Professional Documents
Culture Documents
2021-07-07 32 Brief of Appellants (Updated)
2021-07-07 32 Brief of Appellants (Updated)
No. 21-1369
__________
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA,
NO. 21-CV-00508, HON. MARY GEIGER LEWIS, PRESIDING
__________
TABLE OF CONTENTS
Page
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TABLE OF AUTHORITIES
Page(s)
CASES
Advantage Media, LLC v. City of Eden Prairie, 456 F.3d 793 (8th Cir. 2006) ......34
Am. Libr. Ass’n v. Odom, 818 F.2d 81 (D.C. Cir. 1987) .........................................23
Ameur v. Gates, 759 F.3d 317 (4th Cir. 2014).................................................. 40, 50
Andrews v. Neer, 253 F.3d 1052 (8th Cir. 2001) .....................................................31
Archuleta v. McShan, 897 F.2d 495 (10th Cir. 1990)....................................... 30, 34
Assa’d-Faltas v. Weiss, 2015 WL 4487759 (D.S.C. July 23, 2015), aff’d, 639 F.
App’x 181 (4th Cir. 2016) ....................................................................................33
Austin v. Paramount Parks, Inc., 195 F.3d 715 (4th Cir. 1999) ..............................37
Barber v. Overton, 496 F.3d 449 (6th Cir. 2007) ....................................................33
Barker v. Halliburton Co., 645 F.3d 297 (5th Cir. 2011) ........................................34
Bishop v. Bartlett, 575 F.3d 419 (4th Cir. 2009) .....................................................16
Brossart v. Janke, 859 F.3d 616 (8th Cir. 2017) .....................................................34
Cap. Cities Cable, Inc. v. Crisp, 467 U.S. 691 (1984) ............................................23
CGM, LLC v. BellSouth Telecomms., Inc., 664 F.3d 46 (4th Cir. 2011).................30
Claybrook v. Birchwell, 199 F.3d 350 (6th Cir. 2000) ..................................... 33, 35
Cochise Consultancy, Inc. v. United States ex rel. Hunt, 139 S. Ct. 1507
(2019)....................................................................................................................31
Coon v. Ledbetter, 780 F.2d 1158 (5th Cir. 1986) ..................................................34
Covenant Media of S.C., LLC v. City of N. Charleston, 493 F.3d 421 (4th Cir.
2007). ............................................................................................................. 42, 51
CPC Int’l, Inc. v. Skippy Inc., 214 F.3d 456 (4th Cir. 2000) ............................ 41, 52
Di Biase v. SPX Corp., 872 F.3d 224 (4th Cir. 2017) ...................................... 13, 51
Dohaish v. Tooley, 670 F.2d 934 (10th Cir. 1982) ..................................................34
Edwards v. Beck, 8 F. Supp. 3d 1091 (E.D. Ark. 2014), aff’d, 786 F.3d 1113 (8th
Cir. 2015) ..............................................................................................................46
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Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004) ..................... 16–17, 20
EMW Women’s Surgical Ctr., P.S.C. v. Beshear, 920 F.3d 421 (6th Cir.
2019) .............................................................................................................. 47, 52
English v. Powell, 592 F.2d 727 (4th Cir. 1979) .....................................................33
Estate of Gilliam ex rel. Waldroup v. City of Prattville, 639 F.3d 1041 (11th Cir.
2011) .....................................................................................................................34
Felder v. Casey, 487 U.S. 131 (1988)......................................................................37
Freilich v. Upper Chesapeake Health, Inc., 313 F.3d 205 (4th Cir.
2002) ............................................................................................ 17, 20, 22, 26–27
Friedman v. Harold, 638 F.2d 262 (1st Cir. 1981)..................................................23
Garrett v. Clarke, 147 F.3d 745 (8th Cir. 1998)......................................................33
Gonzales v. Carhart, 550 U.S. 124 (2007) ................................................... 7, 21, 48
Greenville Women’s Clinic v. Bryant, 222 F.3d 157 (4th Cir.
2000) .............................................................................................. 6, 22, 25, 44, 50
Greenville Women’s Clinic v. S.C. DHEC, 317 F.3d 357 (4th Cir. 2002) ................6
H.L. v. Matheson, 450 U.S. 398 (1981) ...................................................................20
Harris v. McRae, 448 U.S. 297 (1980) ....................................................................20
Hodak v. City of St. Peters, 535 F.3d 899 (8th Cir. 2008) .......................................20
Hodges v. Rainey, 533 S.E.2d 578 (S.C. 2000) ................................................ 38, 43
Hodgson v. Minnesota, 497 U.S. 417 (1990)...........................................................20
Howerton v. Fletcher, 213 F.3d 171 (4th Cir. 2000) .................................. 30, 32, 39
In re DNA Ex Post Facto Issues, 561 F.3d 294 (4th Cir. 2009) ................. 41–42, 47
Inmates v. Owens, 561 F.2d 560 (4th Cir. 1977) .....................................................33
Inyo County v. Paiute-Shoshone Indians, 538 U.S. 701 (2003) ..............................37
Jackson Women’s Health Org. v. Dobbs, 945 F.3d 265 (5th Cir. 2019) .................12
Jaco v. Bloechle, 739 F.2d 239 (6th Cir. 1984) .......................................................33
Joytime Distribs. & Amusement Co. v. South Carolina, 528 S.E.2d 647
(S.C. 1999)............................................................................................... 41–43, 48
June Med. Servs. LLC v. Russo, 140 S. Ct. 2103 (2020) ............................ 24, 26–27
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CONSTITUTIONAL PROVISIONS
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STATUTES
RULES
REGULATIONS
OTHER AUTHORITIES
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Hearings on S. 1 Before the S.C. Senate Medical Affairs Subcomm., 124th Sess.
(Jan. 14, 2021) ......................................................................................................21
1 Sheldon H. Nahmod, Civil Rights & Civil Liberties Litigation: The Law of
Section 1983 (4th ed. 2020) ..................................................................................36
William Theis, Shaw v. Garrison: Some Observations on 42 U.S.C. § 1988 and
Federal Common Law, 36 La. L. Rev. 681 (1976) ..............................................36
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INTRODUCTION
This appeal involves the limited power of federal courts to enjoin enforcement
of state law. This power is narrowly circumscribed by both the Constitution and
statute, and it may not be exercised to a greater extent than strictly necessary to re-
solve a particular case. These strictures are especially important in the context of a
preliminary injunction, when a federal court acts on limited information without the
The district court here, however, preliminarily enjoined the entirety of a state
law that is largely unchallenged and that requires any invalidated portion—even as
little as a “word”—to be severed. And the court did so on behalf of plaintiffs who
do not even allege that the single challenged provision violates their own constitu-
tional rights. Even worse, the injunction and plaintiffs’ requested relief deprive the
women whose rights they purport to assert of relevant information, choices, and the
ability to vindicate rights in court against the plaintiffs themselves. Because no prec-
edent sanctions such overreaching federal power to interfere with state law, espe-
cially in a case where the plaintiffs have neither constitutional nor statutory standing,
Through several means, the South Carolina Fetal Heartbeat and Protection
from Abortion Act advances South Carolina’s “legitimate interests from the outset
of the pregnancy in protecting the health of the woman and the life of the” unborn
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child. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 846 (1992). The Act
requires the abortionist to give the mother the opportunity to view an ultrasound,
hear the child’s heartbeat, and receive information about her child. If the abortionist
fails to do any of these, the Act gives the mother a cause of action against him. The
Act therefore reflects the reality “that most women considering an abortion would
deem the impact on the fetus relevant, if not dispositive, to the decision.” Id. at 882.
“In attempting to ensure that a woman apprehend the full consequences of her deci-
sion, the State furthers the legitimate purpose of reducing the risk that a woman may
the “Abortion Centers”)—filed this lawsuit before Governor McMaster even signed
the Act into law. They directly challenge only the provision of the Act that makes
with a beating heart, yet they nevertheless demand that the entire Act be enjoined.
The district court obliged, imposing a temporary restraining order against the entire
Act for nearly a month during which it lacked Article III jurisdiction over the chal-
lenge to proposed legislation. After the Abortion Centers finally amended their com-
plaint, the court quickly issued a preliminary injunction against the whole Act.
