund abortions); S.C. Code Ann. § 44-41-340(A)(2) (West 2002)
(requiring that women seeking abortions be provided with a brochure
that includes "materials designed to inform the woman of the probable
anatomical and physiological characteristics of the embryo or fetus at
two-week gestational increments"); S.C. Code Ann. § 44-41-40 (West
2002) (entitling private hospitals to refuse to perform abortions).
24
1995-1996," Fam. Plan. Persp., Vol. 30, No. 6, November/December
1998.
South Carolina is not, however, entitled to adopt and pursue an
anti-abortion agenda at the expense of constitutional rights. Having
carefully examined the constitutional challenges made by Greenville
Women's Clinic and other abortion providers (collectively, the
"Plaintiffs") to aspects of the Regulation, I am inexorably led to con-
clude that certain of its provisions violate the Constitution. I part com-
pany with my friends in the majority in four respects:
First, the majority improperly reverses the district court on
the informational privacy issue;
Second, the majority ignores the conflict between the clergy
referral requirement and the Establishment Clause;
Third, the majority upholds unconstitutionally vague and
ambiguous provisions of the Regulation; and
Fourth, the majority endorses a standardless delegation of
state power that contravenes the Due Process Clause.
I will discuss each of these points in turn.4
____________________________________________________________
4
The majority also improperly focuses on the fact that the Plaintiffs
have challenged the Regulation on its face. In United States v. Salerno,
481 U.S. 739 (1987), the Supreme Court articulated a "no set of circum-
stances" test that would, if applicable, make a facial challenge virtually
impossible to win. However, the Salerno doctrine is an embattled one at
best, and its continuing viability is the subject of intense debate. In any
event, the Court has indicated that the Salerno standard does not apply
to three of the four legal claims asserted here. See Santa Fe Indep. Sch.
Dist. v. Doe, 530 U.S. 290, 313-14 (2000) (analyzing a facial challenge
in an Establishment Clause case without applying Salerno); Stenberg v.
Carhart, 530 U.S. 914, 921 (2000) (same for privacy); Chicago v. Mora-
les, 527 U.S. 41, 55 (1999) (plurality) (same for vagueness). So long as
plaintiffs possess standing to raise a claim, facial challenges are gener-
ally evaluated under the same standard as any other constitutional chal-
lenge, and the majority simply confuses the issues in suggesting
otherwise.
25
I.
On the first of the Plaintiffs' four challenges to the Regulation, I
would affirm the district court and hold § 102(F)(2) (the "Disclosure
Provision") to be unconstitutional.5 The Disclosure Provision con-
cerns the State's access to private medical records,6 and the district
court properly found that South Carolina had failed to demonstrate a
sufficient interest in obtaining information identifying the female
patients of abortion clinics.7 The majority incorrectly reverses the dis-
trict court on this issue.
The Supreme Court has identified two types of privacy rights, both
rooted in the Fourteenth Amendment. The first is the right of citizens
to make certain personal choices, such as those discussed by the Court
in Roe v. Wade, 410 U.S. 113 (1973), and its progeny. The second
protects "informational privacy," and it consists of a citizen's right to
control the release of personal information. Whalen v. Roe, 429 U.S.
589, 599-600 (1977). The public disclosure of private medical
____________________________________________________________
5
The Disclosure Provision provides, in pertinent part, that:
Department inspectors shall have access to all . . . records and
reports, and shall have the authority to make photocopies of
those documents required in the course of inspections or investi-
gations.
24 S.C. Code Ann. Regs. 61-12, § 102(F)(2) (Cum. Supp. 2001).
6
Pursuant to § 401(A)(1) of the Regulation, abortion clinics in South
Carolina are required to maintain records with various identifying infor-
mation, including:
name, address, telephone number, social security number, date of
birth, father's and mother's names when patient is a minor, hus-
band's name, and name, address and telephone number of person
to be notified in the event of an emergency.
24 S.C. Code Ann. Regs. 61-12, § 401(A)(1) (Cum. Supp. 2001).
7
By definition, the Regulation only applies to clinics "in which any
second trimester or five or more first trimester abortions per month are
performed." 24 S.C. Code Ann. Regs. 61-12, § 101(B) (Cum. Supp.
2001). However, for ease of reference, I use the terms "clinics" or "pro-
viders," without any further elaboration, to refer to those facilities subject
to the Regulation.
26
records, and the personal and confidential information contained
therein, implicates this informational privacy right.
Of course, the right to informational privacy is not absolute, and a
state does not necessarily violate that right by requiring disclosure of
private medical records. Id. at 602. To determine whether the Disclo-
sure Provision infringes the right to informational privacy, we con-
sider three factors. First, the information must fall within the zone of
the constitutional right to privacy. Walls v. City of Petersburg, 895
F.2d 188, 192 (4th Cir. 1990). Second, if the information is within
this zone, then "the defendant has the burden to prove that a compel-
ling governmental interest in disclosure outweighs the individual's
privacy interest." Id. Finally, any safeguards provided by the State
against improper disclosure will serve to dilute the individual's pri-
vacy interest. Overall, the State's need for private information must
be balanced against the interest of the person whose privacy is at
stake. Id. at 192-94. As the district court properly determined, South
Carolina has failed to demonstrate a sufficient need for access to
patients' private identifying information, rendering its Disclosure Pro-
vision invalid. See Greenville Women's Clinic v. Bryant, Memoran-
dum of Decision, CA No. 6:96-1898-20 (D.S.C. Aug. 31, 2001) (the
"Memorandum of Decision").
