In 2016, could South Carolina require abortions after 18 weeks from conception to be performed in a hospital?

View original AG opinion (PDF)

Plain-English summary

A legislative oversight committee asked about a proposed rule limiting which abortions could be performed in clinics after 18 weeks from conception, about 20 weeks measured from the last menstrual period. The 2016 Attorney General considered only whether a hospital requirement at that point would be facially constitutional under the federal cases then governing abortion regulation. It predicted that a court would uphold the proposed rule under the Casey undue-burden standard.

The opinion contrasted older decisions striking down broad second-trimester hospital requirements with its reading of Casey and later decisions. It reasoned that a requirement taking effect later in the second trimester could be viewed as related to maternal health. It did not decide how a law would operate for particular patients or whether a specific statute had been enacted. Its constitutional analysis belongs to 2016 and should be read as historical analysis.

Currency note

This opinion was issued in 2016. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Was the committee asking about every second-trimester abortion?
A: No. The proposal it described concerned abortions after 18 weeks measured from conception, which the opinion described as about 20 weeks from the last menstrual period.

Q: Did the AG say the proposed requirement would survive any court challenge?
A: No. The opinion expressly limited itself to the facial validity of a proposed statute and predicted how a court would apply the then-governing standard.

Q: Why did the opinion discuss City of Akron and Casey?
A: It contrasted an older decision invalidating a hospital requirement across the whole second trimester with its view that Casey required an undue-burden analysis of the later proposed threshold.

Background and statutory framework

The committee had sought an assessment of a state health agency's recommendation. The opinion reviewed federal decisions on abortion facility rules and facial challenges, then applied its reading of the 2016 constitutional framework to the proposed 18-weeks-from-conception threshold. It presented a prediction about a hypothetical statute, not a statement of present law.

Citations and references

• The opinion stated that it addressed “only the question of the facial validity” of such a statute.
• Its conclusion predicted that the proposed requirement “would not impose an undue burden” under the framework it applied.

Official title

Regarding the constitutionality of an abortion regulation.

Requester

The Honorable Gary E. Clary, Ad Hoc Committee Chair, Legislative Oversight Committee.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/february-10-2016-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2016/02/Clary-G.-OS-10003-FINAL-Opinion-2-10-2016-00859004xD2C78.pdf

Original opinion text

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Alan Wilson
ATTORNEY GENERAL

February 10, 2016

The Honorable Gary E. Clary
Ad Hoc Committee Chair
Legislative Oversight Committee

Post Office Box 1 1 867
Columbia, SC 29211
Dear Representative Clary:

You have asked our opinion regarding the constitutionality of an abortion regulation. By way of background, you advise:
[o]n August 26, 2015, a motion was adopted for the House Oversight Committee to commence an investigation into state agencies, including, but

not limited to the Department of Social Services, the Department of Health and Environmental Control, and Department of Health and Human Services, relationship

with,

funding of,

and

other

activities

relating to Planned

Parenthood facilities and other abortion providers in South Carolina. On September 3, 2015, an ad hoc committee was appointed to undertake the study as stated in the motion. The ad hoc committee's study will be submitted for consideration by the full committee. Any legislator may file legislation, which will

go

through

the

normal

legislative

process,

to

implement

study

recommendations.
During the ad hoc committee's study of the Department of Health and

Environmental Control, on January 11, 2016, the agency was asked if it had any recommendations for improvement of existing laws. One of the agency's

recommendations was to consider limiting the abortions that can be performed in an abortion clinic to those within the first eighteen weeks of pregnancy, beginning with conception rather than calculated on the basis of the menstrual cycle. At its meeting on January 21, 2016, the ad hoc committee approved a motion to seek an opinion from your office as to whether this recommendation

from the agency may conflict with any federal statute or case law.

Rembert C. Dennis Building

• post Office Box 11549 • Columbia, SC 2921 1-1549

• Telephone 803-734-3970

• Facsimile 803-253-6283

The Honorable Gary E. Clary
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February 10, 2016

Law/Analysis
At the outset, we emphasize that we address herein only the question of the facial validity

of any such statute with which your question is concerned.