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Yet the Act contains a robust severability clause requiring that as little as a
“word” that is invalidated be severed from the remaining provisions. And South
Carolina law requires that courts follow the legislative intent as expressed by the text
of the law. The district court, however, substituted its own assessment for the Gen-
eral Assembly’s judgment and the Act’s plain text, asserting that the Act’s other
ments—have no purpose independent from the challenged provision. Not only does
the Act itself repudiate that assertion, but many States have passed—and courts have
not give the Abortion Centers third-party standing to represent the very women who
would be harmed if the suit were to succeed—and who are even now being harmed
due to the injunction. The Abortion Centers have no right to perform abortions, and
they have not alleged the factual predicates for third-party standing: a close relation-
ship, a hindrance to the first party in bringing suit, and a unity of interests. The
district court did not disagree, instead holding that abortionists—alone among fed-
eral litigants—are exempt from the normal standing tests and therefore have auto-
matic standing to challenge any abortion regulation, no matter the obvious (and
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unique) conflicts of interests here and the absence of any close relationship or hin-
of federal litigation.
not have statutory standing to assert their sole claim under 42 U.S.C. § 1983. Claims
under that provision can be brought only by “the party” who herself suffers an al-
tion and laws.” Interpreting the plain text of § 1983, this Court and essentially all
others have held that the statute imposes liability only for violations of a party’s own
constitutional rights—not another party’s. Because the Abortion Centers do not and
cannot allege a violation of their own rights, they have no cause of action.
federal judicial power. This Court should reverse and remand for dismissal or, at a
JURISDICTIONAL STATEMENT
U.S.C. §§ 1331 and 1343. Because the court entered a preliminary injunction, this
Court has jurisdiction under 28 U.S.C. § 1292(a)(1). The preliminary injunction was
entered on March 19, 2021. Joint Appendix (App.) 282. Appellants filed a notice
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STATEMENT OF ISSUES
II. Whether § 1983 provides a derivative cause of action to parties that do not
III. Whether the district court erred or otherwise abused its discretion in enjoining
provisions of the Act that, by legislative command, must be severed from the
challenged provision.
Like other states, South Carolina has long regulated abortions. Chapter 41 of
the South Carolina Code of Laws licenses and regulates abortion providers to ensure
that they meet medical standards of care for their patients and provide vital health
(“DHEC”). S.C. Code Ann. §§ 44-41-70, -75, -460. The chapter provides rights to
data, and access to information about their unborn child. Id. §§ 44-41-37, -330, -360.
It also regulates how minors may obtain abortions, to protect them from abuse and
judge. Id. §§ 44-41-31, -32, -33, -36, -37. The chapter protects the rights of medical
unborn children from certain forms of abortion, including partial-birth abortion and
must report each abortion (though not the woman’s name) to DHEC. Id. §§ 44-41-
60, -460.
DHEC, 317 F.3d 357, 359 (4th Cir. 2002); see also Greenville Women’s Clinic v.
Bryant, 222 F.3d 157, 160 (4th Cir. 2000) (noting that these regulations were devel-
oped in consultation with “medical standards and guidelines issued by medical care
organizations” and were intended “to promote high quality care for all women seek-
ing abortions”). These regulations have been upheld repeatedly by this Court, which
ultrasound if the woman is at least 12 weeks pregnant. S.C. Code Ann. Regs. 61-
12.301 (2021).
B. The Act
The South Carolina General Assembly overwhelmingly passed the South Car-
olina Fetal Heartbeat and Protection from Abortion Act on a bipartisan basis, 30-13
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in the Senate and 74-39 in the House of Representatives. See Addendum (2021 S.C.
Acts No. 1). The Act promotes South Carolina’s “legitimate interests from the outset
of a pregnancy in protecting the health of the pregnant woman and the life of the
unborn child who may be born.” Act § 2. In the Act, the General Assembly made
fetal heartbeat is a key medical predictor that an unborn human individual will reach
live birth.” Id. The General Assembly found that “in order to make an informed
interest in knowing the likelihood of the human fetus surviving to full-term birth
based upon the presence of a fetal heartbeat.” Id. In this respect, the Act is consistent
with existing state law recognizing the heartbeat as a primary marker of the presence
of human life. See, e.g., S.C. Code Ann. § 44-43-460 (“An individual who has sus-
In accord with science and precedent, the Act defines an “unborn child” as
“an individual organism of the species homo sapiens from fertilization until live
birth.” Act § 3; see, e.g., Gonzales v. Carhart, 550 U.S. 124, 160 (2007) (describing
partial-birth abortion as a procedure in which the abortionist “pierce[s] the skull and
vacuum[s] the fast-developing brain of [the] unborn child” (emphasis added)). The
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something other than an embryo,” App. 227, but was conspicuously silent regarding
the Abortion Centers’ attempt to redefine unborn life as “the contents of a patient’s
uterus,” App. 53. The district court also inexplicably complained that the “fetal
rhythmic contraction of the fetal heart,” Act § 3—is “not actually a heartbeat.” App.
235.
The Act seeks to promote the interests of “the health of the pregnant woman
and the life of the unborn child who may be born” in several ways. Act § 2. It
requires that before an abortion, the provider must perform an ultrasound “using
whichever method the physician and pregnant woman agree is best under the cir-
cumstances,” “display the ultrasound images so that the pregnant woman may view
the images,” and “record a written medical description of the ultrasound images of
the unborn child’s fetal heartbeat.” Id. § 3 (S.C. Code Ann. § 44-41-630). If the
women has been pregnant for at least ten weeks (eight weeks post-fertilization), then
the abortionist must tell her that a heartbeat may be audible and use an ultrasound to
allow her to hear the heartbeat, if she wishes. Id. (S.C. Code Ann. § 44-41-640).
Before performing an abortion and absent a medical emergency, the provider must
determine “whether the human fetus the pregnant woman is carrying has a detectable
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The Act provides a cause of action for a woman “on whom an abortion was
performed or induced in violation of this article” and for a woman “on whom an
abortion was performed or induced who was not given the information provided in
Section 44-41-330,” the preexisting statute requiring the provision of certain infor-
mation. Id. (S.C. Code Ann. § 44-41-740). The Act provides for damages against
the offending abortionist, as well as court costs and attorney’s fees. Id. The Act
makes clear that a pregnant woman cannot be prosecuted for violations of the Act.
requirements, which supplement the State’s existing (and judicially upheld) abortion
regulations. For instance, the required reports regarding abortions must contain in-
formation related to fetal heartbeat testing. Id. § 4 (S.C. Code Ann. § 44-41-460(A)).
The abortionist must convey certain information to the mother “based on available
medical evidence.” Id. § 5 (S.C. Code Ann. § 44-41-330(A)(1)). And the Act up-
The Act also contains a severability clause providing that if any part of the
portions are unaffected, “the General Assembly hereby declaring that it would have
passed this act and each and every section, subsection, paragraph, subparagraph,
sentence, clause, phrase, and word thereof, irrespective of the fact that” other
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portions might be invalidated. Id. § 7. Finally, the Act took “effect upon approval
The Abortion Centers directly challenge only one provision of the Act. Under
that provision, if a heartbeat is detected, the abortionist may only perform an abor-
tion in cases involving rape, incest, fetal anomalies, or where the abortion is “in-
tended to prevent the death of the pregnant woman or to prevent the serious risk of
App. 53. “Medication abortion involves the use of” “two medications taken to . . .
tion of instruments through the vagina to empty the contents of a patient’s uterus.”
Id. What they call “the contents of the uterus” was, of course, an unborn child. The
Abortion Centers perform this “service” until the mother is 14 weeks pregnant. App.
42, 54.
On February 18, 2021, the Abortion Centers filed this action before the Act
was signed into law by Governor McMaster, nonetheless seeking to have the Act
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at the time they filed their complaint—the district court issued a temporary restrain-
ing order against the operation of the entire Act. App. 79. Even after the obvious
jurisdictional deficiency was pointed out, the district court extended the TRO. App.
98. Nearly a month later, the Abortion Centers finally amended their complaint to
challenge the law rather than proposed legislation. App. 18. The only cause of
Nine days later, without any motion being filed as to the new operative com-
plaint, the district court issued a preliminary injunction restraining the defendants
from enforcing the entire Act statewide. App. 303. In the court’s view, abortionists
may “assert the constitutional rights of their patients.” App. 289. The court did not
address the third-party standing factors, instead noting that the Act subjects the
Abortion Centers to “‘felony criminal and other penalties’” for violating it. Id. The
court did not note or analyze that the Abortion Centers’ lawsuit seeks to deprive
mothers of rights, or that one of the penalties under the Act is a civil remedy against
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According to the district court, its holding also encompassed any statutory
§ 1983 claim. See App. 197 (“[T]he Court previously concluded, in its [Preliminary
Injunction] Order that Plaintiffs are able, under Section 1983, to assert a claim on
behalf of their patients.”). The court did not analyze § 1983’s text or the Abortion
Centers’ failure to allege that they were deprived of any constitutional right and
As to the single challenged provision, the court rejected the argument that
289–90. Relying in part on a case in which the Supreme Court recently granted
certiorari, the district court instead adopted the view “‘that any previability limitation
Women’s Health Org. v. Dobbs, 945 F.3d 265 (5th Cir. 2019)).1
Finally, the court found that all the Act’s other provisions should also be en-
joined. Without citation or explanation—much less any discussion of the Act’s ro-
bust severability clause—the court said that the “only purpose” of the Act’s “man-
1
Particularly given the Supreme Court’s recent grant of certiorari in Dobbs v. Jack-
son Women’s Health Organization, No. 19-1392 (U.S.), Appellants reserve the right
to challenge this aspect of the district court’s reasoning in the ongoing proceedings
below and on any subsequent appeal.