A.
The constitutional right to privacy in pregnancy-related medical
information is firmly established. Indeed, the Supreme Court has
emphasized that the decision of a woman to exercise her constitu-
tional right to choose "is an intensely private one that must be pro-
tected in a way that assures anonymity." Thornburgh v. Am. Coll. of
Obstetricians and Gynecologists, 476 U.S. 747, 766 (1986), overruled
in part on other grounds, Planned Parenthood v. Casey, 505 U.S. 833(1992); see Hodgson v. Minnesota, 497 U.S. 417, 463 (1990) ("Few
decisions are more personal and intimate, more properly private, or
more basic to individual dignity and autonomy, than a woman's deci-
sion . . . whether to end her pregnancy.") (quoting Thornburgh, 476
U.S. at 772); see also Skinner v. Ry. Labor Executives' Ass'n, 489
U.S. 602, 617 (1989) (subjecting drug testing program to scrutiny
under the Fourth Amendment because it threatened to reveal private
information such as pregnancy). Given the Court's recognition of the
27
private nature of reproductive decisions, the women seeking services
at abortion clinics in South Carolina unquestionably possess a consti-
tutionally protected privacy interest in the information sought by the
State under the Disclosure Provision.
B.
In assessing the validity of the Disclosure Provision, we must also
consider whether South Carolina has established "a compelling gov-
ernmental interest in disclosure [that] outweighs the individual's pri-
vacy interest." Walls, 895 F.2d at 192; see also Carey v. Population
Servs. Int'l, 431 U.S. 678, 686 (1977). In this regard, the pivotal ques-
tion is whether the State can sufficiently justify its request for disclo-
sure of constitutionally protected information.
The Supreme Court has recognized that a state has an interest in
protecting maternal health, and that it may properly collect otherwise
private medical information related to this purpose. See Planned Par-
enthood of Cent. Mo. v. Danforth, 428 U.S. 52, 80 (1976). However,
as Walls informs us: the "regulation``may be justified only by compel-
ling state interests, and must be narrowly drawn to express only those
interests.'" Walls, 898 F.2d at 192 (quoting Carey, 431 U.S. at 686).
South Carolina has failed to demonstrate that it has a compelling
need to copy any patient identifying information. The only justifica-
tion offered by the State is that such information is needed in order
to investigate complaints against abortion clinics. However, the State
has failed to demonstrate a need to contact patients in such situations.
In fact, complaints involving compliance with issues such as struc-
tural building requirements and staff qualifications could be fully
investigated by the State without contacting the female patients. And
on issues involving patient care, the affected patients would most
likely consent to the disclosure of their identity.
In limited situations, the State might have a valid need to obtain a
patient's identity in order to investigate anonymous complaints or to
seek corroborating evidence. However, South Carolina's interest in
obtaining patients' identifying information in those limited situations
does not support the disclosure requirement in the Regulation, which
gives the State access to information identifying every patient of every
28
abortion clinic in the State. Such a disclosure requirement is vastly
overbroad: in the apparent expectation that, someday, some of the
information might be useful, it tramples the privacy interest of every
woman who seeks an abortion at a South Carolina clinic.
In short, South Carolina has failed to demonstrate a compelling
need for access to information identifying every patient of the abor-
tion clinics in the State. As the district court properly recognized, the
goals of the Disclosure Provision would be adequately served if the
State is provided with access to redacted records. Memorandum of
Decision, at 8-9. And in those limited instances where redacted
records might be insufficient, the State has failed to narrowly tailor
the Disclosure Provision to serve its interest in disclosure.
C.
In assessing whether the Disclosure Provision contravenes the right
to informational privacy, we must also consider the probability of the
unauthorized disclosure of the information collected by the State.
Walls, 895 F.2d at 194; see also Watson v. Lowcountry Red Cross,
974 F.2d 482, 487-88 (4th Cir. 1992). Any safeguards designed by the
State to prevent such improper disclosure serve to weaken a woman's
privacy interest and reduce the need to prohibit South Carolina from
collecting the information in the first place. Walls, 895 F.2d at 194.
In this case, the State has failed to show that it will protect
the private medical information of female patients. To begin
with, the statutes relied on by South Carolina do not erect an absolute
bar to public disclosure of such information. See S.C. Code Ann.
§ 44-7-310 (West 2002);8 S.C. Code Ann. § 44-7-315 (West
____________________________________________________________
8
Section 310, regarding "Certain information not to be disclosed pub-
licly," states:
Information received by the Office of Health Licensing . . . may
not be disclosed publicly in a manner as to identify individuals
or facilities except in a proceeding involving the licensure or cer-
tification of need of the facility or licensing proceedings against
an employee of the facility or as ordered by a court of competent
jurisdiction.
S.C. Code Ann. § 44-7-310 (West 2002) (emphasis added).
29
2002).9 To the contrary, those statutes contain gaping holes in the pro-
tections they afford against public disclosure. For example, § 44-7-
310 authorizes the public disclosure of identifying information during
licensure proceedings. And § 44-7-315 requires, upon written request,
the public disclosure of information obtained through inspection.