The standard for facial attack is

summarized by the Fourth Circuit in Greenville Women's Clinic v. Bryant. 222 F.3d 157, 164

(4lh Cir. 2000) as follows:
[b]ecause of the conceptual difficulties that attend the ruling on the constitutionality of a statute in the abstract, the Supreme Court has held that "[a] facial challenge to a legislative Act is, of course, the most difficult challenge to amount successfully, since the challenger must establish that no

set of circumstances exist under which the Act would be valid." United States v. Salerno. 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L. Ed.2d 695 (1987); see

also Rust v. Sullivan. 500 U.S. 173, 183, 111 S.Ct. 1759, 114 L. Ed.2d 233 (1991) (a facial challenge will fail if an act "can be construed in such a manner that [it] can be applied to a set of individuals without infringing upon constitutionally protected rights").

In Planned Parenthood v. Casev. 505 U.S. 833, 112 S.Ct. 2791, 120 L. Ed.2d 674 (1992), the Supreme Court ruled that a statute regulating abortion was

invalid because "in a large fraction of cases in which [it] is relevant, it will operate as a substantial obstacle to a woman's choice to undergo an abortion. Id. at 895, 112 S.Ct. at 2791 (majority opinion) (emphasis added). Whether this holding displaced the Salerno standard to facial challenges in abortion cases has been the subject of considerable debate among the circuits [citing cases] . . . Previously, this Court had stated its agreement with the Fifth

Circuit position in Barnes v. Moore [970 F.2d 12 (5th Cir. 1992)] observing that until the Supreme Court specifically overrules Salerno in the abortionregulation context, "this Court is bound to apply the Salerno standard as it has been repeatedly applied in the context of other abortion regulations reviewed by the Supreme Court. . . and in the context of other abortion regulations reviewed by the Supreme Court . . . and in the context of challenges to legislative acts based on other constitutional grounds." Manning v. Hunt 1 19

F.3d 254, 268, n. 4 (4th Cir. 1997) (emphasis added).
Despite this uncertainty, the Fourth Circuit nevertheless concluded that under either the Salerno or Casev standard, the DHEC Regulation at issue (61-12) was facially valid. The Court noted:
[e]ven when we apply a less deferential standard than that articulated in Salerno, we nevertheless conclude in this case that the record provides no evidence from which to conclude that Regulation 61-12 would present a "substantial obstacle" to "a large fraction" of women in South Carolina who

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February 10, 2016

might seek an abortion at a clinic subject to Regulation 61-12.

Casey, 505

U.S. at 895, 1 12 S.Ct. at 2791 (majority opinion).
Id.
Having set forth the standard for facial constitutionality, we now turn to your question regarding the constitutional validity of a statute such as you describe.

The starting point,

obviously, is the seminal decision of Roe v. Wade. 410 U.S. 113 (1973).

There, the Supreme

Court held that "the right of privacy, grounded in the concept of personal liberty guaranteed by the Constitution, encompasses a woman's right to decide whether to terminate her pregnancy." City of Akron v. Akron Center for Reproductive Health. Inc.. 482 U.S. 416, 419 (1983). "Roe established a trimester framework to govern abortion regulation.

Under the elaborate but rigid

construct, almost no regulation at all is permitted during the first trimester of pregnancy,

regulations designed to protect the woman's health, but not to further the State's interest in

potential life, are permitted during the second trimester, and during the third trimester when the fetus is viable, prohibitions are permitted, provided the life or health of the mother is not at stake." Planned Parenthood v. Casev. 505 U.S. 833, 872 (1992). The requirement for abortions to be performed in an acute care, general hospital was addressed by the Supreme Court in Citv of Akron, supra. There, the Court reaffirmed Roe in the context of an Akron Ordinance which required that all second trimester abortions must be performed in a hospital. The Court recounted its previous Roe opinion as follows:
[i]n Roe v. Wade the Court held that after the end of the first trimester of pregnancy the State's interest becomes compelling, and it may "regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health." 410 U.S. at 163, 93 S.Ct. at

73 1 . We noted, for example, that States could establish requirements relating "to the facility in which the procedure is to be performed, that is, whether it

must be in a hospital or may be a clinic or some other place of less-thenhospital status." Ibid. In the companion case of Doe v. Bolton the Court

invalidated a Georgia requirement that all abortions be performed in a hospital licensed by the State Board of Health and accredited by the Joint Accreditation of Hospitals.

See 410 U.S. at 201, 93 S.Ct. at 752.

