GREENVILLE WOMEN'S v. COMMISSIONER

NIEMEYER, Circuit Judge:

This appeal continues our review of the facial constitutional challenges made by abortion clinics in South Carolina to Regulation 61-12 of the South Carolina Department of Health and Environmental Control, establishing standards for licensing abortion clinics. In Greenville Women's Clinic v. Bryant, 222 F.3d 157 (4th Cir. 2000), cert. denied, 531 U.S. 1191, 121 S.Ct. 1188, 149 L.Ed.2d 105 (2001) (" Bryant I"), we held (1) that Regulation 61-12 did not place an undue burden on a woman's decision whether to seek an abortion in violation of the liberty interest protected by the Due Process Clause and (2) that the regulation did not distinguish unreasonably between clinics that performed a specified number of abortions and those that did not in violation of the Equal Protection Clause.

On remand, the district court addressed the remaining challenges made to Regulation 61-12, rejecting the abortion clinics' contentions that the regulation unconstitutionally delegates licensing authority to nongovernmental third parties without standards; that it violates the Establishment Clause of the First Amendment; and that it is void for vagueness. The district court did, however, conclude that § 102(F) of the regulation, which provides South Carolina inspectors access to records of abortion clinic patients, infringes on a constitutional right to informational privacy insofar as it authorizes the disclosure of patients' names to State inspectors.

On the cross-appeals of the parties, we reject all of the remaining constitutional challenges to Regulation 61-12 and accordingly affirm in part and reverse in part.

I

As authorized in §§ 44-41-10 et seq. and 44-7-110 et seq. of the Code of Laws of South Carolina, the South Carolina Department of Health and Environmental Control ("DHEC") promulgated Regulation 61-12, entitled "Standards for Licensing Abortion Clinics." Because Regulation 61-12, which comprehensively regulates abortion clinics in South Carolina, was summarized more fully in Bryant I, 222 F.3d at 160-62, we only briefly summarize its ten chapters here:

Chapter 1, entitled "Definitions and Requirements for Licensure," includes definitions of relevant terms and sets forth the general requirement that abortion clinics in South Carolina be licensed and subject to inspections. A regulated abortion clinic is defined as "[a]ny facility, other than a hospital as defined in Section 101.J, in which any second trimester or five or more first trimester abortions per month are performed." DHEC Reg. 61-12, § 101(B). Any facility in violation of the regulation may be subjected to civil penalties, including suspension or revocation of its license or a monetary fine. Id. § 103.

Chapter 2, entitled "Administration and Management," describes operational policies and procedures, as well as personnel requirements. It also includes a summary of the patients' rights. Id. § 209.

Chapter 3, entitled "Patient Care," prescribes minimum procedures required in the treatment of all patients and a limitation of the procedures that may be provided at the facility. The chapter includes admissions criteria, staff responsibilities, and details regarding abortion procedure and follow-up care. Id. § 301. Also included within this chapter are certain facility requirements, such as pharmaceutical capabilities and laboratories. Id. §§ 303, 304. There is a specification of minimum equipment and supplies, id. § 306, and a requirement that clinics implement an ongoing plan for improvement of patient care, id. § 308. The chapter further specifies that for purposes of emergency care, staff or consulting physicians shall have admitting privileges at a local hospital that has appropriate obstetrical and gynecological services. Id. § 305. Finally, the chapter requires that abortion clinics make arrangements for consultation or referral services "in the specialties of obstetrics/gynecology, anesthesiology, surgery, psychiatry, psychology, clinical pathology and pathology, clergy, and social services, as well as any other indicated field, to be available as needed." Id. § 307.

Chapter 4, entitled "Medical Records and Reports," sets forth detailed requirements for the generation of patient records, which must be maintained and stored in a "safe location" for at least ten years. Id. §§ 401, 402. This chapter also requires abortion clinics to report to the appropriate State agency each abortion performed, each "fetal death" when the fetus has developed beyond a certain stage, and each "accident or incident occurring in the facility which involves patients, staff, or visitors." Id. § 403.

Chapter 5, entitled "Functional Safety and Maintenance," deals with safety in clinics' handling of hazardous materials, needles, syringes, and similar materials. Id. § 501. It also requires the maintenance of emergency equipment and a plan for disaster preparedness. Id. §§ 502, 503.

Chapter 6, entitled "Infection Control and Sanitation," describes procedures for maintaining sterilized supplies and equipment, as well as requirements for having clean linen and towels, clean facilities and grounds, and waste disposal.