While § 44-7-315 serves to prohibit South Carolina from "disclos-
[ing] the identity of individuals present in a facility," it fails to explain
what "present in a facility" is intended to mean. Under one interpreta-
tion, it might only protect the identity of persons present in the facility
at the time records are released. Under another plausible interpreta-
tion, it could cover only those persons typically present in the facility
— namely the permanent staff. And among other possible interpreta-
tions, it could mean that the identity of every person ever present in
the facility may not be disclosed, which would include investigators
and other State officials. In short, this ambiguous statutory language
does not sufficiently ensure the confidentiality of the female patients
of South Carolina abortion clinics.
Second, despite the State's assurances of confidentiality, private
medical information has been leaked to the public. Although George
Moore, the Director of Outpatient and Home Care in the Department
of Health and Environmental Control ("DHEC"), testified that "strict
confidentiality is maintained as it always is, records are secured in the
office, and individual records are not released under Freedom of
Information Act requests," South Carolina has failed to follow this
directive. In point of fact, the evidence shows that abortion protesters
distributed a flyer containing a photocopy of a medical record
obtained from DHEC concerning a fifteen-year-old girl's pregnancy
termination. Furthermore, physicians testified that similar types of
confidential information collected by the State have been made avail-
able to the public.
____________________________________________________________
9
Section 315, titled "Disclosure of information regarding facility or
home," reads, in pertinent part:
Information received by the Division of Health Licensing . . .
must be disclosed publicly upon written request to the depart-
ment. . . . The department may not disclose the identity of indi-
viduals present in a facility licensed by the department . . . .
S.C. Code Ann. § 44-7-315 (West 2002) (emphasis added).
30
D.
It is of significance, in assessing the validity of the Disclosure Pro-
vision, that the recordkeeping requirements established by South Car-
olina differ markedly from the types of data collection systems other
courts have approved. For example, in Whalen v. Roe, 429 U.S. 589(1977), the Supreme Court concluded that New York was constitu-
tionally permitted to obtain and record, in a centralized computer file,
the names and addresses of all persons who obtained, pursuant to a
doctor's prescription, certain controlled substances for which there
were both lawful and unlawful markets. Id. at 591-94. In that situa-
tion, New York provided elaborate security against the improper dis-
closure of private medical information, including storing the records
in a receiving room surrounded by an alarmed and locked wire fence,
and requiring destruction of the records after five years. Id. at 593-94.
Further, the public disclosure of patients' identities was expressly pro-
hibited by both a statute and an administrative regulation. Id. at 594-
95.
The situation in this case differs markedly from Whalen in at least
three respects. First, as discussed above, see supra Part I.C., South
Carolina's Disclosure Provision does not sufficiently ensure the confi-
dentiality of private medical information. Second, the medical records
of abortion patients differ in substance from the records collected in
Whalen. In Whalen, the information compiled on drug use provided
potentially incriminating evidence about the patients themselves, not
just about the medical doctors who wrote the prescriptions. Id. at 592.
Here, the private medical information sought by South Carolina is not
for the purpose of investigating the female patients of abortion clinics.
Rather, the State claims that such information will facilitate its inves-
tigations of the clinics providing abortion services.10 Finally, the
____________________________________________________________
10
Where this Court has permitted a government entity to collect and
maintain private information, the government interest has consistently
related to the person whose privacy is at stake. See Walls, 895 F.2d at
192-93 (upholding data collection of police department applicants
because of state interest in obtaining personal information of employees);
Hodge v. Jones, 31 F.3d 157, 166 (4th Cir. 1994) (upholding data collec-
tion of reports of child abuse to aid future investigations of parents). The
majority has unjustifiably extended these earlier decisions by now allow-
31
plaintiffs in Whalen claimed to fear the disclosure of their medical
records because of the stigma attached to the use of controlled sub-
stances. Id. at 595 n.16. In this case, women seeking abortions in
South Carolina have a great deal more to fear than stigma. The pro-
tests designed to harass and intimidate women entering abortion clin-
ics, and the violence inflicted on abortion providers, provide women
with ample reason to fear for their physical safety. See Thornburgh,
476 U.S. at 767 n.12.
For these reasons, the identifying information contained in medical
records of women seeking services at abortion clinics in South Caro-
lina must be kept confidential. The majority, in my view, is entirely
unable to justify South Carolina's broad access to unredacted records,
and it has not shown that the purported safeguards ameliorate privacy
concerns. In sum, the Disclosure Provision violates the constitution-
ally protected right of informational privacy, and the majority is
incorrect to conclude otherwise.
II.
I also disagree with the majority on the constitutionality of § 307
of the Regulation (the "Consultation Provision").11 The Plaintiffs
____________________________________________________________
ing South Carolina to collect patient information in order to investigate
clinics.
In the only situation where the need to obtain private information
related to a third party, the scope of the privacy invasion was narrowly
tailored to the need for disclosure. In Watson, the plaintiff, who asserted
a claim against a Red Cross donation center, was allowed to obtain dis-
covery from an anonymous blood donor. 974 F.2d at 484. Thus, the
interest in obtaining the information related to the Red Cross, while it
was the donor whose privacy was compromised. However, in that case,
only one donor's identity was at stake, and it was revealed only to the
court. The trial court allowed the plaintiff to submit questions to counsel
for the anonymous donor, but the identities of the donor and the donor's
counsel were known only to the court. Id. at 484, 487. In contrast, the
South Carolina Regulation provides the State with access to every patient
record without any judicial supervision on how the information is used.