We

recognized the State's legitimate health interest in establishing for secondtrimester abortions, "standards for licensing all facilities where abortions may be performed." Id- at 195, 93 S.Ct. at 749. We found, however, that "the State must show more than [was shown in Doe] in order to prove that only the full resources of a licensed hospital, rather than some other appropriately licensed institution, satisfy those health interests. Ibid. . . . In reaffirming Roe and Doe, the Akron Court noted that while "a State's interest in health regulation becomes compelling at approximately the end of the first trimester," the "State's

regulation may be upheld only if it is reasonably designed to further that State's interest." 482

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U.S. at 434.

The Court stated that

. . if it appears that during a substantial portion of the

second trimester the State's regulation depart[s] from accepted medical practice," the regulation

"may not be upheld simply because it may be reasonable for the remaining portion of the trimester." Id Based upon this reasoning, the Court struck down the Akron Ordinance at issue, concluding as follows:

[t]here can be no doubt that § 1 870.03 's second-trimester hospitalization

requirement places a significant obstacle in the path of women seeking an A primary burden created by the requirement is additional cost to

abortion.

the woman.

The Court of Appeals noted that there was testimony that a

second-trimester abortion costs more than twice as much in a hospital as in a clinic. . . . Moreover, the Court indicated that second-trimester abortions were rarely

performed in

Akron

hospitals.

.

.

.

Thus,

a

second-trimester

hospitalization requirement may force women to travel to find available

facilities, resulting in both financial expense and additional health risk. It therefore is apparent that a second-trimester hospitalization requirement may significantly limit a woman's ability to obtain an abortion. Id. at 435. The Court in Akron found that medical practice had advanced considerably since Roe According to the Court, the American Congress of Obstetricians and was decided.

Gynecologists (ACOG) no longer suggested that all second-trimester abortions be performed in a hospital. ACOG recommended instead that abortions performed in a physician's office or outpatient clinic be limited to 14 weeks of pregnancy, but indicated that abortions may be performed safely in "a hospital-based, or in a free-standing ambulatory surgical facility, or in an out-patient clinic meeting the criteria required for a free-standing surgical facility," until 18 weeks of pregnancy 462 U.S. at 437 (emphasis added).

Justices O'Connor, White and Rehnquist dissented from the Court's opinion in Akron. The three dissenters deemed Roe's trimester analysis to be unworkable, believing instead that the appropriate test for State regulation was not "the point at which these interests become compelling," but whether the regulation imposes an "'unduly burdensome interference with 'the
[woman's] . . . freedom to decide whether to terminate her pregnancy.'" 482 U.S. at 461. In applying the "undue burden" test, the dissent noted that a court must be cognizant of the Legislature's resolution of the issue. According to the dissent, such a standard
. . . does not mean that in determining whether a regulation imposes an "undue burden" on the Roe right that we defer to the judgment made by state legislatures. "The point is, rather, that when we face a complex problem with many hard questions and few easy answers we do well to pay careful attention to how the other branches of Government have addressed the same problem." Columbia Broadcasting System. Inc. v. Democratic National Committee. 412 U.S. 94, 103, 93 S.Ct. 2080, 2087, 36 L.Ed.2d 772 (1973). . . .

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The Akron Ordinance's hospitalization requirement, in the view of the dissent, was thus valid when considered pursuant to this "undue burden" standard. The dissent explained its analysis as follows:
[f]or the reasons stated above, I find no justification for the trimester approach used by the Court to analyze this restriction.

I would apply the "unduly

burdensome" test and find that the hospitalization requirement does not impose an undue burden on that decision. The Court's reliance on increased abortion costs and decreased availability is misplaced. As the City of Akron points out, there is no evidence in this case to show that the two Akron hospitals that performed second-trimester abortions denied an abortion to any woman, or that they would not permit abortion by the D&E procedure. See City of Akron Reply Br. In No. 81-748, at 3.

In addition, there was no

evidence presented that other hospitals in nearby areas did not provide second-trimester abortions. Further, almost any state regulation, including that the licensing requirements that the Court would allow . . . inevitably and necessarily increased costs for any abortion.

In Simopoulos v. Virginia. 482

U.S. 506, 103 S.Ct. 2532, 75 L.Ed.2d

, the Court upholds the State's

stringent licensing requirements that will clearly involve greater cost because the State's licensing scheme "is not an unreasonable means of furthering the State's compelling interest in" preserving maternal health. Id- at 2540. Although the court acknowledges this indisputably correct notion in Simopoulos. it inexplicably refuses to apply it in this case. A health regulation, such as the hospitalization requirement, simply does not rise to the level of "official interference" with the abortion decision. See Harris fv. McRae. 448 U.S. 297] at 328, 100 S.Ct. at 2894 (White J., concurring).