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App. 298–99. The court then asserted that “a review of the remaining provisions of
Section 3 of the Act lead[s] to the inescapable conclusion they are also so intertwined
with [the ultrasound disclosure provision and the challenged provision] so as to pre-
clude severability.” App. 299. And because other sections of the Act “reference[]
the words ‘fetal heartbeat,’” the court concluded that they “must be enjoined as
well.” Id. The court found it “nothing short of baffling when Defendants here make
the fanciful, misbegotten, and misguided argument that the Act is constitutional.”
App. 302. It was “unable to fathom how another court could decide this issue dif-
ferently.” Id.
STANDARD OF REVIEW
only if the moving party clearly establishes entitlement to the relief sought.” Di
Biase v. SPX Corp., 872 F.3d 224, 230 (4th Cir. 2017). “A plaintiff seeking a pre-
liminary injunction must demonstrate ‘that he is likely to succeed on the merits, that
he is likely to suffer irreparable harm in the absence of preliminary relief, that the
balance of equities tips in his favor, and that an injunction is in the public interest.’”
Id. (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). To satisfy
the first preliminary injunction factor, the Abortion Centers “must make a clear
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N.C. State Conf. of the NAACP v. Raymond, 981 F.3d 295, 302 (4th Cir. 2020). Oth-
erwise, the Court generally “evaluate[s] a district court’s decision to grant prelimi-
nary injunctions under an abuse of discretion standard.” Pashby v. Delia, 709 F.3d
307, 319 (4th Cir. 2013). But “[b]ecause preliminary injunctions are extraordinary
remedies involving the exercise of very far-reaching power,” the Court is “particu-
larly exacting in its use of the abuse of discretion standard.” Id. (cleaned up). “A
SUMMARY OF ARGUMENT
By enjoining the entirety of the Act, the district court exceeded its Article III
I. The district court erred in holding that abortionists, unlike all other lit-
igants, need not satisfy the third-party constitutional standing requirements. Neither
the Abortion Centers nor the district court even attempted to suggest that the Abor-
tion Centers could meet those requirements. For good reason: They could not. The
history of women vindicating their own rights disproves any paternalistic suggestion
that women need abortionists to speak for them. And the Abortion Centers’ abstract
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and amorphous relationship with those they seek to represent is rife with conflicts.
A ruling for the Abortion Centers would benefit abortionists at the expense of moth-
ers, who could make a more informed decision with the information the Centers
court has approved third-party standing in such a case. And neither the Supreme
Court nor this Court has held that abortionists alone are exempt from the third-party
ble conflicts of interest are obvious within the four corners of the complaint.
II. The Abortion Centers also lack statutory standing. As virtually all cir-
cuits have held, the only party to whom § 1983 gives a cause of action is the person
Constitution and laws.” The Abortion Centers are not such parties, because they
have no constitutional right to abort unborn children. Settled § 1983 precedents for-
bid even immediate family members from asserting claims on behalf of relatives. If
a wife cannot vindicate her dead husband’s rights, the Abortion Centers certainly
III. Finally, the district court’s injunction is overbroad. The vast majority
ments that are not directly challenged by the Abortion Centers and are no different
from provisions routinely upheld by courts. And the Act contains an express
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severability clause declaring the General Assembly’s intent to pass every “word” of
the Act, notwithstanding portions that might be invalidated. The district court sub-
stituted its own views of the Act’s purposes for the General Assembly’s intent as
evidenced by the Act’s plain text, and it compounded this error by failing to address
any of the other preliminary injunction factors as to the remainder of the Act. At a
minimum, the Court should vacate the district court’s overbroad injunction.
ARGUMENT
burden of proving standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561
(1992). Generally, a plaintiff “must assert his own legal rights and interests, and
cannot rest his claim to relief on the legal rights or interests of third parties.” Bishop
v. Bartlett, 575 F.3d 419, 423 (4th Cir. 2009) (quoting Warth v. Seldin, 422 U.S.
grant a third party standing” can a litigant “assert the rights of another.” Kowalski
v. Tesmer, 543 U.S. 125, 129–30 (2004) (emphasis added). For instance, in certain
contexts, a parent can assert a child’s rights—though not always, even in that inti-
mate relationship where the parent is often required to act on the child’s behalf.
Compare Prince v. Massachusetts, 321 U.S. 158 (1944), with Elk Grove Unified Sch.
Dist. v. Newdow, 542 U.S. 1, 15 (2004) (no standing where “the interests of this
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parent and this child are not parallel and, indeed, are potentially in conflict”), abro-
gated on other grounds by Lexmark Int’l, Inc. v. Static Control Components, Inc.,
standing [must] make two additional showings”: (1) that it “has a ‘close’ relationship
with the person who possesses the right,” and (2) that “there is a ‘hindrance’ to the
possessor’s ability to protect h[er] own interests.” Kowalski, 543 U.S. at 129–30
(quoting Powell v. Ohio, 499 U.S. 400, 411 (1991)). And if the plaintiff’s and the
Newdow, 542 U.S. at 15. This Court has recognized that a “fail[ure] to allege” and
provide “evidence” of even one of these factors dooms any third-party standing ef-
fort. Freilich v. Upper Chesapeake Health, Inc., 313 F.3d 205, 214–15 (4th Cir.
2002) (holding that a doctor who failed to “allege a hindrance to her patients’ ability
to protect their own interests” “lacks standing”). Like all standing questions, these
are assessed on a case-by-case basis, “on the asserted claim.” Warth, 422 U.S. at
2
Though the Supreme Court has not resolved third-party standing’s “proper place
in the standing firmament,” it has emphasized that “third-party standing is closely
related to the question whether a person in the litigant’s position will have a right of
action on the claim”—suggesting it has a jurisdictional dimension. Lexmark, 572
U.S. at 127 n.3 (cleaned up); see United States v. Under Seal, 853 F.3d 706, 722 n.5
(4th Cir. 2017). Whatever the test’s label, the Abortion Centers cannot succeed.
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Here, the Abortion Centers lack standing to assert their conflicted, derivative
claim because it is based entirely on “the substantive due process rights of [their]
ture patients—are plaintiffs, and the Abortion Centers do not claim (and do not have)
any constitutional right to abort unborn children. Yet the Abortion Centers have not
attempted to carry their burden of showing third-party standing: They have sug-
gested no close relationship with women they might sell their services to, much less
a hindrance to such women asserting their own rights. And any suggestion of a unity
of interests would be fatally undercut by the fact that the Abortion Centers seek relief
that will harm the women they purport to stand in for, depriving mothers of vital
information and the ability to vindicate statutory rights against them. No court has
sanctioned third-party standing in a case like this. Yet in the Abortion Centers’ and
the district court’s view, abortionists have automatic third-party standing to chal-
lenge any regulation pertaining to their businesses, regardless of whether they satisfy
(or even allege) the third-party standing requirements or whether the regulation pro-
tects mothers from them or gives mothers a cause of action against them. That is not
A. The Abortion Centers did not demonstrate or even allege the fac-
tual predicates for third-party standing.
Again, a third-party plaintiff must show a close relationship with the first
party, a hindrance to that party’s ability to protect its interests, and a unity of
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interests. Kowalski, 543 U.S. at 130. Here, the Abortion Centers refused to discuss
these elements whatsoever, much less allege relevant facts or show that they are
First, the Abortion Centers did not plead facts or offer any evidence regarding
any degree of closeness between them and women who might use their services. The
428 U.S. 106, 117 (1976) (plurality opinion), but they have not pleaded or shown
any evidence of a close relationship, much less one that is free from obvious con-
such a relationship. They say that women who use their services “obtain an abortion
as soon as they are able,” App. 29, 57, ruling out any suggestion of long-term treat-
pills without even seeing the mother in person. App. 31, 43, 62. They emphasize
that one center had “abortions scheduled for 56 patients” on a Saturday in February.
close relationship. See McCorvey v. Hill, 385 F.3d 846, 851 (5th Cir. 2004) (Jones,
J., concurring) (“[W]omen are often herded through their procedures with little or
Second, the Centers have not suggested any hindrance whatsoever to women
asserting their own rights. As this Court has held, a party’s “fail[ure] to allege” and
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Freilich, 313 F.3d at 215. Moreover, it is beyond dispute that South Carolina women
other abortion cases across the country.3 This history “disprove[s]” any hindrance
as a matter of law. Kowalski, 543 U.S. at 132; see also Hodak v. City of St. Peters,
535 F.3d 899, 904–05 (8th Cir. 2008) (collecting cases). Contrary to the Abortion
Centers’ patronizing suggestion, women do not need abortionists to speak for them.
Third, the relationship between the Abortion Centers and the women they pur-
port to speak for is not only attenuated, but also riven with conflicts. The Supreme
Court has held that when a plaintiff’s interests are even “potentially in conflict” with
the first party’s interests, third-party standing does not exist. Newdow, 542 U.S. at
One conflict involves the Act’s requirements that the abortionist give the
mother certain information before any abortion is performed. For instance, the abor-
tionist must give the mother the choice to see the ultrasound, tell the mother (if she
3
See, e.g., Leavitt v. Jane L., 518 U.S. 137, 139 (1996) (per curiam); Hodgson v.