11
The Consultation Provision of the Regulation, found in § 307,
requires that:
32
maintain that the Consultation Provision unconstitutionally compels
South Carolina abortion clinics to form professional affiliations with
members of the clergy and entangles the State in religious matters.12
The majority, on the other hand, views the Plaintiffs' concerns as
"grounded on a substantial misreading of § 307, imputing obligations
and relationships that are not prescribed by the regulation." Ante at
10. Specifically, the majority believes that "[t]hese arrangements
might amount to no more than a list of clergy and other specialists or
a readily accessible telephone book to consult as required by the
needs of a particular patient," and that no arrangement for religious
counseling need be made until a patient requests the referral. Ante at
10-11.
In concluding that the Consultation Provision complies with the
Establishment Clause, the majority interprets the clergy referral
requirement in a plainly implausible way. Under a reasonable inter-
pretation of the Consultation Provision, abortion providers in South
Carolina must establish professional affiliations with members of the
clergy in order to ensure that religious consultation and referral ser-
vices will be available to their female patients. And to enforce this
Provision, the State inevitably must establish and enforce religious
____________________________________________________________
Arrangements shall be made for consultation or referral services
in the specialties of obstetrics/gynecology, anesthesiology, sur-
gery, psychiatry, psychology, clinical pathology and pathology,
clergy, and social services, as well as any other indicated field,
to be available as needed.
24 S.C. Code Ann. Regs. 61-12, § 307 (Cum. Supp. 2001) (emphasis
added).
12
Plaintiffs also contend that the Consultation Provision improperly
gives religious leaders veto authority over the issuance of abortion
licenses. Because I would find that the Provision violates the Establish-
ment Clause in excessively entangling the State with religious counsel-
ing, I would not reach the issue of whether the Consultation Provision
might also give religious leaders too much authority over government
functions. See generally Larkin v. Grendel's Den, Inc., 459 U.S. 116(1982). I do, however, address a similar contention in dealing with the
Regulation's improper delegation of state authority. See infra Part IV.
33
criteria. Because the Establishment Clause13 precludes South Carolina
from becoming entangled with religion in this way, the Consultation
Provision is unconstitutional.
A.
In South Carolina, duly promulgated state regulations, like statutes,
are to "receive practical, reasonable and fair interpretation consonant
with the purpose, design and policy of lawmakers." Whiteside v.
Cherokee County Sch. Dist. No. 1, 428 S.E.2d 886, 888 (S.C. 1993).
Viewed in this way, the express terms of the Consultation Provision
cannot support the majority's strained interpretation; the Provision
unequivocally requires clinics to establish prearrangements for con-
sultation services with members of the clergy. Although the services
must be "available as needed," the arrangements plainly must be made
before a clinic can obtain a license. Moreover, the "arrangement"
requirement of the Consultation Provision indicates that abortion pro-
viders must do more than merely make a telephone book available to
their female patients. Indeed, for a female patient to have access to
specialists in the fields specified in the Consultation Provision, such
as anesthesiology or surgery, a telephone book would not be particu-
larly helpful. And the majority gives no reason why the mandated "ar-
rangements" with members of the clergy should be treated differently.
Further, the majority's interpretation of the Consultation Provision
inexplicably ignores the explicit intent of the South Carolina official
who wrote the Regulation. According to Mr. Moore, the Director of
Outpatient and Home Care in the Division of Licensing of DHEC,
and the state official who drafted the Regulation, clinics must make
prearrangements for consultation.14 In fact, Mr. Moore testified that
____________________________________________________________
13
The Establishment Clause provides that "Congress shall make no law
respecting an establishment of religion." U.S. Const. amend. 1. It has
been incorporated against the states through the Fourteenth Amendment.
Zelman v. Simmons-Harris, 534 U.S. ___, 122 S. Ct. 2460, 2465 (2002);
Everson v. Bd. of Educ. of Ewing Township, 330 U.S. 1, 15-16 (1947).
14
In general, an agency's interpretation of its own regulation deserves
considerable deference. See Brown v. S.C. Dep't of Health & Envtl. Con-
trol, 560 S.E.2d 410, 415 (S.C. 2002). Although a position taken in liti-
34
prior arrangements are required with "maybe two or three different
denominations just to be on call." Although "[i]t probably wouldn't
be a Catholic priest," Mr. Moore opined that they "would just have
to have Protestant and whatever else." Given the plain terms of the
Consultation Provision and the unequivocal statements of its drafter,
abortion providers in South Carolina must, in order to comply with
the Provision, do more than merely provide their patients with a tele-
phone book. Ante at 10.
B.
It is with this interpretation of the clergy referral requirement in
mind that I turn to an assessment of the constitutionality of the Con-
sultation Provision. In order to determine whether a regulation vio-
lates the Establishment Clause, we must apply the three-prong test
that the Supreme Court articulated in Lemon v. Kurtzman, 403 U.S.
602 (1971). First, the regulation must have a secular purpose. Second,
the primary effect of the regulation must neither advance nor inhibit
religion. And third, the regulation must not foster an excessive gov-
ernment entanglement with religion. Id. at 612-13. As explained
below, the Consultation Provision clearly violates Lemon's third
prong, and it probably contravenes the second prong as well.
1.
The first prong of the Lemon test presents a fairly low hurdle for
the State. Brown v. Gilmore, 258 F.3d 265, 276 (4th Cir.), cert.
denied, 122 S. Ct. 465 (2001). Here, the Consultation Provision
____________________________________________________________
gation (which is one way Mr. Moore's view could be characterized) may
be treated differently, a policy statement should be given deference
where it reflects the considered and reasoned judgment of the agency,
rather than a post hoc rationalization of an enforcement decision. See
Monongahela Power Co. v. Reilly, 980 F.2d 272, 279 (4th Cir. 1993).
