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Fourth Circuit Rules in Favor of Abortion Providers Suing South Carolina AG for "Fetal Heartbeat" Act—But State Asks for Rehearing En Banc

By Camila Laval, J.D. on April 02, 2022 4:01 AM

Over the past year, various Republican-led states have steadily curtailed abortion rights. Arkansas, Idaho, South Carolina, Texas, and Wyoming have all introduced new restrictions that would ban most abortions.

"Fetal Heartbeat" Act Gets Injunction for Being Unconstitutional

In the case of South Carolina, the Fetal Heartbeat and Protection from Abortion Act bans abortions after a fetal heartbeat is detected. This typically happens approximately six weeks after the mother's last menstrual period—which is before many would even realize that they are pregnant. The Act permits abortions after the six-week period only when the mother's life is severely endangered, in the case of certain "fatal fetal anomalies" (which are likely to lead to death of the fetus or newborn), or when the pregnancy is the result of rape or incest.

Abortion providers in South Carolina quickly filed a § 1983 action against the Attorney General and other state officials, challenging the constitutionality of the abortion restrictions, in Planned Parenthood South Atlantic v. Wilson. The providers then moved for a preliminary injunction to prevent enforcement of the Act. The Federal District Court for South Carolina granted the injunction, and the Fourth Circuit Court of Appeals affirmed the decision

Read the full Wilson ​opinion and thousands of other cases with a free trial of WestLaw Edge.

Both courts agreed that the Act was likely unconstitutional because it bans abortion months before any fetus could be viable, and courts have universally struck down bans on abortion that start at a "gestational age" prior to viability. The Fourth Circuit noted that the state defendants didn't contest the constitutionality of the Act. On the contrary, the court noted, "the text of the Act itself recognizes that it is unconstitutional" because the statute itself provides that if Roe v. Wade is overturned, the Attorney General may seek declaration that Act is constitutional. 

Instead, the state officials' theory of defense centered around issues of standing and severability. They argued firstly that even if the Act was unconstitutional, abortion providers do not have standing to sue. Secondly, defendants argue that the Act's severability clause saves constitutional portions of the statute, which must be enforced once portions deemed unconstitutional are removed. The courts did not buy these arguments, granting and affirming the injunction in favor of the abortion providers. 

Not satisfied with the appellate court's decision, Governor Henry McMaster has now petitioned for a rehearing of the case en banc (meaning that he is requesting that all 15 judges of  Fourth Circuit hear the case anew, instead of the three-judge panel that heard the case in the first instance). Governor McMaster has even pledged to take the case to the Supreme Court if necessary.

Do Abortion Providers Have Standing to Bring Suit?

The original Fourth Circuit panel held that abortion providers had third-party standing to challenge the constitutionality Act. The judges reasoned that longstanding precedent allowed abortion providers to invoke the rights of their patients in challenges to abortion-related regulations. Additionally, a person seeking abortion would face several obstacles to filing suit on their own behalf, especially since the Act prohibits abortions at a point when many mothers do not yet know that they are pregnant.

The state defendants disagree. They argue that abortion providers have an inherent conflict of interest that prevents them from having third-party standing, given that the Act gives patients the right to sue the provider for at least $10,000 if it does not perform and ultrasound or if it does not give the patient the opportunity to view the ultrasound or to hear the heartbeat. Defendants further point out that standing to bring a cause of action under § 1983 is limited to "the party injured" by a deprivation of its own rights. Thus, they argue, third-party standing would not exist for these types of cases.

Is the Act Severable?

The text of the Act did contain a severability clause that stated that if any portion of the Act "is for any reason held to be unconstitutional or invalid, then such holding shall not affect the constitutionality or validity of the remaining portions" of the Act. But despite this language, the courts found that the Act's provisions were not severable:

"A straightforward review of the function of each of the provisions remaining in the Act after the removal of the six-week abortion ban reveals that the entirety of the statute was designed to carry out the ban," the District Court noted.

The state defendants now take issue both with the standard of review used by the Court of Appeals and the analysis employed. The Fourth Circuit used an "abuse of discretion" standard of review, which the defendants contest, though they do not give a clear reason why. 

Regarding the analysis, the state officials disagree with the conclusion that the other parts of the Act are not severable from the six-week abortion ban, given that they are intended to facilitate such ban and make little sense without it. These parts require abortion providers to perform an ultrasound, document the results, display the ultrasound images to the patient, and offer the patient the opportunity to listen to any detected fetal heartbeat.

The view of the state officials is that the requirements imposed on abortion providers can operate independently of the abortion ban and would have survived if passed in a standalone bill. They note that many states have similar requirements not tied to an abortion ban. They add that the cause of action allowing pregnant persons to sue the provider for at least $10,000 if it does not comply with those requirements can stand on its own.

Abortion Rights On the Fall

The landmark 1973 case ofRoe v. Wade protects the right to an abortion prior to the viability of the fetus, which is typically around 24 weeks into pregnancy. In the decades that followed this decision, some states have imposed limitations on those rights—imposing a number of requirements ranging from waiting times, counseling, parental notice or consent for minors, and ultrasounds. 

Now more than ever, we are seeing restrictions at an unprecedented pace. Last year, states passed more than 100 laws restricting abortion, the most of any year since Roe. And with the Supreme Court now composed of a majority of conservative justices, many states are testing just how far they can push the limits.

Last September, SCOTUS decided in Whole Woman's Health v. Jackson not to grant injunctive relief against Texas' Senate Bill 8, which similarly bans abortions after a fetal heartbeat can be detected. What was novel about S.B. 8 was that it allowed private citizens to enforce the law by bringing their own suit against abortion providers. This provision was ultimately what helped S.B. 8 doge the injunction. Since then, several states—including South Carolina—have passed legislations banning abortions post-fetal heartbeat.

Today, all eyes are on Dobbs v. Jackson Women's Health Organization, a case currently pending before the Supreme Court and for which oral arguments were made in December. Dobbs deals with the constitutionality of a Mississippi law that bans abortions after 15 weeks of pregnancy. If the Court finds the law to be constitutional, it would essentially mean overruling—or at least seriously crippling—Roe. This would also make it easier for other abortion restrictions, such as South Carolina's, to survive judicial scrutiny.

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