Chapter 7, entitled "Fire Protection and Prevention," details specific requirements for fire protection and safety, including mandatory fire drills and alarm testing.

Chapter 8, entitled "Design and Construction," sets forth requirements for approval of the design and construction of abortion clinics and includes requirements for specific types of rooms, security, and equipment.

Chapter 9, entitled "Prerequisites for Initial Licensure," includes the requirements for plan and construction approval, the existence of documentation demonstrating licensure, and the necessary facility permits.

Finally, Chapter 10, entitled "General," states in its entirety, "Conditions arising that have not been addressed in these regulations shall be managed in accordance with the best practices as interpreted by the Department."

On June 27, 1996, one day before Regulation 61-12 was to become effective, the plaintiffs — two abortion clinics and a doctor operating abortion clinics — commenced this action on behalf of themselves and their patients to obtain a declaratory judgment that Regulation 61-12 was facially unconstitutional on numerous grounds. The district court agreed with the plaintiffs in part, finding that Regulation 61-12 placed an undue burden on a woman's Fourteenth Amendment due process right to choose whether to seek an abortion and that the regulation violated the Equal Protection Clause of the Fourteenth Amendment by treating abortion clinics differently than other healthcare facilities without a rational basis for doing so. Greenville Women's Clinic v. Bryant, 66 F.Supp.2d 691 (D.S.C. 1999). Because the district court struck down the regulation on two different grounds, it did not decide the plaintiffs' other constitutional challenges.

On appeal, we reversed, holding that Regulation 61-12 did not impose an undue burden on a woman's right to choose whether to seek an abortion and that South Carolina had a rational basis for treating abortion clinics differently from other medical facilities. Bryant I, 222 F.3d at 171-72, 174. We found that Regulation 61-12 serves a valid purpose in safeguarding the health of women and does not aim directly at a woman's right to make the decision to have an abortion. The $23-$75 increased cost per abortion attributable to compliance with Regulation 61-12 was, we held, an incidental effect that, while making abortions modestly more expensive, did not unduly burden a woman's right to make the abortion decision. Id. at 169-72. Because the regulation did not strike at the abortion-decision right itself, we also applied a rational-basis standard to the equal protection analysis and concluded that South Carolina had a rational basis for regulating abortion clinics while not regulating other healthcare facilities. We noted that abortions are "inherently different from other medical procedures, because no other procedure involves the purposeful termination of a potential life." Id. at 174 (quoting Harris v. McRae, 448 U.S. 297, 325, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980) (emphasis omitted)). At bottom, we concluded that "[a] woman in South Carolina who has determined to abort the life of a fetus can do so without significant interference from South Carolina's regulations and be assured thereby of a dignified and safe procedure." Id. at 175.

After the Supreme Court denied the plaintiffs' petition for a writ of certiorari, see 531 U.S. 1191, 121 S.Ct. 1188, 149 L.Ed.2d 105 (2001), we remanded the case to the district court to address the plaintiffs' other constitutional challenges.

On remand, the district court rejected all but one of the plaintiffs' other constitutional challenges, concluding that Regulation 61-12 did not improperly delegate veto power to third parties; that it did not violate the Establishment Clause of the First Amendment; and that it was not unconstitutionally vague. The Court did, however, find that § 102(F)(2) violated patients' right to privacy insofar as it authorized State inspectors access to patients' records in which the patients were identified. Greenville Women's Clinic and William Lynn, M.D. (hereafter, "the abortion clinics") appealed the district court's rulings upholding the constitutionality of Regulation 61-12, and South Carolina cross-appealed the district court's ruling finding § 102(F)(2) in violation of patients' privacy rights.

II

The abortion clinics contend first that Regulation 61-12 provides for the standardless delegation of licensing authority to third persons, in violation of the Due Process Clause. They assert that the regulation makes licensing "contingent upon the cooperation of hospitals, clergy and other third parties, upon whose decisions the regulation imposes no standard or limitation." To support this argument, they rely on Yick Wo v. Hopkins, 118 U.S. 356, 370, 6 S.Ct. 1064, 30 L.Ed. 220 (1886), and Hornsby v. Allen, 326 F.2d 605, 608 (5th Cir. 1964).