Minnesota, 497 U.S. 417, 429 (1990); H.L. v. Matheson, 450 U.S. 398, 400 (1981);
Williams v. Zbaraz, 448 U.S. 358, 361 (1980); Harris v. McRae, 448 U.S. 297, 303
(1980); Poelker v. Doe, 432 U.S. 519, 519 (1977) (per curiam); Maher v. Roe, 432
U.S. 464, 467 (1977) (all involving women seeking abortions and asserting their
own rights as plaintiffs).
20
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is at least ten weeks pregnant) that a heartbeat may be audible, and give her the
option to hear it. See Act § 3. The Abortion Centers—who charge women for ul-
important for at least two reasons. First, as the Supreme Court has said, “[e]ven in
the earliest stages of pregnancy, the State may enact rules and regulations designed
to encourage [the mother] to know that there are philosophic and social arguments
of great weight that can be brought to bear in favor of continuing the pregnancy to
Second, during consideration of this Act, women who have had abortions tes-
tified that because they were deprived of such information, they were set on paths of
suicide, depression, shame, and regret. See, e.g., Hearings on S. 1 Before the S.C.
Senate Medical Affairs Subcomm., 124th Sess. (Jan. 14, 2021, at 2:15.00),
choice to abort must struggle with grief more anguished and sorrow more profound
when she learns, only after the event, what she once did not know.” Gonzales, 550
U.S. at 159–60.
By the Abortion Centers’ own telling, they want to deprive mothers of much
besides the choices to see an ultrasound and hear the heartbeat. They complain at
length about their legal requirements to provide women information about abortion
and other health regulations, notwithstanding that this Court has squarely rejected
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the argument that these regulations are “unnecessary.” See App. 31, 43, 61; Bryant,
222 F.3d at 175 (explaining that South Carolina’s regulations result in “increased
medical safety” and assurance “of a dignified and safe procedure,” which “serves
the complex public interests on the subject”). They complain about the difficulties
women have in paying their fees and that some “take longer to make a decision” and
cannot always purchase their services immediately. App. 30, 43–44, 60, 66. And
they complain that the State gives women information that might lead them to not
pay for the Abortion Centers’ “services.” App. 25, 31, 66.
Because the Abortion Centers do not want to give mothers sufficient infor-
pected properly to frame the issues” in this case. Sec’y of State of Md. v. Joseph H.
Munson Co., 467 U.S. 947, 956 (1984). There is no reason to think that a mother
ultrasound of her child. This conflict of interest confirms the “longstanding principle
that [first] parties themselves usually will be the best proponents of their own rights.”
Another particularly telling conflict is that the Act grants a woman who is not
given the required information a private cause of action against the abortionist. See
Act § 3 (S.C. Code Ann. § 44-41-740). For example, if the abortionist fails to give
22
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listen to her child’s heartbeat or view the ultrasound, she would have a cause of
action against him. And if the abortionist unlawfully terminates a child with a heart-
beat, the mother could sue him. But not if the Abortion Centers get their way. Not
only do they seek to deny mothers the option to listen to the heartbeat and see the
ultrasound and receive adequate information and know that the child aborted did not
have a heartbeat, they also seek to deny mothers the ability to vindicate their statu-
tory rights in court against the Abortion Centers themselves. A starker conflict of
Friedman v. Harold, 638 F.2d 262, 266 & n.8 (1st Cir. 1981) (denying standing
where “the third party’s ‘rights’ are being used as a means of helping the litigant to
the detriment of the person or persons whose rights are being asserted”); Am. Libr.
Ass’n v. Odom, 818 F.2d 81, 87 (D.C. Cir. 1987) (similar); cf. Cap. Cities Cable,
Inc. v. Crisp, 467 U.S. 691, 700 n.6 (1984) (“[R]espondent plainly lacks standing to
raise a claim concerning his adversaries’ constitutional rights in a case in which those
Indeed, no case analyzing such a conflict has held that a third party has stand-
ing to attack legal rights of the first party against the third party itself. Undoubtedly,
the Abortion Centers will recycle a laundry list of other abortion cases that did not
23
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discuss such a conflict and found either that the third-party standing requirements
were satisfied in the particular case or that the argument had been waived.
These cases are irrelevant, and the Abortion Centers’ anticipated reliance on
their inapposite (or absent) analysis is unavailing. Here, a uniquely severe and ob-
vious conflict exists on the face of the law. The Abortion Centers have made no
effort to even allege the third-party standing requirements. And the argument has
By contrast, for example, the June Medical plurality’s discussion of the merits
of third-party standing was dicta (as the argument had been waived), was not binding
(as not joined by a majority), never suggested any conflict of interests, and was nec-
essarily confined to the facts of the case and the challenged law. See June Med.
Servs. LLC v. Russo, 140 S. Ct. 2103, 2118 (2020) (plurality opinion) (“The State’s
Abortion Centers will cite June Medical and other irrelevant cases instead of any
case that actually analyzes a conflict like the one here—because no such case exists
Finally, the Abortion Centers’ desire to operate their businesses free from
government oversight poses an actual or potential conflict with the paramount health
and safety interests of women using their services. Abortion “involve[es] the most
intimate and personal choices a person may make in a lifetime.” Casey, 505 U.S. at
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851. As this Court has recognized, women making these decisions have an interest
in ensuring their own health and safety, and states can promote and protect that in-
terest. See Bryant, 222 F.3d at 173, 175. South Carolina has done so in passing the
Act. But the Abortion Centers’ interest is to reduce compliance costs and oversight
procedures and avoid both reasonable oversight and legal accountability. No busi-
ness likes to be regulated or sued. But it would be unprecedented to hold that the
Abortion Centers may stand in for the very women who they seek to deprive of in-
In the district court’s and the Abortion Centers’ views, the third-party standing
requirements are simply inapplicable in a single category of federal cases: those in-
volving abortion. Thus, the district court did not question any of the points above or
account for these longstanding legal principles. Instead, it believed that the Abortion
Centers were likely to succeed on third-party standing for two reasons: (1) because
the Abortion Centers allege an injury-in-fact, and (2) because abortionists always
are error. See Raymond, 981 F.3d at 302 (“A district court abuses its
25
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First, according to the district court, “abortion providers [can] sue on their
them.” App. 288. But that means nothing more than that the abortionists alleged an
injury-in-fact and might have first-party standing if they were asserting their own
constitutional claims. Here, they are not. And as this Court (and all others) have
made clear, the third-party standing requirements are in addition to Article III’s in-
jury-in-fact requirement. E.g., Freilich, 313 F.3d at 215 (explaining that “a plaintiff
any other case. See Warth, 422 U.S. at 499 (explaining that “even when the plaintiff
has alleged injury sufficient to meet the ‘case or controversy’ requirement, this Court
has held that the plaintiff generally must assert his own legal rights and interests”).
The second basis for the district court’s refusal to address the third-party
standing requirements was its view that “the Supreme Court has long established
that abortion providers have standing to assert their patients’ rights.” App. 288 (cit-
ing Singleton and June Medical). The Abortion Centers claim that they—unlike
every other litigant in every other type of case—need not prove any of the third-
26
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party standing requirements to assert the constitutional rights of another. But “stand-
ing is not dispensed in gross,” including to abortionists for any and all claims. Lewis
v. Casey, 518 U.S. 343, 358 n.6 (1996). Standing is necessarily a case-by-case in-
quiry. See Freilich, 313 F.3d at 215. Yet the Abortion Centers have not made any
Singleton and June Medical do not set forth a per se rule that abortionists
always have third-party standing. According to the district court, the June Medical
“majority opined abortion providers have standing to assert the constitutional rights
of their patients.” App. 288. That is wrong for at least two reasons. For one, there
was no majority opinion in June Medical. For another (and as noted), the plurality
held that the issue had been “waived,” “bar[ring]” the Court’s consideration. 140 S.
Ct. at 2117–18. Chief Justice Roberts, in his controlling concurrence, agreed only
that the abortionists “in this case have standing.” Id. at 2139 n.4 (emphasis added).4
Another state’s concession that abortionists have standing to challenge that state’s
law does not prevent South Carolina from contesting different abortionists’ standing
4
The dissenting Justices said that the plurality resolved the issue on waiver, not the
merits, and no Justice disagreed. See 140 S. Ct. at 2143 (Thomas, J., dissenting)
(“[U]ltimately, [the plurality] dodges the question, claiming that Louisiana’s stand-
ing challenge was waived below.”); id. at 2165 (Alito, J., dissenting) (similar).
27
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As for Singleton, the plurality there spent pages applying the third-party re-
quirements set forth above, describing them as “factual.” 428 U.S. at 112–18. Yet
the district court here never engaged in any factual analysis to determine if these
requirements were satisfied. Of course, the court had nothing to analyze, since the
Abortion Centers failed to make any relevant allegations, much less provide evi-
these requirements disproves that there is any automatic abortionist standing rule.