Health-related factors that may legitimately be considered by the State go well beyond what various medical organizations have to say about the physical safety of a particular procedure. Indeed, "all factors - physical, emotional, psychological, familial and the woman's age - [are] relevant to the well-being of the patient." Doe v. Bolton. 410 U.S. 179, 192, 93 S.Ct. 201 (1973). The ACOG standards, upon which the Court relies, state that "[r]egardless of advances in abortion technology, mid-trimester terminations will likely remain more hazardous, expensive, and emotionally disturbing for a woman then early abortions." American College of Obstetricians and Gynecologists, Technical Bulletin No. 56, Methods of Mid-Trimester Abortions (Dec. 1979). The hospitalization requirement does not impose an undue burden, and it is not necessary to apply an exacting standard of review. Further, the regulation has a "rational relation" to a valid state objective of ensuring the health and welfare of its citizens. See Williamson v. Lee Optical Co.. 348 U.S. 483, 491, 75 S.Ct. 481, 466, 99 L.E.2d 563 (1955). . . .

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462 U.S. at 467 (O'Connor, White and Rehnquist, JJ. dissenting).

The same reasoning as that of the majority in Akron, finding the Akron ordinance invalid,

has been used in other cases as well. See Planned Parenthood Assn. of Kansas City v. Ashcroft. 462 U.S. 476 (1983) [requirement that abortions after twelve weeks of pregnancy be performed

in hospitals is unconstitutional]; Simopoulos. supra: Planned Parenthood v. Janklow. 216 F.

Supp.2d 983 (D. South Dakota 2002), rev. on other grounds, sub. nom., Planned Parenthood of

Minn./S.D. v Rounds. 372 F.3d 969 (8th Cir. 2004). [statute requiring that abortions performed following the

12th week of pregnancy be performed in a hospital is unconstitutional];

McCormack v. Herzog. 788 F.3d 1017 (9th Cir. 2015) [provision requires all second-trimester abortions occur in a hospital, unconstitutional on its face]; McCormack v, Hiedeman. 900 F.Supp.2d 1128 (D. Idaho) [statutes requiring hospitalization for second-trimester abortions impermissibly burdened abortion rights]. In Ashcroft. the Court stated that "at least during the early weeks of the second trimester. [,] D&E abortions may be performed as safely in an outpatient clinic as in a full scale hospital."

103 S.Ct. at 2520 (emphasis added).

And, in

Simopoulos. the Court was careful to distinguish Virginia's requirement from that in Akron. such distinction rested upon the fact that Virginia's requirement was not expressly limited to general hospitals.

The Simopoulos Court thus upheld Virginia's requirement that all second-

trimester abortions be performed in an "outpatient surgical hospital." 462 U.S. at 515.

As the

Supreme Court noted, "[u]nder Virginia's hospitalization requirement, the surgical hospitals may qualify for licensing as 'hospitals' in which second-trimester abortions lawfully may be performed." Id at 516. Moreover, the Court further explained,

[g]iven the plain language of the Virginia regulations and the history of their adoption . . ., we see no reason to doubt that an adequately equipped clinic could, upon proper application, obtain an outpatient hospital license permitting the performance of second-trimester abortions. We conclude that Virginia's requirement that second-trimester abortions be performed in licensed clinics is not an unreasonable means of furthering the State's interest in protecting the woman's original health and safety." Roe. 410 U.S. at 150, 93 S.Ct. at 725. . . . 482 U.S. at 518-519.

Planned Parenthood v. Casev. supra, represented a major change in direction by the Supreme Court in its analysis of abortion regulation. While the Court in Casev reaffirmed Roe v. Wade, at the same time, it abandoned its trimester analysis altogether. The plurality opinion, authored by Justice O'Connor, stated: "[w]e reject the trimester framework, which we do not consider to be part of the essential holding of Roe." 505 U.S. at 873. Instead, the Court concluded that, prior to viability of the fetus, the appropriate constitutional analysis was whether

the State's regulation imposed an "undue burden" upon the woman's right to terminate the pregnancy. According to the Court, "[a] finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the

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path of a woman seeking an abortion of a viable fetus." Id at 874.