Although Regulation 61-12 does not directly grant any veto power to third persons over the issuance of a license, it does require, as a condition of licensure, that clinic doctors maintain certain admitting rights with local hospitals and referral arrangements with other relevant experts. Specifically, Regulation 61-12 requires (1) that each abortion clinic have an agreement with a physician board-certified in obstetrics and gynecology who has admitting privileges at a local hospital to be available during "operating-hours," DHEC Reg. 61-12, § 205(c)(2); (2) that a physician at the clinic have admitting privileges at a local hospital with "obstetrical/gynecological services," id. § 305(A); see also id. § 309(B); and (3) that each abortion clinic make arrangements for referral services "in the specialties of obstetrics/gynecology, anesthesiology, surgery, psychiatry, psychology, clinical pathology and pathology, clergy, and social services, as well as any other indicated field, to be available as needed," id. § 307.

South Carolina argues that these admitting privileges and referral arrangements are necessary for the health and safety of patients. Moreover, it points out that these requirements are consistent with existing standards of the American College of Obstetricians and Gynecologists, as stated in its "Standards for Obstetric-Gynecologic Services" (7th ed. 1995), and of the National Abortion Federation, as stated in its "Standards for Abortion Care" (1988). It also denies that the regulation gives any of the third party specialists a veto power over licensure of abortion clinics and notes that, in practice, the abortion clinics' fears about being denied a license or losing their license because of any inability to establish such arrangements are not supported by the record. Indeed, both Greenville Women's Clinic and Dr. Lynn, the appellants in this case, are already licensed in South Carolina to perform abortions, and both have admitting privileges or arrangements with physicians who have admitting privileges at local hospitals with obstetrical and gynecological services. This evidence, South Carolina argues, is "fatal" to the abortion clinics' position.

We begin by emphasizing, as we did in Bryant I, that the challenge to Regulation 61-12 is a facial one and therefore "the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid." United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). To show the necessary respect to legislative departments, particularly in light of Article III's limitation of judicial power to cases and controversies, we require evidence — as opposed to speculation — sufficient to rebut the regulation's presumptive constitutionality. Yet, in this record, we find only speculation.

There is nothing in the record or, indeed, in the general experience in South Carolina that suggests that the requirements to have admitting arrangements with local hospitals and referral arrangements with local experts in various related fields present a substantial impediment to obtaining or retaining a license. To the contrary, the appellants in this case have obtained licenses and have made such arrangements. The abortion clinics' asserted fears are further undermined by South Carolina's requirement that public hospitals not act unreasonably, arbitrarily, capriciously, or discriminatorily in granting or denying admitting privileges. See, e.g., In re Zaman, 285 S.C. 345, 329 S.E.2d 436, 437 (1985); cf. Huellmantel v. Greenville Hosp. Sys., 303 S.C. 549, 402 S.E.2d 489, 491 (App. 1991) (stating that a physician's interest in being reappointed to a public hospital staff is protected by procedural and substantive due process requirements of the Fourteenth Amendment). The required referral arrangements present even lower practical barriers. Indeed, they are required to be made only "as needed." See DHEC Reg. 61-12, § 307.

These requirements of having admitting privileges at local hospitals and referral arrangements with local experts are so obviously beneficial to patients, see, e.g., Women's Health Ctr. of West County, Inc. v. Webster, 871 F.2d 1377, 1382 (8th Cir. 1989), and the possibility that the requirements will amount to a third-party veto power is so remote that, on a facial challenge, we cannot conclude that the statute denies the abortion clinics due process. See Whalen v. Roe, 429 U.S. 589, 601-02, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977) (noting that, on a facial challenge of a statute, a "remote possibility" is "not a sufficient reason for invalidating" a statute); see also Webster, 871 F.2d at 1382 (rejecting due process challenge to a statute requiring physicians performing abortions to have surgical privileges at a hospital). This conclusion is further reinforced by the right given by Regulation 61-12, § 102(L), for clinics to seek a waiver or exception.

Accordingly, we reject the abortion clinics' due process challenge to Regulation 61-12 based on the regulation's requirement that abortion clinics have admitting privileges to local hospitals and referral arrangements with relevant experts.

III

The abortion clinics also contend that § 307 of Regulation 61-12 is a State-sponsored "law respecting an establishment of religion," as prohibited by the First and Fourteenth Amendments. Section 307 provides in relevant part:

Arrangements shall be made for consultation or referral services in the specialties of . . . clergy . . ., to be available as needed.