Mr. Moore's testimony therefore is entitled to consideration in assessing
what the Consultation Provision requires. Further, because South Caro-
lina inspectors have broad discretion to determine what might violate the
Consultation Provision, abortion providers would be well advised to heed
DHEC's warning on how the law will be enforced.
35
appears to have a secular purpose. The State promulgated it for the
ostensible purpose of protecting maternal health and to ensure that
women seeking abortion services have access to experts in a range of
specialty fields. The first prong of Lemon contemplates an inquiry
into the subjective intentions of the government. See Wallace v. Jaf-
free, 472 U.S. 38, 56 (1985) ("[I]t is appropriate to ask ``whether gov-
ernment's actual purpose is to endorse or disapprove of religion.'")
(quoting Lynch v. Donnelly, 465 U.S. 668, 690 (O'Connor, J., concur-
ring)). Without more evidence of a religious purpose, the Consulta-
tion Provision survives the first prong of the Lemon test.
2.
By contrast, the Consultation Provision in all likelihood fails
Lemon's second prong. This prong's "primary effect" test requires an
objective assessment, rather than a subjective one, and it measures
whether the principal effect of government action "is to suggest gov-
ernment preference for a particular religious view or for religion in
general." Barghout v. Bureau of Kosher Meat & Food Control, 66
F.3d 1337, 1345 (4th Cir. 1995). Here, the Consultation Provision
compels physicians providing abortion services to establish affilia-
tions with religious institutions. This mandatory affiliation seems to
convey the message that the State endorses the beliefs of the religious
counselors. Further, the clergy referral requirement appears to pro-
mote the religious mission of those institutions given referral arrange-
ments.15 Under our Constitution, however, the government is not
____________________________________________________________
15
Unlike those situations where courts have permitted religious groups
to provide state-sponsored counseling services, the message of the clergy
in this case is purely religious. Further, the counseling services here must
be provided by pervasively sectarian organizations. South Carolina is not
merely allowing religious groups to participate on an equal basis in grant
programs; it has facilitated religious indoctrination. In Bowen v.
Kendrick, 487 U.S. 589 (1988), the Supreme Court held that religious
groups could receive funds from the government in order to counsel
teenagers regarding adolescent sexual relations. However, the counseling
services were not inherently religious, the grant program directed that the
money should be spent for secular purposes, and the groups providing
counseling services were not pervasively sectarian. See id. at 604-05("The services to be provided under the AFLA are not religious in char-
acter, nor has there been any suggestion that religious institutions or
organizations with religious ties are uniquely well qualified to carry out
those services.") (internal citation omitted); see also id. at 610-12.
36
permitted to sponsor the indoctrination of religious beliefs in this
manner.
More disturbingly, South Carolina has indicated it will play favor-
ites among religions in enforcing the Consultation Provision.16 The
interpretation given to this Provision by DHEC's Division of Licens-
ing unquestionably violates the hallmark of the Establishment Clause,
which is that the government must be neutral with respect to different
religious beliefs. According to Mr. Moore, referral arrangements with
members of the clergy must include at least one Protestant minister,
and they need not include a Catholic priest. This governmental prefer-
ence for certain religious beliefs violates what Judge Luttig has char-
acterized as "the most fundamental tenet of the Establishment Clause
[which] is that the imprimatur of the state shall not directly or indi-
rectly be placed upon one religious faith over another." Id. at 1346
(Luttig, J., concurring). Given these defects, the Consultation Provi-
sion almost certainly contravenes the second prong of the Lemon test.
3.
In any event, the Consultation Provision surely fails the third prong
of the Lemon test, because it excessively entangles the State with reli-
gion. Under Lemon's final prong, the Court requires that we analyze
"the character and purposes of the institutions that are benefited, the
nature of the aid that the State provides, and the resulting relationship
between the government and religious authority." Lemon, 403 U.S. at
615. In this case, the benefited institutions are quintessentially reli-
gious. Unlike the religious groups that have elsewhere been allowed
to participate in government programs, the institutions that receive the
____________________________________________________________
16
If the Consultation Provision is enforced in a manner where certain
religions are actually favored, as Mr. Moore suggests, it should be
enjoined without applying the Lemon analysis. Larson v. Valente, 456
U.S. 228, 252 (1982) ("[T]he Lemon v. Kurtzman ``tests' are intended to
apply to laws affording a uniform benefit to all religions, and not to pro-
visions . . . that discriminate among religions."); see also County of Alle-
gheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573, 604 (1989)
("Whatever else the Establishment Clause may mean. . . it certainly
means at the very least that government may not demonstrate a prefer-
ence for one particular sect or creed.").
37
benefit of referral arrangements under the Consultation Provision are
pervasively sectarian. By virtue of the Consultation Provision,
churches in South Carolina have been given additional opportunities
to proselytize; female patients of abortion providers will now be
referred to a preacher at the direction of the State. Such a referral
requirement is unprecedented, and it should be recognized as uncon-
stitutional.
Further, the State's enforcement of the Consultation Provision will
inevitably entangle the State in religious counseling. DHEC inspec-
tors and bureaucrats must determine not only whether the mandated
clergy referral arrangements have been made, but also whether the
arrangements with members of the clergy satisfy criteria that are nec-
essarily religious. To enforce the Consultation Provision, the State
must inquire into who qualifies as an appropriate member of the
"clergy," and it must decide whether the referral arrangements are suf-
ficient to meet the religious needs and preferences of female patients.