If a law does not constitute

such an "undue burden," it is constitutional, if reasonably related to a legitimate state interest. Id at 877.

The Casey plurality emphasized that "the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child."

505 U.S. at 846.

Moreover, "[a]s with any medical procedure, the State may enact

regulations to further the health or safety of a woman seeking an abortion. Unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right." Id. at 878. Casey's analysis is quite consistent with Justice O'Connor's earlier dissenting opinion in Akron. The Supreme Court has reaffirmed on several occasions since Casey that the "undue burden" analysis is the correct one. See Mazurek v. Armstrong. 520 U.S. 968 (1997) (per curiam) [reversing an injunction of Montana's requirement that only physicians may perform abortions, rejecting the argument that invalid purpose was proven by lack of medical evidence]; Stenberg v. Carhart. 530 U.S. 914 (2000) [striking down Nebraska's ban on partial birth abortion]; Gonzales v. Carhart. 550 U.S. 124 (2007) [upholding as facially constitutional the Partial Birth Abortion Ban Act of 2003]. In

the latter case, the Court recognized that "[w]here it has a rational basis to act, and it does not impose an undue burden, the State may use its regulatory power to bar certain procedures and substitute others." 550 U.S. at 158. Courts and legal commentators have recognized the significant impact of Casey upon abortion regulation, particularly with respect to a hospitalization requirement. For example, the

Fourth Circuit, in Greenville Women's Clinic v. Bryant. 222 F.3d 157 (4th Cir. 2000), upheld as facially valid a DHEC regulation concerning abortion clinics in South Carolina.

The Fourth

Circuit, relying upon Casey, stated:

. . . State regulations that do not "reach into the heart" of the protected liberty do not violate the abortion-decision right. Casey, 505 U.S. at 874, 112 S.Ct. 2791 (joint opinion of O'Connor, Kennedy, and Souter, JJ.). If a regulation serves a valid purpose - "one not designed to strike at the right itself' - the fact that it also has "the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate it." Id. One such valid purpose is a State's effort to "further the health or safety of a woman seeking an abortion." Id- at 878, 1 12 S.Ct. at 2791. Of course, if such health regulations are unnecessary and have the "purpose or effect of presenting a substantial obstacle to a woman seeking an abortion," they will be found to "impose an undue burden on the right." Id. The DHEC Regulation at issue, and which was upheld by the Fourth Circuit, requires in part that "[a]bortions beyond 18 weeks . . . must be performed in a hospital, although a licensed ambulatory, surgical center that is also licensed as an abortion clinic may perform abortions on

patients up to 26 weeks. . . .

See S.C. Code Regs. 61-12, Section 302."

Greenville Women's

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Clinic v. Brvant. 66 F. Supp.2d 691, 707-708 n. 8 (D.S.C. 1999). While this particular portion of the DHEC Regulation was not at issue in the Fourth Circuit decision, it is important to note that the Court upheld the entire Regulation as facially valid and that this particular part of the

Regulation was not scrutinized by the Court as causing any particular constitutional concern. Moreover, based upon Casey, the Supreme Court of Oklahoma has upheld a statutory

requirement that abortions performed "[fjrom the end of the first trimester until the fetus becomes viable" must be performed in general hospitals. In Davis, the Court recounted the various Supreme Court decisions dealing with a requirement of hospitalization including Doe v. Bolton, supra. Citv of Akron, supra. Planned Parenthood Assn. of Kansas City v. Ashcroft. supra and Simopoulos. supra. See Davis v. Fieker. 952 P.2d 505 (Okl. 1997). The Oklahoma Supreme

Court rejected any argument that Akron still controlled.

That Court instead followed Casey,

explaining as follows:

[W]e must then look to the record before us as the source of information to

determine whether the evidence shows that restricting abortions performed during the first trimester to hospitals, including clinics and offices, and

restricting abortions performed during the second trimester before viability to general hospitals places an undue burden on a woman's right to seek an abortion during these periods of her pregnancy. ... An increase in cost, the risk of delay, a limit on the physician's discretion, and particularly burdensome effects do not necessarily place an undue burden on the right to have an abortion. . . . These effects must amount to substantial obstacles before the restrictions will be invalidated. . . .