The abortion clinics contend that this section requires that the clinics "establish formal, ongoing relationships with clergy persons who will be available to provide counseling services to their patients upon referral." And they argue that "[u]nder the provision, [the abortion clinics] must assess their patients' need for religious counseling and make referrals to such counseling as part of their practice of medicine. To enforce the regulation, DHEC must assess the adequacy of [the abortion clinics'] criteria and mechanisms for making such referrals." Relying on this reading of § 307, the abortion clinics maintain that the regulation violates the Establishment Clause of the First Amendment because (1) it coerces participation in religion; (2) it improperly entangles the State in religion; and (3) it creates "a symbolic union between church and state."

We conclude, however, that the abortion clinics' argument is grounded on a substantial misreading of § 307, imputing obligations and relationships that are not prescribed by the regulation. Section 307 does not require abortion clinics to become involved in religion, or to counsel their patients in religion, or to make any religious judgments. Rather, they are required only to have "arrangements" for referring patients to clergy "as needed." These arrangements might amount to no more than a list of clergy and other specialists or a readily accessible telephone book to consult as required by the needs of a particular patient. Since the need for a referral cannot be known until the patient requests a referral, the "arrangement" cannot be made until then. And even then it need not involve more than a communication to a clergy member expressing the patient's request and perhaps setting up a consultation time.

The requirements of § 307 simply cannot be construed to "force physicians to participate in religion," or to "assess patients' needs for religious counseling," or to "force physicians to support religion" — as the abortion clinics in this case argue. Moreover, the language of the regulation does not support the abortion clinics' contention that the DHEC may evaluate whether abortion clinics have established an adequate system, adequate number, or adequate variety of clergy to whom referrals might be made. Finally, § 307 does not grant the religious community any veto power over the clinic's licensing application "thus creating a symbolic union between church and state." Because the section calls for arrangements "as needed," a clinic need not assist the patient by making a referral to clergy unless the patient so requests.

Rather than establishing religion, this section would appear at most to require a clinic to accommodate the requests of patients to exercise religion, a right also protected by the First Amendment. See U.S. Const. amend. I (forbidding any law that "prohibits the free exercise" of religion). Particularly because of the gravity of a woman's right to make the abortion decision, the regulation recognizes the patient's potential desire to consult clergy in making that decision. As the Supreme Court observed in Planned Parenthood of S.E. Penn. v. Casey, "the abortion decision . . . is more than a philosophic exercise. Abortion is a unique act [that is] fraught with consequences." 505 U.S. 833, 852, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). And similarly, we observed in Bryant I:

As humankind is the most gifted of living creatures and the mystery of human procreation remains one of life's most awesome events, so it follows that the deliberate interference with the process of human birth provokes unanswerable questions, unpredictable emotions, and unintended social and, often, personal consequences beyond simply the medical ones.

222 F.3d at 175.

Accordingly, we conclude that the requirement imposed by § 307 on abortion clinics to make arrangements for referral services to clergy, as needed, does not, on its face, establish religion in violation of the First Amendment. Cf. Brown v. Gilmore, 258 F.3d 265 (4th Cir. 2001) (holding that a State statute requiring a moment of silence to enable students to meditate, pray, or engage in any other silent activity does not establish religion in violation of the First Amendment), cert. denied, 534 U.S. 996, 122 S.Ct. 465, 151 L.Ed.2d 382 (2001). In so concluding, we note that this facial challenge cannot encompass every way in which the DHEC might require a clinic to comply with § 307. Specific instances of enforcement may, of course, still be challenged on a case-by-case basis as they occur.

IV

Finally, the abortion clinics contend that Regulation 61-12 is void for vagueness, in violation of the Due Process Clause. They contend that the regulation contains a number of requirements that employ "open-ended" terms lacking any fixed meaning, such as "best practice" or "case-by-case" basis. They maintain that the regulation uses ambiguous adjectives, such as "intensive job-related training," which qualifies a non-physician for work at a clinic. They assert that the regulation contains misnomers, giving as an example that the facilities must be kept "neat, clean and free from odors" and noting that because every medical office has odors, the regulation cannot mean what it says. Finally, they point to inherently ambiguous requirements such as the requirement that "all staff and/or consulting physicians shall have admitting privileges at one or more local hospitals." The abortion clinics have identified the following list of provisions that they challenge, and they suggest that this list is not exhaustive:

1. Section 102(J), which prohibits using an abortion facility name that is similar to the name of another such facility, but does not define how "similarity" will be determined.

2. Section 102(L), which allows DHEC to make exceptions to Regulation 61-12 "where it is determined that the health and welfare of the community require the services of the facility."

