ACLJ Supports South Carolina's Request to Rehear Heartbeat Bill Case Before Full 4th Circuit

We recently reported that the U.S. Court of Appeals for the Fourth Circuit affirmed a sweeping injunction against the South Carolina Fetal Heartbeat and Protection from Abortion Act. As described earlier, the ACLJ had urged the court to cut back on the blatantly overbroad order of the district court. But a three-judge panel unanimously declined to do so. The state defendants responded by filing a petition for rehearing en banc, which means asking all of the judges on the Fourth Circuit – not just three – to rehear the case. The ACLJ has now filed a motion and amicus brief supporting the state’s petition for rehearing en banc.

In Planned Parenthood South Atlantic v. Wilson, Planned Parenthood had challenged South Carolina’s ban on abortions after fetal heartbeat is detected. Although this provision was only one out of roughly two dozen provisions of the new law, the district court judge had granted a preliminary injunction against the entire Act. The state appealed, and the ACLJ filed an amicus brief urging the Fourth Circuit to overturn – “vacate” – the overbroad injunction. But a panel of three federal appeals court judges affirmed the injunction as is, declaring that “the entirety of the statute was designed to carry out the ban.”

In our latest amicus filing, we directly challenge the panel’s premise:

The notion that everything in the Act somehow serves or is dependent upon the “ban” section is easily refuted. For example, Amended Sec. 44-41-460(a) adds a requirement that abortionists report for all abortions whether the abortion is done for health reasons or not, and if the abortion was done for health reasons, to explain the health rationale. This requirement has obvious epidemiological value. What proportion of abortions are done for health reasons as opposed to elective social reasons? Are physicians invoking health justifications that are flimsy or serious? If the latter, is there a maternal pregnancy health issue that warrants statewide attention? The effectiveness and value of this provision in no way depends on the operative force of the post-heartbeat ban section. Hence, there is no reason whatsoever it should be enjoined. Indeed, neither plaintiffs, nor the district court, nor the panel, make any attempt whatsoever to justify an injunction against this particular provision.

We likewise walk the court through many other provisions in the Act, including informed consent sections, explaining: “None of these sections rise or fall with the ban provision.” As we conclude:

The statute at issue here has multiple provisions that have value and force independent of the post-heartbeat ban, rendering the district court’s injunction of the entire Act wildly overbroad, and the panel’s affirmance of that injunction manifestly erroneous.

It is now up to the full Fourth Circuit to decide what to do with the state’s request for rehearing. Here at the ACLJ, we think it would be only right for the court to reconsider the panel’s misguided ruling that, as we put it, “leveraged a constitutional challenge against one provision of an Act into a wholesale invalidation of that legislation, in defiance of severability norms and basic jurisdictional principles.” The rules shouldn’t change just because it’s an abortion case.

Thankfully, the Fourth Circuit has now directed Planned Parenthood to file a response to the state’s petition for rehearing en banc. This is a hopeful sign, as it means the court of appeals is not rejecting the state’s petition out of hand. We will keep you updated as this important case progresses.