That is especially true since the controlling concurrence in Singleton found standing
based on “two facts”: (1) the abortionists had “a financial stake in the outcome of
the litigation,” and (2) they claimed “that the statute impair[ed] their own constitu-
tional rights.” Id. at 121 (Stevens, J., concurring in part); see Marks v. United States,
430 U.S. 188, 193 (1977) (narrowest opinion controls). Here, the Abortion Centers
do not and cannot claim that the Act impairs their rights.
Whatever was true in other cases involving other facts, the Abortion Centers
seek here to deny mothers rights by depriving them of the opportunity to view an
ultrasound of their child, withholding relevant information from them, and stripping
them of their right to sue the Centers. Contra the district court, that is not “assert[ing]
their patients’ rights,” App. 288—it is taking them away. Again, neither the district
28
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court nor the Abortion Centers identified any case finding third-party standing where
the third-party plaintiff brought a derivative action to deprive the first party of legal
derscores the unsoundness of the district court’s new automatic abortionist standing
rule. For instance, if abortionists, under the guise of vindicating rights of actual or
hypothetical customers, can automatically challenge any regulation that affects their
them—there is no apparent reason they could not sue “on behalf of” women to dis-
tion against abortionists who provide “egregious and substandard care” to the
women who they supposedly represent. Planned Parenthood of Wis., Inc. v. Van
Hollen, 738 F.3d 786, 802–03 (7th Cir. 2013) (Manion, J., concurring in part and in
minor and left fetal remains in a woman’s uterus causing her excruciating pain.”);
and the Court should not endorse it here. Abortionists do not have a special exemp-
tion from fundamental legal principles or ordinary litigation rules. Because the
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Abortion Centers do not even try to follow those rules here, they cannot succeed.
The injunction should be reversed, and the case remanded for dismissal.
Even if the Abortion Centers had standing in the constitutional sense, they
lack statutory standing. So-called “statutory standing” involves whether the plaintiff
has “a cause of action under the statute.” Lexmark, 572 U.S. at 128 & n.4. When
analyzing this question, the Court’s “task is essentially one of statutory construc-
tion,” and if “the statutory language provides a clear answer, [the] analysis begins
and ends with that language.” CGM, LLC v. BellSouth Telecomms., Inc., 664 F.3d
The Abortion Centers assert only one cause of action: 42 U.S.C. § 1983. App.
18, 33. But as this Court has explained and the other circuits broadly agree, “[a]
section 1983 claim must be based upon the violation of plaintiff’s personal rights,
and not the rights of someone else.” Howerton v. Fletcher, 213 F.3d 171, 173 (4th
Cir. 2000) (quoting Archuleta v. McShan, 897 F.2d 495, 497 (10th Cir. 1990)). Thus,
“the section 1983 plaintiff” does not have “standing to seek and obtain relief for
[deprivation of rights] against third parties.” Id. Because the Abortion Centers here
5
By the district court’s explanation, its preliminary injunction order “con-
cluded . . . that Plaintiffs are able, under Section 1983, to assert a claim on behalf of
their patients.” App. 197. The court offered no further analysis.
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drews v. Neer, 253 F.3d 1052, 1056 (8th Cir. 2001). Only “the party injured” may
bring an action, not “a party injured.” And the definite article “the” signifies that
“the party injured” refers to the statute’s earlier description of the “citizen” or “other
“[G]rammar and usage establish that ‘the’ is a function word indicating that a
context.” Nielsen v. Preap, 139 S. Ct. 954, 965 (2019) (cleaned up). Moreover, “the
use of the definite article indicates that there is generally only one person covered.”
Cochise Consultancy, Inc. v. United States ex rel. Hunt, 139 S. Ct. 1507, 1514 (2019)
(cleaned up). “The only antecedent possible” here is the “citizen” or “other person”
identified earlier in the sentence. Miller’s Apple Valley Chevrolet Olds-Geo, Inc. v.
Goodwin, 177 F.3d 232, 234 (4th Cir. 1999). Because “courts must presume that a
legislature says in a statute what it means and means in a statute what it says there,”
31
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and the words of § 1983 “are unambiguous,” the “judicial inquiry is complete.” Lee
v. Boeing Co., 123 F.3d 801, 805 (4th Cir. 1997) (cleaned up). Section 1983 pro-
vides a cause of action for plaintiffs who assert that they were deprived of legal
rights—and no one else. Because the Abortion Centers do not assert that they were
deprived of any constitutional right, their sole claim fails as a matter of law. The
B. Courts and scholars agree that § 1983 does not provide a cause of
action for third parties.
This Court has said that “the section 1983 plaintiff” does not have statutory
“standing to seek and obtain relief for [deprivation of rights] against third parties.”
Howerton, 213 F.3d at 173. This has long been Circuit law: “to state a civil rights
claim upon which relief can be granted under 42 U.S.C. § 1983, one must allege that
by the Constitution and laws of the United States.” Inmates v. Owens, 561 F.2d 560,
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562–63 (4th Cir. 1977).6 This rule follows from the text of § 1983 and is consistent
with what other courts and scholars have said about it.
Other circuits agree with this Court’s interpretation: “The § 1983 cause of
action, by virtue of the explicit language of the section itself, is a personal action
cognizable only by the party whose civil rights had been violated.” Jaco v. Bloechle,
739 F.2d 239, 241–42 (6th Cir. 1984); see also, e.g., Barber v. Overton, 496 F.3d
449, 458 (6th Cir. 2007) (Section 1983 “does not confer standing on anyone injured
interrelated the harms suffered.”); Claybrook v. Birchwell, 199 F.3d 350, 357 (6th
Cir. 2000) (“[A] section 1983 cause of action is entirely personal to the direct victim
of the alleged constitutional tort.”); Ray v. Maher, 662 F.3d 770, 773–74 (7th Cir.
2011) (calling it a “bedrock principle of § 1983 law” that “§ 1983 claims are per-
sonal to the injured party”); Garrett v. Clarke, 147 F.3d 745, 746 (8th Cir. 1998)
(“Garrett may not base his Section 1983 action on a violation of the rights of third
6
See also, e.g., English v. Powell, 592 F.2d 727, 730 (4th Cir. 1979) (explaining that
a wife “cannot rest her claim to relief solely on the legal rights of her husband”);
Settle v. Slager, 2015 WL 12865194, at *2 (D.S.C. May 20, 2015) (“A § 1983 claim
must be based on the violation of one’s own rights, not the rights of someone else.”),
aff’d, 628 F. App’x 206 (4th Cir. 2016) (“Settle has no standing to assert the consti-
tutional rights of a third party”); Mitchell v. Cannon, 2009 WL 824202, at *18
(D.S.C. Mar. 26, 2009) (“Plaintiff may not base a § 1983 claim on a violation of the
rights of third parties.”), aff’d, 367 F. App’x 390 (4th Cir. 2010); Assa’d-Faltas v.
Weiss, 2015 WL 4487759, at *6 (D.S.C. July 23, 2015) (same), aff’d, 639 F. App’x
181 (4th Cir. 2016).
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parties.”); Brossart v. Janke, 859 F.3d 616, 627 n.7 (8th Cir. 2017) (holding that “the
Amended Complaint failed to assert a § 1983 claim for” a “derivative” injury); Ad-
vantage Media, LLC v. City of Eden Prairie, 456 F.3d 793, 801 (8th Cir. 2006) (not-
ing that § 1983 imposes liability “only for violations of a party’s own constitutional
rights”); Outdoor Media Grp., Inc. v. City of Beaumont, 506 F.3d 895, 907 (9th Cir.
2007) (same); McKelvie v. Cooper, 190 F.3d 58, 64 (2d Cir. 1999) (stating the “well-
settled principle that a section 1983 claim must be based upon the violation of plain-
tiff’s personal rights, and not the rights of someone else” (cleaned up)); Archuleta,
897 F.2d at 497 (same, and collecting cases); Barker v. Halliburton Co., 645 F.3d
297, 300 (5th Cir. 2011) (“A third party may not assert a civil rights claim based on
the civil rights violations of another individual.”); Coon v. Ledbetter, 780 F.2d 1158,
1160 (5th Cir. 1986) (explaining that § 1983 plaintiffs are “required to prove some
violation of their personal rights,” and collecting cases); Estate of Gilliam ex rel.
Waldroup v. City of Prattville, 639 F.3d 1041, 1047 (11th Cir. 2011) (“[B]y its own
terms, § 1983 grants the cause of action ‘to the party injured.’”).
As the Tenth Circuit explained in one case, though “a father is closely related
to the son and, thus, he feels the injury to a tremendous extent when his son suffers
death,” a “§ 1983 civil rights action is a personal suit” that “does not accrue to a
relative, even the father of the deceased.” Dohaish v. Tooley, 670 F.2d 934, 936–37
(10th Cir. 1982). Nor can a person state a § 1983 claim based on “indirect injuries
34
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allegedly caused to him by reason of any constitutional tort suffered by his spouse.”
Claybrook, 199 F.3d at 358 n.9. If § 1983 does not allow a father to sue on behalf
of his dead son or a husband to sue on behalf of his wife, it certainly does not allow
ical customers.
