Fourth Circuit Panel Upholds Wildly Overbroad Injunction Against SC Heartbeat Bill

Three judges (all appointed by pro-abortion Presidents) on the U.S. Court of Appeals for the Fourth Circuit just affirmed a sweeping injunction against the South Carolina Fetal Heartbeat and Protection from Abortion Act. As we previously wrote, the ACLJ had urged the court to cut back on the blatantly overbroad order of the district court. But on February 22nd, the three-judge panel unanimously declined to do so.

In Planned Parenthood South Atlantic v. Wilson, even though Planned Parenthood had challenged only one – the section banning abortions after fetal heartbeat -- out of roughly two dozen provisions of the new law, the district court judge, an Obama appointee, 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 district court’s overbroad injunction. As we explained:

The South Carolina Fetal Heartbeat and Protection from Abortion Act, SB 1 . . . contains many different provisions, including a robust severability provision, but the challenge by plaintiffs focused on just one provision, namely the criminal ban on post-heartbeat abortions. Yet the preliminary injunction the district court entered . . . enjoins “the entire Act” (p. 18) under the (erroneous) premise that the different provisions are not severable. This blunderbuss approach to relief was wrong . . . . The district court should not have granted a preliminary injunction against statutory provisions that plaintiffs [did not] challenge[] . . . .

As we explained, the Heartbeat Act consisted of nine different sections, and the third section of the Act adopted or amended fourteen different statutory sections. Of this range of legislative provisions, Planned Parenthood and its fellow plaintiffs targeted only one: the post-heartbeat ban section. As the plaintiffs themselves said, “the only effect of an injunction would be to prevent South Carolina from enforcing its plainly unconstitutional ban on previability abortions” (emphasis added). Well, that’s what the plaintiffs said. But that’s not what the district court judge – with the urging of plaintiffs – did.

Regrettably, the trio of appeals court judges – one appointed by President Clinton, two appointed by President Obama – saw no problem with the lower court’s gross overreach. The appeals court stated: “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.” But this assertion is manifestly incorrect. As we argued: “The remainder of the Act contains many sections and provisions that have independent significance, i.e., they remain functional regardless of whether the ban section is operative.”

We explained:

[T]here is obvious value, for example, to the provisions requiring heartbeat testing and communication to the pregnant woman that her baby has a heartbeat. Such powerful information clearly has immense potential value as a matter of informed consent. And in any event, whether such information ultimately sways a woman’s choice or not, the obtaining and communication of such information does not depend at all upon the operative force of the separate post-heartbeat ban provision.

Moreover, the Act:

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.

In sum, the argument that the Act must fall as a whole is not just wrong, it is “indefensible.”

This is not the first time we have dealt with federal judges grossly overreaching to invalidate an entire heartbeat law when only the ban section was challenged. We filed an amicus brief in an Ohio case with the same problem. Here at the ACLJ, we plan to keep insisting that courts mind their limits, especially in the context of protecting children before birth.