In requiring DHEC inspectors to determine whether abortion provid-
ers have complied with these religious requirements, the Consultation
Provision excessively entangles the State in religious indoctrination.
As such, it violates the Establishment Clause, and it should be invali-
dated.
III.
While I agree with the majority that most of the challenged aspects
of the Regulation are sufficiently clear to withstand a constitutional
vagueness analysis,17 I see two of those provisions as unconstitution-
ally vague. First, the inspectors for South Carolina have unbridled dis-
cretion to decide whether an abortion provider in that State has
somehow deviated from an amorphous "best practices" requirement,
which is found both in Chapter 10 and § 103 of the Regulation (the
"Best Practices Provisions"). See 24 S.C. Code Ann. Regs. 61-12,
Chapter 10 (Cum. Supp. 2001); 24 S.C. Code Ann. Regs. 61-12,
§ 103(C) (Cum. Supp. 2001).18 Second, under a particularly incom-
____________________________________________________________
17
In particular, I agree that§§ 102(J), 102(L), 201(B), 204, 205(C)(1),
301, 306-308, 501(A), 602(A), 604, 606, and 807 of the Regulation are
not unconstitutionally vague.
18
Chapter 10 of the Regulation provides: "Conditions arising that have
not been addressed in these regulations shall be managed in accordance
38
prehensible section, abortion clinics in South Carolina must arrange
for local hospital admitting privileges for either some or all of their
staffs. However, exactly which staff members are required to possess
such privileges is inherently ambiguous because of an unfortunately
placed "and/or" connector found in § 305 of the Regulation (the
"And/Or Provision"). See 24 S.C. Code Ann. Regs. 61-12, § 305(A)
(Cum. Supp. 2001).19 The majority unjustifiably and incorrectly
ignores the fundamental vagueness of these Provisions.
The Due Process guarantee of the Fourteenth Amendment prohibits
state statutes and regulations that are "so vague that men of common
intelligence must necessarily guess at [their] meaning and differ as to
[their] application." Smith v. Goguen, 415 U.S. 566, 572 n.8 (1974)
(quoting Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926)).
Further, such statutes and regulations may not be so vague that they
invite arbitrary and discriminatory enforcement. Kolendar v. Lawson,
461 U.S. 352, 357 (1983); see also Papachristou v. City of Jackson-
ville, 405 U.S. 156, 162 (1972) (invalidating an ordinance on vague-
ness grounds partially because it encouraged "arbitrary and erratic
arrests and convictions"); see generally City of Chicago v. Morales,
____________________________________________________________
with the best practices as interpreted by the Department." 24 S.C. Code
Ann. Regs. 61-12, Chapter 10 (Cum. Supp. 2001). Section 103(C) simi-
larly states that "Class III violations are those that are not classified as
Class I or II in these regulations or those that are against the best prac-
tices as interpreted by the Department." 24 S.C. Code Ann. Regs. 61-12,
§ 103(C) (Cum. Supp. 2001). The majority concentrates on Chapter 10
in discussing the "best practices" requirement. Ante at 16. However,
because Chapter 10 and § 103(C) contain the same "best practices" lan-
guage, I refer to them collectively as the "Best Practices Provisions."
19
Section 305(A) of the Regulation reads:
All staff and/or consulting physicians shall have admitting privi-
leges at one or more local hospitals that have appropriate obstet-
rical/gynecological services or shall have in place documented
arrangements approved by the Department for the transfer of
emergency cases when hospitalization becomes necessary.
24 S.C. Code Ann. Regs. 61-12, § 305(A) (Cum. Supp. 2001) (emphasis
added).
39
527 U.S. 41, 56 (1999) (plurality); Grayned v. City of Rockford, 408
U.S. 104, 108-09 (1972).
A.
In order to be consistent with the requirements of due process, stat-
utes and regulations with criminal sanctions must achieve a higher
level of clarity than those which provide for civil penalties only. Vil-
lage of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S.
489, 498-99 (1982) ("The Court has also expressed greater tolerance
of enactments with civil rather than criminal penalties because the
consequences of imprecision are qualitatively less severe."). While
the majority acknowledges this principle, it inexplicably and incor-
rectly assumes that violations of the Regulation carry civil penalties
only. Ante at 4, 16. On the contrary, a violation of the general licens-
ing article of the South Carolina Code, which applies specifically to
health care facilities providing abortion services to women in South
Carolina, constitutes a misdemeanor criminal offense. S.C. Code Ann.
§ 44-7-340 (West 2002). In order to be constitutional, the Regula-
tion's licensing scheme must therefore be analyzed under the standard
of clarity applicable to criminal offenses.
Further, even if criminal penalties were not implicated, the Regula-
tion threatens the exercise of constitutionally protected rights. For this
reason alone, it must achieve a heightened level of precision. Colautti
v. Franklin, 439 U.S. 379, 391, 394 (1979) (noting that regulations
that threaten abortion rights are held to a higher level of clarity).