I, but that does not answer this statutory question. See Sessions v. Morales-Santana,
137 S. Ct. 1678, 1689 (2017) (stating that a father-son relationship “easily satisfies
one of them dies). Otherwise, none of the cases cited above—many of which in-
question. Of course the surviving relative has a “close relationship” with the dece-
dent, who of course has a significant “hindrance” to bringing his own action. But
that is insufficient, because § 1983 does not allow a plaintiff to sue based on a pur-
Section 1983 “authorizes suit by anyone alleging that he has been deprived of rights
under the Constitution or federal law, and by no one else.” David P. Currie, Misun-
derstanding Standing, 1981 Sup. Ct. Rev. 41, 45. Section 1983 “thus incorporates,
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but without exceptions, the Court’s ‘prudential’ principle that the plaintiff may not
assert the rights of third parties.” Id. (emphasis added); see also 1 Sheldon H.
Nahmod, Civil Rights & Civil Liberties Litigation: The Law of Section 1983 § 1:10
(4th ed. 2020) (explaining that a Ҥ 1983 cause of action . . . is given to [any person]
and Federal Common Law, 36 La. L. Rev. 681, 690 (1976) (“It would be a strained
reading of section 1983 to say that the ‘person’ deprived of his rights and the ‘party
Even in more general § 1983 cases, the Supreme Court’s and this Court’s dis-
cussions of the statute are predicated on the rule that a plaintiff may not bring a
the Supreme Court, the “plain words of the statute impose liability . . . only for con-
a right secured by the Constitution and laws.” Rizzo v. Goode, 423 U.S. 362, 370–
71 (1976) (emphasis added). The Court has always interpreted § 1983 as providing
a cause of action only to parties who themselves suffered a deprivation of legal rights.
See, e.g., Ziglar v. Abbasi, 137 S. Ct. 1843, 1854 (2017) (“[Section 1983] entitles an
injured person to money damages if a state official violates his or her constitutional
36
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rights.”); Inyo County v. Paiute-Shoshone Indians, 538 U.S. 701, 708 (2003) (“[Sec-
tion 1983] permits ‘citizens’ and ‘other persons within the jurisdiction’ of the United
States to seek legal and equitable relief from ‘persons’ who . . . deprive them of fed-
erally protected rights.” (brackets omitted)); Felder v. Casey, 487 U.S. 131, 139
(1988) (explaining that “Section 1983 creates a species of liability in favor of per-
This Court has likewise required that “[o]ne alleging a violation of section
1983 must prove that the charged state actor . . . deprived plaintiff of a right secured
by the Constitution and laws of the United States.” Philips v. Pitt Cnty. Mem’l
Hosp., 572 F.3d 176, 180 (4th Cir. 2009). Once again, its discussions of § 1983
confirm that the statute confers a cause of action only on the person actually deprived
of constitutional rights. See, e.g., id. (Section 1983 “is a federal statutory remedy
Charleston Area Med. Ctr., Inc., 562 F.3d 599, 615 (4th Cir. 2009) (“To state a claim
under § 1983, a plaintiff must aver that a person acting under color of state law de-
States.”); Austin v. Paramount Parks, Inc., 195 F.3d 715, 727 (4th Cir. 1999) (ex-
plaining that a § 1983 plaintiff has “the burden to establish that she was ‘deprived of
37
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Here, the Abortion Centers affirmatively allege that other persons—and only
those persons—suffered the alleged deprivation of legal rights. App. 33; see Casey,
505 U.S. at 884 (emphasizing that any right of the abortionist is purely “derivative
F.3d 908, 910 (6th Cir. 2019) (en banc) (noting that abortionists “do not have a due
process right to perform abortions”). Therefore, the Abortion Centers are not “the
party injured” under § 1983 and cannot state a claim, much less demonstrate a clear
Yet again, the Abortion Centers will point to various abortion cases that did
not consider or analyze this issue, and instead focused on the third-party constitu-
tional standing doctrine discussed in Part I. But if an issue is not “raised in briefs or
argument nor discussed in the opinion,” the opinion is “not a binding precedent” on
that issue. United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 38 (1952).
statutory standing, must be considered sua sponte—the Supreme Court “has fol-
lowed the lead of Chief Justice Marshall who held that this Court is not bound by a
prior exercise of jurisdiction in a case where it was not questioned and it was passed
sub silentio.” Id. “[U]nder our adversarial system of justice, an unchallenged and
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untested assumption is simply not a holding that binds future courts.” United States
v. Norman, 935 F.3d 232, 241 (4th Cir. 2019). As shown, any assumption that a
party who did not suffer a deprivation of legal rights can nonetheless bring a § 1983
claim would run headlong into a wall of precedents that actually considered this
issue—including binding Circuit precedent. See, e.g., Howerton, 213 F.3d at 173.
At bottom, Section 1983 is not a master key to the courthouse doors allowing
doors not contemplated or created by Congress for third parties and professional
plaintiffs—should give the Court pause. Since the Abortion Centers’ only cause of
action is under § 1983 and they cannot state a derivative § 1983 claim, they cannot
succeed. Accordingly, in light of this Court’s precedent and § 1983’s plain text, the
Court should reverse the district court’s injunction and remand the case for dismis-
sal.
Even putting aside the fatal flaws in the Abortion Centers’ novel theory of
automatic abortionist standing and their derivative § 1983 claim, the district court’s
injunction cannot stand. Most of the Act consists of various disclosure, notice,
39
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recordkeeping, and reporting requirements that the Abortion Centers do not directly
challenge. Yet the district court preliminarily enjoined enforcement of the entire
Act. Particularly given the Act’s severability clause, which directs that every single
“word” go into effect regardless of what happens to other portions of the Act, this
sweeping injunction was error. And it was doubly erroneous because the district
court made no findings whatsoever regarding the Act’s unchallenged provisions and
A. The Abortion Centers did not and cannot show a clear likelihood
of success in attacking the entire Act.
valid.” United States v. Miselis, 972 F.3d 518, 541 (4th Cir. 2020) (cleaned up).
Thus, this Court applies “a strong presumption of severability,” id., with “the normal
rule [being] that partial invalidation is the required course,” Ameur v. Gates, 759
F.3d 317, 325 (4th Cir. 2014) (cleaned up); see also United States v. Arthrex, Inc.,
141 S. Ct. 1970, 1986 (2021) (plurality opinion). The presumption of severability is
stronger still in the presence of a severability clause. See Pittston Co. v. United
States, 368 F.3d 385, 400 (4th Cir. 2004); see also, e.g., N.C. State Conf. of NAACP
v. McCrory, 831 F.3d 204, 239 (4th Cir. 2016) (“We sever the challenged provisions
from the remainder of the law because it contains a severability clause to which we
defer under [state] law.” (citation omitted)). And of course, all “[i]njunctions must
40
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be narrowly tailored and should prohibit only unlawful conduct.” CPC Int’l, Inc. v.
The injunction issued below, however, prohibits and enjoins independent pro-
visions of the Act that the Abortion Centers do not even argue are unlawful. In two
paragraphs of summary analysis, the district court attempted to justify its sweeping
injunction based on its view that the Act’s unchallenged provisions “are unable to
Under South Carolina law, which governs the severability analysis, “[w]hen
being executed in accordance with the Legislative intent, independent of the rejected
portion, the Act as a whole should not be stricken as being in violation of a Consti-
tutional Provision.” In re DNA Ex Post Facto Issues, 561 F.3d 294, 301 (4th Cir.
2009) (quoting Joytime Distribs. & Amusement Co. v. South Carolina, 528 S.E.2d
647, 654 (S.C. 1999)). Courts “must be hesitant to declare any portion of a statute
to do so does not impair the remainder of the statute.” Joytime, 528 S.E.2d at 655;
see also Stone v. Traynham, 297 S.E.2d 420, 422 (S.C. 1982) (“The separation and
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The central question is whether “the constitutional portion of the statute” “is of such
a character that it may fairly be presumed that the legislature would have passed it
independent of that which conflicts with the constitution.” Ex Post Facto Issues,
561 F.3d at 301; see also Covenant Media of S.C., LLC v. City of N. Charleston, 493
Here, the Act’s severability clause answers that question beyond any doubt:
Every single “word” not challenged must go into effect. The South Carolina Su-
preme Court, interpreting a near-identical provision, has explained that such a sev-
erability clause “is strongly worded and evidences strong legislative intent that the
several parts of [the act] be treated independently.” Joytime, 528 S.E.2d at 654.
which focuses on the text as “the best evidence of the legislative intent.” Smith v.
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Tiffany, 799 S.E.2d 479, 483 (S.C. 2017) (cleaned up). Under this “cardinal rule” of
interpretation, “[w]here the statute’s language is plain and unambiguous, and con-
veys a clear and definite meaning, the rules of statutory interpretation are not needed
and the court has no right to impose another meaning.” Hodges v. Rainey, 533
S.E.2d 578, 581 (S.C. 2000). Nothing about the Act’s robust severability clause is
ambiguous, so the analysis should end: everything that the Abortion Centers do not
Consider, for example, the new § 44-41-630, which requires the abortionist to
perform an ultrasound, give the mother the option to view her unborn child, and
record a medical description of the images. If this section had been passed as a
And the severability clause mandates that the courts treat this section, and all other
similar unchallenged sections, just like that—as a standalone provision that survives
any invalidation of another provision. That should be the end of the matter.