The evidence in this case is insufficient to show that the restrictions place an undue burden on a woman's right to an abortion. In striking down a spousal notification requirement in Casev. the Court relied on evidence that the requirement would allow "the husband to wield an effective veto over his wife's decision."
. . .
There is no evidence in the present case that
Oklahoma's location restriction on an abortion place a substantial obstacle on the right to have an abortion. . . . In Casev. the United States Supreme Court upheld an informed consent requirement based on the lack of evidence in the record that "the requirement would amount in practical terms to a substantial obstacle to a woman seeking an abortion." . . . The Court also noted: "While at some point increased cost could become a substantial obstacle, there is no showing on the present record before us. . . . The defendants in the present case have not presented any evidence that Oklahoma's restrictions will amount to a substantial obstacle to a women seeking an abortion. While at some point the negative impact of Sections 1-731 and 1-737 may become a substantial obstacle, there is no evidence of such on the record before the Court.

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The defendants urge that the decision in Akron controls the present case. The Casey decision addressed some of the issues raised in Akron and explicitly overruled parts of the Akron decision although it did not address the

requirement that second-trimester abortions be performed in hospitals.

The

United States Supreme Court in Casey rejected the rigid standard of review endorsed in Roe and on which the Akron decision was based. After a review of the Casey decision and subsequent decisions, we disagree that Akron

retains its validity. For these reasons, the Casey decision, not the decision in Akron, controls the present case. 952 P.2d at 515-516.

A Tennessee case, Planned Parenthood v. Sundquist. 38 S.W.3d (Tenn. 2000), reached a conclusion opposite from that of Davis. In Sundquist. the Supreme Court of Tennessee concluded that Tennessee's hospitalization requirement made applicable to all second semester abortions was unconstitutional. The Sundquist Court reasoned as follows:
[although the State has a compelling interest in maternal health from the

beginning of pregnancy, ... the second trimester hospitalization requirement is not narrowly tailored to further the State interest. Substantial evidence was introduced at trial to indicate that abortions can be performed safely outside the hospital setting through at least the first eighteen weeks of pregnancy. American College of Obstetricians and Gynecologists, Standards for

Obstetrics-Gynecologist Services (7th ed. 1989). As observed by the Court of Appeals, a general agreement exists within the medical community that abortions can be performed safely in physicians' offices and outpatient clinics through the fourteenth week of pregnancy and, further, that physicians agree that abortions through the eighteenth week of pregnancy may be performed safely in free-standing surgical facilities. As noted by the trial court, the evidence is clear that second-trimester abortions are performed in the Nashville community in '"ambulatory surgical centers'" which have resulted from advanced medical technology and care, and are also the product of an attempt to lower costs to patients."

The State may, of course, adopt standards for licensing facilities where second trimester abortions may be performed such as requiring facilities to be properly equipped and staffed. See e.g. American College of Obstetricians and Gynecologists, Standards for Obstetric-Gynecologic Services (setting forth suggested qualification standards). However, the State may not simply

prohibit all second trimester abortions that are not performed in a hospital. Such a regulation is not narrowly tailored to promote maternal health. Moreover, in light of the complete absence of a medical emergency exception to the hospitalization requirement, the provision is constitutionally infirm even

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under the federal undue burden standard. Casev. 505 U.S. at 879, 1 12 S.Ct. at 2821 ("[T]he State . . . may, if it chooses, proscribe abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother," (quoting Roe. 410 U.S. at 164-65, 93 S.Ct. at 732)

(emphasis added).
Accordingly, we conclude that the second trimester
hospitalization requirement "place[s] a substantial obstacle on in the path of a woman seeking an abortion." Id at 878, 1 12 S.Ct. at 2821. 38 S.W.2d at 18-19.

The relevant DHEC Regulation, which is R 61-12, Section 302, remains the same as that when the Fourth Circuit decided Greenville Women's Clinic. Such Regulation states in pertinent part, as follows:

A. Abortions performed in abortion clinics shall be performed only on

patients who are within 18 weeks from the first day of their last menstrual period. Those beyond eighteen weeks shall be performed in a hospital. A licensed ambulatory surgical facility that is also licensed as an abortion clinic may perform abortions on patients who are up to 26 weeks after the first day of their last menstrual period.