Indeed, the constitutionally protected right to seek an abortion has
been treated with such hostility that abortion providers are uniquely
susceptible to being targeted by arbitrary and discriminatory enforce-
ment. Women's Med. Ctr. of Northwest Houston v. Bell, 248 F.3d
411, 422 (5th Cir. 2001) ("Especially in the context of abortion, a
constitutionally protected right that has been a traditional target of
hostility, standardless laws and regulations . . . open the door to
potentially arbitrary and discriminatory enforcement."). Given the fact
that the South Carolina licensing scheme threatens criminal penalties,
and in light of the additional fact that constitutionally protected rights
are at stake, the provisions of the Regulation must be especially clear
as to what is required and what is prohibited.
40
B.
1.
The majority candidly concedes that the "best practices" require-
ment makes Chapter 10 the "most unclear provision in Regulation 61-
12." Ante at 16. Under the Best Practices Provisions, a South Carolina
abortion provider must comply with "best practices as interpreted by
the Department." 24 S.C. Code Ann. Regs. 61-12, Chapter 10 (Cum.
Supp. 2001); 24 S.C. Code Ann. Regs. 61-12, § 103(C) (Cum. Supp.
2001). Despite recognizing that the Best Practices Provisions lack
clarity, the majority fails to subject them to a vagueness analysis. The
proper answers to two questions dispose of the issue: Would a person
of reasonable intelligence understand what is required by the Best
Practices Provisions? The answer is "No." Is the language of these
Provisions so standardless that it enables arbitrary and discriminatory
enforcement? The answer is "Yes."
The majority seems to rely, inappropriately, on a reading of the
Regulation "in its entirety" in deciding to uphold the Best Practices
Provisions. Ante at 15. The Supreme Court, however, has recently
demonstrated that overbreadth and vagueness analyses are to be con-
ducted on a provision-by-provision basis. See Ashcroft v. Free Speech
Coalition, 534 U.S. ___, 122 S. Ct. 1389, 1405-06 (2002) (analyzing
different provisions of the Child Pornography Prevention Act sepa-
rately and concluding that only certain subsections violated the First
Amendment). Standing alone, the Best Practices Provisions contained
in Chapter 10 and § 103 of the Regulation offer no guidance on the
scope of their coverage, and they are therefore unconstitutionally
vague.
2.
The And/Or Provision found in § 305(A) of the Regulation, as the
majority acknowledges, is also "inherently ambiguous." Ante at 12.
This Provision requires that "[a]ll staff and/or consulting physicians
shall have admitting privileges at one or more local hospitals." 24
S.C. Code Ann. Regs. 61-12, § 305(A) (Cum. Supp. 2001) (emphasis
added). Because of the "and/or" connector, abortion providers in
South Carolina, who are subject to criminal sanctions if they violate
41
the Regulation, lack sufficient notice as to what is required of them.
Cf. United States v. Bush, 70 F.3d 557, 562 (10th Cir. 1995) (discuss-
ing the inherent vagueness of an indictment with an "and/or" connec-
tor). On the one hand, the And/Or Provision might require all staff
physicians and all consulting physicians to have admitting privileges
at local hospitals. On the other hand, it might require either all staff
physicians or all consulting physicians to have admitting privileges.
To add to the confusion, the word "staff" in this Provision could be
functioning either as a noun or as an adjective. If it is a noun, it is pos-
sible to read the And/Or Provision to require that the receptionist, at
every abortion clinic in the State, possess admitting privileges.
3.
In sum, neither the Best Practices Provisions nor the And/Or Provi-
sion set forth a sufficiently ascertainable standard of conduct to pro-
vide the abortion providers in South Carolina with proper notice of
their scope. Therefore, we should hold each of these Provisions to be
unconstitutionally vague.
IV.
Finally, the majority errs in ruling that the Regulation's delegation
of decisionmaking authority over abortion licensing complies
with due process requirements. Several parts of the Regulation give
private parties authority over the licensing of abortion providers
in South Carolina. These provisions include: § 205(C)(2),20
____________________________________________________________
20
Section 205(C)(2) of the Regulation provides:
The facility shall enter into a signed written agreement with at
least one physician board-certified in obstetrics and gynecology
(if not one on staff) who has admitting privileges at one or more
local hospitals with OB/GYN services to ensure his/her avail-
ability to the staff and patients during all operating hours.
24 S.C. Code Ann. Regs. 61-12, § 205(C)(2) (Cum. Supp. 2001).
42
§ 305(A),21 and § 309(B)22 (collectively, the "Hospital Privilege Pro-
visions"), as well as the Consultation Provision. Because these Provi-
sions give private parties unguided power to refuse to affiliate with
abortion clinics, they should be recognized as unconstitutional delega-
tions of government licensing authority.
Because the licensing scheme spelled out in the Regulation threat-
ens to deprive abortion providers in South Carolina of a protected
property interest and to burden the liberty interest of women seeking
abortions, it must comport with due process. The Due Process Clause
requires licensing decisions to be based upon established standards,
rather than upon the whim or caprice of the licensor. Yick Wo v. Hop-
kins, 118 U.S. 356, 370 (1886); see also GE Co. v. N.Y. State Dep't
of Labor, 936 F.2d 1448, 1454-55 (2nd Cir. 1991); Hornsby v. Allen,
326 F.2d 605, 608 (5th Cir. 1964). And if a state decides to delegate
part of its licensing authority to a third party, that authority must be
exercised in a manner that is consistent with due process require-
ments. Hallmark Clinic v. N.C. Dep't of Human Res., 380 F. Supp.
1153, 1158-59 (E.D.N.C. 1974) (three-judge panel), aff'd in part on
other grounds, 519 F.2d 1315 (4th Cir. 1975).