Any further (unnecessary) analysis only confirms the Act’s text. For instance,
the structure of the Act underscores the independence of its various provisions. Cf.
Joytime, 528 S.E.2d at 655 (looking to structure). The regulation directly challenged
by the Abortion Centers is codified in one statutory section (S.C. Code Ann. § 44-
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Moreover, the Act’s other provisions logically stand apart from the single
challenged provision. For instance, Section 4 of the Act adds certain information to
the reporting requirements that the abortionist must submit to DHEC after he per-
forms an abortion. The Abortion Centers challenge neither the preexisting require-
ments (which have been upheld by this Court, Bryant, 222 F.3d at 169–72) nor the
challenged provision.
As another example, requiring the abortionist to give the mother the oppor-
tunity to see an ultrasound and hear her child’s heartbeat advances legitimate state
the abortionist could then terminate the unborn child’s life and the mother’s preg-
nancy. As the Supreme Court has explained, “most women considering an abortion
would deem the impact on the fetus relevant, if not dispositive, to the decision,” and
“[i]n attempting to ensure that a woman apprehend the full consequences of her de-
cision, the State furthers the legitimate purpose of reducing the risk that a woman
may elect an abortion, only to discover later, with devastating psychological conse-
quences, that her decision was not fully informed.” Casey, 505 U.S. at 882.
In sum, even absent a severability clause, the district court’s injunction would
close call. This Court should not countenance such a judicial intrusion upon South
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of state law. Therefore, at a minimum, the Court should vacate the district court’s
A binding Supreme Court decision on all fours with this case—but ignored by
the district court—rejected a severability argument much like the one made here by
the Abortion Centers. In Leavitt v. Jane L., the Court was confronted with two abor-
tion regulations in the same statute with a severability clause similar to the Act’s.
518 U.S. 137, 138–40 (1996) (per curiam). The Court of Appeals had refused to
sever the regulations because, in its view, doing so “would clearly undermine the
legislative purpose to ban most abortions.” Id. at 143 (cleaned up). Relying on
YouTube videos of individual legislators, the Abortion Centers here made the same
argument: “the Six-Week Ban gives SB 1 its purpose.” ECF No. 59, at 12.
wrong,” “blatant federal-court nullification of state law.” 518 U.S. at 145. The
Court said there was “no need to resort to conjecture” about legislative intent, be-
cause the law included “a provision that could not be clearer in its message that the
legislature would have passed every aspect of the law irrespective of the fact that
any one or more provision be declared unconstitutional.” Id. at 141 (cleaned up).
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The Court likewise rejected the argument that the regulations were “interrelated,”
and thus could not be severed, emphasizing that the “relevant” question was whether
they were “so interdependent that the remainder of the statute cannot function effec-
tively without the invalidated provision.” Id. Here, as in Leavitt, the unchallenged
provisions of the Act are capable of operating separately, and the “statutory text”
“explicitly states” that the courts must allow them to do so. Id. at 144.
its own intent in enacting regulations of abortion,” id. at 140, routinely severing and
Supp. 3d 1091, 1101 (E.D. Ark. 2014) (holding “that the remaining heartbeat testing
and disclosure requirements are independently capable of furthering the stated pur-
pose of” the law and must take effect even absent a severability clause), aff’d, 786
F.3d 1113 (8th Cir. 2015); MKB Mgmt. Corp. v. Stenehjem, 795 F.3d 768, 776 n.6
(8th Cir. 2015) (indicating that a statutory requirement that the abortionist “inform
the pregnant woman whether her unborn child possesses a detectable heartbeat”
Despite the Act’s clear severability clause and analogous precedents, the dis-
trict court carved its own path. The court did not question that the unchallenged
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provisions are indeed “capable” of being executed in accord with the Act’s express
“intent,” Ex Post Facto Issues, 561 F.3d at 301—namely, that every single “word”
not challenged go into effect. Act § 7. Indeed, even the Abortion Centers never
questioned that fact. Instead, the district court asserted that “[t]he only purpose of”
“the mandatory ultrasound disclosure provision” “is to facilitate” the challenged reg-
ulation. App. 298–99. The district court did not explain how requiring an abortionist
to give the mother the opportunity and option to view an ultrasound of her unborn
child “facilitates” the challenged provision at all. In any event, as Leavitt demon-
strates, the court’s speculation—and attempt to substitute its assessment for the Gen-
eral Assembly’s intent and the Act’s text—is both incorrect and irrelevant.
by the fact that similar provisions have been widely enacted and repeatedly upheld
in court—which is presumably why the Abortion Centers here do not challenge the
the audible beating fetal heart gives a patient greater knowledge of the unborn life
inside her.” EMW Women’s Surgical Ctr., P.S.C. v. Beshear, 920 F.3d 421, 430 (6th
Cir. 2019); id. at 432–34 (collecting similar cases); cf. Casey, 505 U.S. at 881–83,
“The State has an interest in ensuring so grave a choice is well informed,” especially
given that “some women come to regret their choice to abort the infant life they once
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ultrasound allows an abortion doctor to get a clear picture of the woman’s preg-
nancy—including the gestational age and size of the unborn child, whether there are
twins, whether the heart is beating, and the orientation of the unborn child within the
uterus—which allows the doctor to anticipate any likely complications.” Van Hol-
len, 738 F.3d at 803 (Manion, J., concurring in part). Finally, ultrasounds “are
viewed as ‘medically necessary’ for the mother” because they can reveal important
information about her health. Texas Med. Providers Performing Abortion Servs. v.
Lakey, 667 F.3d 570, 579 (5th Cir. 2012). Underscoring the importance of ultra-
sounds to both fetal and maternal health, state regulations already require abortion-
ticular statutory provisions may not be substituted for the elected branches’ judg-
ment. It does not matter if the district court thought that giving mothers more infor-
mation is a valid purpose (though it is), or even if it thought the provision advances
that purpose (though it does). The only question is whether “it may fairly be pre-
sumed the legislature would have passed [the other provisions] independent of” the
challenged one. Joytime, 528 S.E.2d at 654. According to the best evidence of
legislative intent—the law itself—the answer is unquestionably yes. The plain text
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of the Act shows that the People’s representatives thought every single “word” had
independent purpose and importance. Act § 7. The district court’s departure from
that text “usurps the constitutional allocation of the power to write a statute.” United
States v. Under Seal, 819 F.3d 715, 724 (4th Cir. 2016); see Tiffany, 799 S.E.2d at
488 (“We construe the statute in a manner to give effect to the policy decision made
district court necessarily, and needlessly, interfered with the General Assembly’s
command that the Act take effect immediately upon approval by the Governor. See
As to the other provisions in Section 3 of the Act, the district court stated that
“they are also so intertwined” with the ultrasound provision and challenged regula-
tion “as to preclude severability.” App. 299. As an initial matter, the ultrasound
provision is irrelevant to the question of whether other provisions are severable, be-
cause it was not challenged and, as just shown, is capable of being executed inde-
pendently. Severability is not dominoes. And neither the district court nor the Abor-
tion Centers have explained why the other provisions are “so intertwined” that the
federal courts can substitute their judgment for that of the General Assembly. Why
can’t the requirement to give a mother the chance to hear her unborn child’s heart-
beat operate independently of the challenged provision? How have similar require-
ments in many other States worked perfectly well? Why can’t the cause of action
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for women who have been unlawfully deprived of relevant information operate in-
dependently? These questions were posed below, yet one searches the Abortion
Centers’ filings and district court’s orders in vain for any answers.
The district court went farther still, also redlining the Act’s reporting and dis-
references the words ‘fetal heartbeat’ as it is defined in” the Act or other references
to Section 3. App. 299. But the Abortion Centers do not challenge that definition
or the other references, and they certainly could not prevail as to any such challenge.
And again, neither the Centers nor the district court suggested that the disclosure and
cuted independently (as the General Assembly commanded), much less identified
any infirmity with the substance of the requirements—which have been previously
upheld by this Court. See Bryant, 222 F.3d at 169–75. Even in the context of a
ute”—which is not the case here—such a provision “is capable of functioning inde-
pendently as a fully operative law.” Ameur, 759 F.3d at 330 (cleaned up); see also
enjoins many provisions of the Act not directly challenged by the Abortion Centers
and that are, by legislative command, independent from the regulation that they do
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judges “nullify more of the work of the people’s elected representatives than is con-
federal courts do not have the power to rewrite state law. The overbroad injunction
should be vacated.
B. The Abortion Centers did not satisfy the other injunction require-
ments regarding the Act’s unchallenged provisions.