The Court, in Greenville Women's Clinic, further noted that:
[p]regnancy is measured either from the date of a woman's Imp (last menstrual period) or from conception, which is generally considered to occur two weeks after a woman's Imp. Accordingly, eight weeks after the Imp is equivalent to six weeks from the date of conception. Under Regulation 61-12,

the first trimester of pregnancy ends at fourteen weeks after the Imp. See S.C. Code Ann. Regs 61-12, § 103(5). Based upon Simopoulos. Casey, and Greenville Women's Clinic, the foregoing portion of DHEC Regulation 61-12 is unquestionably constitutional. Moreover, Casev and other decisions, discussed above, make it likely that a court would conclude that a statute which requires all abortions performed more than eighteen weeks from the date of conception is facially constitutional. We believe that application of the "undue burden" standard, recognized by Casev. would lead to the conclusion that such a statute does not impose an undue burden and is, moreover, rationally related to a legitimate state purpose - the protection of the woman's health.

Such a conclusion is consistent also with the Akron decision

which held that abortions could be performed "'in a hospital-based or in a free-standing ambulatory surgical facility, or in an out-patient clinic meeting the criteria required for a free standing surgical facility' until eighteen weeks of pregnancy," 462 U.S. at 437.

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Use of the benchmark of eighteen weeks from the date of conception (or 20 weeks from Imp) has a strong basis with respect to protecting the health of the mother.

As the Court

recognized in Planned Parenthood of Wisconsin v. Dovle. 162 F.3d 463, 466 (7th Cir. 1999), an abortion at 20 weeks and beyond defines a "late-term abortion."

It is well recognized that

"[approximately 99 percent of the abortions terminate pregnancies that are no later than 20 weeks LMP (no later than 18 weeks from fertilization."

Comprehensive Health of Planned

Parenthood of Kansas and Mid-Missouri. Inc. v. Templeton. 954 F. Supp.2d 1205, 1213 (D. Kan. 2013).

Moreover, in the District Court decision in Planned Parenthood v. Casev. 744 F.Supp.

1323, 1352 (E.D. Pa. 1990), the Court stated: "[a] substantial increase in the risk of death from an abortion procedure occurs when the pregnancy moves from the earlier stages of the second

trimester to the middle portion of the second trimester (16 to 20 weeks of gestation)."

More

specifically, it has been estimated that:
. . . the risk of death form abortion increases about thirty percent (30%) with each week of gestation from eight weeks Imp to twenty weeks Imp. Dr. Westhoff adds that the risk of major medical complications increases about twenty percent (20%) with each week of gestation from seven weeks to full term.

Planned Parenthood v. Vernicro. 41 F. Supp.2d 478, 483, n. 1 (D.N.J. 1998).

As the Court in

Vernicro summarized, "[t]he risk of death form abortion . . . increase[s] as the pregnancy

progresses." Id- at 483. While a fetus is generally not viable at 18 weeks from conception, (or 20 weeks from Imp or gestation), the Supreme Court upheld as consistent with Roe v. Wade. supra, the testing for viability at a gestational age of 20 weeks. See Webster v. Reproductive Health Services. 49 U.S. 490 (1989). Thus, it is quite logical and reasonable to use this 18 weeks from conception or 20 weeks from Imp as a benchmark to require hospitalization. Conclusion

Your question relates to the constitutionality of the requirement that all abortions performed after eighteen weeks from the date of conception must be performed in a hospital. As noted above, dating any such restrictions from the date of conception rather than the last menstrual period (Imp) would add an extra two weeks, thereby meaning that the restrictions contemplated would be twenty weeks from the Imp. In either event, we believe such a regulation is facially constitutional under Casev. supra, as reasonably related to the preservation of the woman's health.

More specifically, we believe a court would likely find, as the Oklahoma Supreme Court

did in Davis, supra, that Casey's "undue burden" analysis would now lead to the conclusion that all second-trimester abortions may be constitutionally required to be performed in a hospital. Justice O'Connor, who wrote a powerful dissent in Akron, would have concluded that such a restriction was constitutional under the "undue burden" standard. Importantly, Justice O'Connor also authored the plurality opinion in Casev. which adopted that same standard. As one legal

The Honorable Gary E. Clary
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February 10, 2016

commentator has observed, "[although Citv of Akron made clear that any state law mandating

second-trimester abortions occur in hospitals would not be upheld under Roe, it is not clear whether the same would be true under Casey."

Ettinger, "Seeking Common Ground in the

Abortion Regulation Debate," 90 Notre Dame L. Rev. 875. 886 (2014).