The Plaintiffs maintain that several provisions of the Regulation
constitute an improper delegation, without sufficient standards, of the
State's licensing authority. Specifically, the Plaintiffs challenge the
mandate of the Hospital Privilege Provisions that physicians (and/or
others) possess admitting privileges at local hospitals, and they chal-
lenge the Consultation Provision's referral arrangement requirement.
The Plaintiffs maintain that these provisions grant hospitals and medi-
cal specialists, as well as members of the clergy, an effective "veto
power" over the licensing of abortion providers. The State, on the
other hand, does not contend that the Regulation provides any stan-
____________________________________________________________
21
I have previously designated § 305(A) of the Regulation as the
"And/Or Provision." See supra Part III. It is also one of the Hospital
Privilege Provisions implicated in the improper delegation challenge to
the Regulation's hospital admitting privilege requirements.
22
Section 309(B) of the Regulation provides: "Physicians shall have
admitting privileges at one or more local hospitals that have appropriate
obstetrical/gynecological services." 24 S.C. Code Ann. Regs. 61-12,
§ 309(B) (Cum. Supp. 2001).
43
dards or guidelines for when, or under what circumstances, third par-
ties may refuse to affiliate with abortion providers. It relies, instead,
on the irrelevant fact that such providers have not yet had difficulty
obtaining licenses.
In rejecting the Plaintiffs' delegation challenges, it is striking that
the majority fails to address two contrary decisions directly on point.
Indeed, a three-judge district court in this Circuit concluded that a
state may not constitutionally delegate to hospitals the unbridled con-
trol over abortion licensing by conditioning a license on hospital
admitting privileges. In Hallmark Clinic, Judge J. Braxton Craven,
Jr., then a distinguished member of this Court from North Carolina,
addressed the very question we face today, and the majority takes
issue with his reasoning without mentioning his considered opinion.23
In that case, Hallmark Clinic challenged a North Carolina licensing
scheme that required abortion providers to have transfer agreements
with local hospitals. 380 F. Supp. at 1156. Because the challenged
North Carolina regulation did not limit the discretion of hospitals to
decide whether to grant such privileges, the court held that the regula-
tion constituted an unconstitutional delegation. As Judge Craven con-
cluded, "the state cannot confer upon a private institution the exercise
of arbitrary and capricious power." Id. at 1159. If a state requires that
physicians have admitting privileges in hospitals in order to obtain
licenses to perform abortions, "it must establish and enforce standards
for admission to hospital staff privileges." Id. Here, South Carolina,
like North Carolina in the 1970s, has "given hospitals the arbitrary
power to veto the performance of abortions for any reason or no rea-
son at all. The state cannot grant hospitals power it does not have
itself." Id. at 1158-59.
In Birth Control Centers, Inc. v. Reizen, 508 F. Supp. 1366 (E.D.
____________________________________________________________
23
The Hallmark Clinic panel was convened pursuant to a statute, since
repealed, that required a special three-judge court to hear and decide
claims seeking to enjoin the enforcement of a state statute on constitu-
tional grounds. See 28 U.S.C. § 2281 (repealed 1976). While Hallmark
Clinic may not constitute binding authority in our Circuit, Judge Cra-
ven's well-reasoned opinion, in the absence of other controlling prece-
dent, should be considered persuasive authority and accorded great
weight.
44
Mich. 1981), aff'd in part and vacated in part on other grounds, 743
F.2d 352 (6th Cir. 1984), a district court in Michigan invalidated a
regulation similar to the North Carolina licensing scheme at issue in
Hallmark Clinic. There, Michigan had promulgated a regulation
requiring abortion providers to obtain transfer agreements with local
hospitals before they could obtain a license. Id. at 1369. Relying on
the Hallmark Clinic decision, the court struck down the Michigan
regulation as an impermissible delegation of state power. See id. at
1374 (holding that hospital privilege requirements "violate due pro-
cess concepts because they delegate a licensing function to private
entities without standards to guide their discretion"); see also GE Co.
v. N.Y. State Dep't of Labor, 936 F.2d at 1455 ("[A] legislative body
may not constitutionally delegate to private parties the power to deter-
mine the nature of rights to property in which other individuals have
a property interest, without supplying standards to guide the private
parties' discretion.").
Because the Hospital Privilege Provisions of the Regulation dele-
gate the unfettered power to control the licensing of abortion provid-
ers, they violate the Due Process Clause. See Danforth, 428 U.S. at
74 ("[T]he State does not have the constitutional 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,
regardless of the reason for withholding consent."). In addition to
other constitutional infirmities, the Hospital Privilege Provisions and
the Consultation Provision (for the same reasons that apply to the
Hospital Privilege Provisions) constitute standardless delegations of
state power. As such, they violate the Due Process Clause and should
be invalidated.
V.
In sum, the majority has misapprehended the underlying facts and
misapplied the applicable law in upholding the Regulation in its
entirety. Under an appropriate construction of the Regulation and an
application of controlling legal principles, several of its provisions are
unconstitutional. In particular, the Disclosure Provision violates the
right to informational privacy; the Consultation Provision contravenes
the Establishment Clause (as well as the Due Process Clause in
improperly delegating state licensing authority); the And/Or Provision
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and the Best Practices Provisions are unconstitutionally vague; and
the Hospital Privilege Provisions violate due process by unconstitu-
tionally delegating state licensing authority.
Because the majority refuses to recognize these constitutional infir-
mities, I respectfully dissent.
46