Even if the Abortion Centers had shown a clear likelihood of success in their
effort to invalidate the entire Act, they must demonstrate and the district court must
“separately consider” whether they are “likely to suffer irreparable harm in the ab-
sence of preliminary relief,” whether “the balance of equities tips in [their] favor,”
and whether “an injunction is in the public interest.” Di Biase, 872 F.3d at 230
(cleaned up). Despite the Abortion Centers’ burden to satisfy all four preliminary
injunction factors, they never discussed them in the context of the unchallenged pro-
visions, and the district court made no findings about them. This failure alone was
error. See Fed. R. Civ. P. 52(a)(2) (“In granting or refusing an interlocutory injunc-
tion, the court must similarly state the findings and conclusions that support its ac-
tion.”).
In all events, the Abortion Centers could not satisfy the other factors. The
potential time and expense to the Abortion Centers of giving mothers adequate in-
formation to make informed decisions is not an irreparable harm. See Di Biase, 872
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F.3d at 230. Mothers are helped by receiving that information. Casey, 505 U.S. at
882. Giving mothers adequate information also promotes the State’s legitimate in-
terests in protecting and preserving human life and maternal health. See id.; EMW,
920 F.3d at 430 (“That this information might persuade a woman to change her mind
does not render it suspect . . . . It just means that it is pertinent to her decision-
making.”). And “any time a State is enjoined by a court from effectuating statutes
yland v. King, 567 U.S. 1301, 1303 (2012) (Roberts, C.J., in chambers) (cleaned up).
Because the Abortion Centers did not demonstrate the prerequisites for a pre-
liminary injunction against the unchallenged provisions, the Court should vacate the
injunction. See CPC, 214 F.3d at 461 (explaining that any injunction “must be tai-
CONCLUSION
For the foregoing reasons, the Court should reverse the district court’s prelim-
inary injunction and remand the case for dismissal. At a minimum, the Court should
vacate the district court’s overbroad injunction of the Act and unchallenged provi-
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Respectfully submitted,
s/ Christopher Mills
THOMAS A. LIMEHOUSE, JR. CHRISTOPHER MILLS
WM. GRAYSON LAMBERT Spero Law LLC
Office of the Governor 1050 Johnnie Dodds Blvd. #83
South Carolina State House Mt. Pleasant, SC 29465
1100 Gervais Street (843) 606-0640
Columbia, South Carolina 29201 [email protected]
(803) 734-2100
JULY 7, 2021
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CERTIFICATE OF COMPLIANCE
32(a)(7)(b) because, excluding the parts of the document exempted by Fed. R. App.
32(a)(5) and the type-style requirements of Fed. R. App. P. 32(a)(6) because this
/s Christopher Mills
Christopher Mills
USCA4 Appeal: 21-1369 Doc: 32 Filed: 07/07/2021 Pg: 65 of 76
CERTIFICATE OF SERVICE
I, Christopher Mills, an attorney, certify that on this day the foregoing Brief
s/ Christopher Mills
Christopher Mills
USCA4 Appeal: 21-1369 Doc: 32 Filed: 07/07/2021 Pg: 66 of 76
ADDENDUM
USCA4 Appeal: 21-1369 Doc: 32 Filed: 07/07/2021 Pg: 67 of 76
STATUTORY PROVISIONS
2021 S.C. Acts No. 1, South Carolina Fetal Heartbeat and Protection from
Abortion Act
Citation
SECTION 1. This act shall be known and may be cited as the “South Carolina Fetal
Heartbeat and Protection from Abortion Act”.
Findings
(2) fewer than five percent of all natural pregnancies end in sponta-
neous miscarriage after the detection of a fetal heartbeat;
(3) over ninety percent of in vitro pregnancies survive the first tri-
mester if a fetal heartbeat is detected;
(7) the State of South Carolina has legitimate interests from the out-
set of a pregnancy in protecting the health of the pregnant woman and the life of the
unborn child who may be born; and
“Article 6
(3) ‘Fetal heartbeat’ means cardiac activity, or the steady and repetitive
rhythmic contraction of the fetal heart, within the gestational sac.
(4) ‘Gestational age’ means the age of an unborn human individual as cal-
culated from the first day of the last menstrual period of a pregnant woman.
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(5) ‘Gestational sac’ means the structure that comprises the extraembry-
onic membranes that envelop the human fetus and that is typically visible by ultra-
sound after the fourth week of pregnancy.
(9) ‘Physician’ means any person licensed to practice medicine and sur-
gery, or osteopathic medicine and surgery, in this State.
(B) If the United States Supreme Court issues a decision overruling Roe v.
Wade, 410 U.S. 113 (1973), any other court issues an order or judgment restoring,
expanding, or clarifying the authority of states to prohibit or regulate abortion en-
tirely or in part, or an amendment is ratified to the Constitution of the United States
restoring, expanding, or clarifying the authority of states to prohibit or regulate
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abortion entirely or in part, then the Attorney General may apply to the pertinent
state or federal court for either or both of the following:
(C) If the Attorney General fails to apply for relief pursuant to subsection
(B) within a thirty-day period after an event described in that subsection occurs, then
any solicitor may apply to the appropriate state or federal court for such relief.
(2) during the performance of the ultrasound, display the ultrasound images
so that the pregnant woman may view the images; and
Section 44-41-640. If a pregnancy is at least eight weeks after fertilization, then the
abortion provider who is to perform or induce an abortion, or an agent of the abortion
provider, shall tell the woman that it may be possible to make the embryonic or fetal
heartbeat of the unborn child audible for the pregnant woman to hear and shall ask
the woman if she would like to hear the heartbeat. If the woman would like to hear
the heartbeat, then the abortion provider shall, using whichever method the physician
and patient agree is best under the circumstances, make the fetal heartbeat of the
unborn child audible for the pregnant woman to hear.
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(B) A person who violates subsection (A) is guilty of a felony and, upon
conviction, must be fined ten thousand dollars, imprisoned not more than two years,
or both.
Section 44-41-660. (A) Section 44-41-650 does not apply to a physician who per-
forms or induces an abortion if the physician determines according to standard med-
ical practice that a medical emergency exists that prevents compliance with the sec-
tion.
(2) the medical condition of the pregnant woman that assertedly pre-
vented compliance with Section 44-41-650; and
(C) For at least seven years from the date the notations are made, the phy-
sician shall maintain in his own records a copy of the notations.
Section 44-41-680. (A) Except as provided in subsection (B), no person shall per-
form, induce, or attempt to perform or induce an abortion on a pregnant woman with
the specific intent of causing or abetting the termination of the life of the human
fetus the pregnant woman is carrying and whose fetal heartbeat has been detected in
accordance with Section 44-41-630.
(1) the pregnancy is the result of rape, and the probable post-fertili-
zation age of the fetus is fewer than twenty weeks;
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(2) the pregnancy is the result of incest, and the probable post-ferti-
lization age of the fetus is fewer than twenty weeks;
(D) A person who violates subsection (A) is guilty of a felony and, upon
conviction, must be fined ten thousand dollars, imprisoned not more than two years,
or both.
Section 44-41-690. (A) Section 44-41-680 does not apply to a physician who per-
forms a medical procedure that, by any reasonable medical judgment, is designed or
intended to prevent the death of the pregnant woman or to prevent the serious risk
of a substantial and irreversible impairment of a major bodily function of the preg-
nant woman.
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prevent the serious risk of a substantial and irreversible impairment of a major bodily
function of the pregnant woman.
Section 44-41-720. Nothing in this article prohibits the sale, use, prescription, or ad-
ministration of a drug, device, or chemical that is designed for contraceptive pur-
poses.
Section 44-41-740. (A) A woman who meets any one or more of the following
criteria may file a civil action in a court of competent jurisdiction:
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( ) Whether the reason for the abortion was to preserve the health of
the pregnant woman and, if so, the medical condition that the abortion was asserted
to address and the medical rationale for the conclusion that an abortion was neces-
sary to address that condition. If the reason for the abortion was other than to pre-
serve the health of the pregnant woman, then the report must specify that maternal
health was not the purpose of the abortion. This information must also be placed in
the pregnant woman’s medical records and maintained for at least seven years there-
after.”
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“Section 44-41-60. Any abortion performed in this State must be reported by the per-
forming physician on the standard form for reporting abortions to the State Registrar,
Department of Health and Environmental Control, within seven days after the abor-
tion is performed. The names of the patient and physician may not be reported on
the form or otherwise disclosed to the State Registrar. The form must indicate from
whom consent was obtained, circumstances waiving consent, and, if an exception
was exercised pursuant to Section 44-41-660, which exception the physician relied
upon in performing or inducing the abortion.”
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Severability clause
Savings clause
SECTION 8. The repeal or amendment by this act of any law, whether temporary,
permanent, civil, or criminal, does not affect pending actions, rights, duties, or lia-
bilities founded thereon or alter, discharge, release, or extinguish any penalty, for-
feiture, or liability incurred under the repealed or amended law, unless the repealed
or amended provision shall so expressly provide. After the effective date of this act,
all laws repealed or amended by this act must be taken and treated as remaining in
full force and effect for the purpose of sustaining any pending or vested right, civil
action, special proceeding, criminal prosecution, or appeal existing as of the effec-
tive date of this act and for the enforcement of rights, duties, penalties, forfeitures,
and liabilities as they stood under the repealed or amended laws.
Time effective
A-10