As the Supreme Court

of Oklahoma, in upholding a provision requiring all second-trimester abortions be performed in a general hospital, concluded:

[t]he United States Supreme Court in Casey, rejected the rigid standard of review endorsed in Roe and on which the Akron decision was based. After a review of the Casev decision and subsequent decisions, we disagree that Akron retains its validity. For these reasons, the Casey decision, not the decision in Akron, controls the present case.

We agree with the Oklahoma Supreme Court's reasoning in Davis. While we discuss other decisions, which have reached a different conclusion from the Court in Davis, we believe a court is likely, based upon Casev. to uphold facially any requirement that all second-trimester abortions must be performed in a hospital.

However, based upon your specific question, we need not go so far in our conclusions Your Committee seeks only to require hospitalization for abortions performed after here. eighteen weeks from conception (or about 20 weeks from Imp). It is our opinion that a court would likely conclude that such a requirement is valid under Casev.

First of all, as discussed above, medical data strongly supports a 20 week restriction (18 weeks after Imp). As one authority has written,

[ajbortions performed in the second or third trimester are rare; only one half of 1% take place past 20 weeks, and 0.01% take place after 24 weeks. Such abortions require more difficult procedures involving an increased risk of complications, and so are more often performed in hospitals. Dilation (also called dilatation) and Evacuation (D & E) is the method most commonly used in second-trimester abortions.

Miller, "Medical and Psychological Consequences of Legal Abortion in the United States," in Evaluating Women's Health Messages: A Resource Book, at 20. Thus, based upon this data, pursuant to the Casev "undue burden" standard, such a hospitalization requirement late in the second trimester of pregnancy (18 weeks from conception or 20 weeks from Imp) is reasonably related to the preservation of the woman's health. Further, even Akron acknowledged that abortions "may be performed safely in 'a

hospital-based or in a free-standing ambulatory surgical facility, or in an out-patient clinic meeting the criteria required for a free-standing surgical facility,' until 18 weeks of pregnancy."

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February 10, 2016

462 U.S. at 437. (emphasis added).

This eighteen week point (from Imp) appears, according to

the Supreme Court, to be the medically safe outer limit for second-trimester abortions outside the

hospital setting.

As the Court stated in Planned Parenthood of Middle Tennessee v. Sundquist.

38 S.W. 3d 1, 18 (Tenn. 2000),

. . Planned Parenthood points to evidence that second trimester

abortions are safe outside the hospital setting up to eighteen weeks of pregnancy.. . added).

(emphasis

Beyond 18 weeks, however, the Legislature could constitutionally conclude that the

health of the mother becomes jeopardized except in a hospital. Moreover, the analysis in Justice O'Connor's dissenting opinion in Akron should be

dispositive here. There, Justice O'Connor wrote:

[t]he ACOG standards, upon which the Court rules, state that "[rjegardless of advances in abortion technology, midtrimester terminations will likely remain more hazardous, expensive, and emotionally disturbing for a woman than early abortions."

American

College of Obstetricians and

Gynecologists,

Technical Bulletin No. 56: Methods of Midtrimester Abortion (Dec. 1979). The hospitalization requirement does not impose an undue burden, and it is not necessary to apply an exacting standard of review. Further, the regulation has a "rational relation" to a valid state objective of ensuring the health and welfare of its citizens. See Williamson v. Lee Optical Co.. 348 U.S. 483, 491, 75 S.Ct. 461, 466, 99 L. Ed. 563 (1955). . . . 462 U.S. at 467.

Justice O'Connor's views were essentially the basis of the Court's

opinion in Casey.
Based upon the foregoing, it is our opinion that a court would likely conclude that a

statutory provision which requires all abortions performed after eighteen weeks from conception (or 20 weeks Imp) would not impose an undue burden upon the woman's right to terminate her pregnancy.

Casey and other decisions make clear that "[a]n increase in cost, the risk of delay, a

limit on the physician's discretion, and particularly burdensome effects do not necessarily place an undue burden on the right to have an abortion."

Davis, 952 P. 2d at 515.

Medical data

concerning the risks to the woman at this stage of the pregnancy support this conclusion. Thus, such a statute would be facially valid, as reasonably related to a legitimate state purpose - that of preserving the woman's health. Sincerely,
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Robert D. Cook

Solicitor General

C'