3. Section 103(F), which gives DHEC discretion with respect to a particular violation to impose any penalty within the range of possible penalties.

4. Section 201(B), which requires abortion providers to create, and DHEC to assess, policies and procedures on such matters as "patient rights" and "functional safety."

5. Section 204, which requires that staff be "adequately trained and capable of providing appropriate service and supervision to the patients."

6. Section 204(A), which requires that a provider "verify" an employee's "health and personal background."

7. Section 204(D), which prohibits employees and volunteers with "any . . . contagious disease or illness [from working] in any capacity in which there is a likelihood of such person transmitting disease to other individuals."

8. Section 205(C)(1), which requires physicians performing abortions to be "properly qualified by training and experience to perform pregnancy termination procedures."

9. Section 301, which requires the creation of various policies and procedures "designed to ensure professional and safe care for patients."

10. Section 305(A), which requires that "all staff and/or consulting physicians shall have admitting privileges at one or more local hospitals."

11. Section 306, which requires that "appropriate equipment and supplies" be maintained, with no specific requirements.

12. Section 307, which requires among the required consultation services, "any other indicated field, to be available as needed."

13. Sections 308(A) and (C), which require abortion facilities to establish a quality improvement plan that involves "criteria-based" evaluation of patient care.

14. Section 501(A), which requires abortion facilities to promulgate a range of policies and procedures "to enhance safety."

15. Section 602(A), which requires adequate space for sterile supplies and equipment.

16. Section 604, which requires that the facilities "be kept neat, clean and free from odors."

17. Section 606, which requires that "all outside areas . . . shall be kept free of . . . grass . . . that may serve . . . as a haven for insects."

18. Section 807, which requires that an "adequate number of examination/procedure rooms" and an "adequate number of recovery rooms" be provided.

19. Chapter 10, which states in its entirety, that "[c]onditions arising that have not been addressed in these regulations shall be managed in accordance with the best practices as interpreted by the Department."

In sum, the abortion clinics complain that Regulation 61-12 does not provide sufficient specifics to explain what conduct is actually mandated or prohibited.

The district court reviewed the abortion clinics' "litany of phrases which [were] allegedly unconstitutionally vague," and after considering the phrases in their context and taking Regulation 61-12 as a whole, the court concluded that "people of ordinary intelligence would be able to understand what the regulation requires." The court also stated that the regulation "does not encourage arbitrary and discriminatory enforcement. In fact, it appears that the majority of Regulation 61-12 is identical to the American College of Obstetricians and Gynecologists (`ACOG') standards for obstetricians and gynecologists."

"A statute can be impermissibly vague for either of two independent reasons. First, if it fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits. Second, if it authorizes or even encourages arbitrary and discriminatory enforcement." Hill v. Colorado, 530 U.S. 703, 732, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000). But because we are "condemned to the use of words, we can never expect mathematical certainty from our language." Grayned v. City of Rockford, 408 U.S. 104, 110, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). As such, a regulation is not void for vagueness unless it is so unclear with regard to what conduct is prohibited that it "may trap the innocent by not providing fair warning," or it is so standardless that it enables "arbitrary and discriminatory enforcement." Id. at 108, 92 S.Ct. 2294. Furthermore, the degree of clarity required depends on the type of regulation:

Economic regulation is subject to a less strict vagueness test because its subject matter is often more narrow, and because businesses . . . can be expected to consult relevant legislation in advance of action. . . . The Court has also expressed greater tolerance of enactments with civil rather than criminal penalties because the consequences of imprecision are qualitatively less severe.

Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498-99, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982) (footnotes omitted).

Although portions of Regulation 61-12 fall short of mathematical precision, we are satisfied that a reasonable person, reading the regulation in its entirety and in the context of South Carolina statutes, would be able to interpret the regulation and determine what is required and what conduct is prohibited. For example, § 205(C)(1), the violation of which would allow the most serious penalty of the sections identified as vague by the abortion clinics, provides that abortion-clinic physicians be "properly qualified by training and experience to perform pregnancy termination procedures." The abortion clinics argue that they do not understand how physicians need to be qualified to satisfy this provision. Yet, physicians routinely hold themselves out as qualified to practice in given areas based on their training and experience, and such a standard is routinely applied in the medical field to define whether a physician breached the ordinary standard of care or whether a physician is competent to perform a specialized surgery. See, e.g., Hoeffner v. The Citadel, 311 S.C. 361, 429 S.E.2d 190, 192 (1993) (requiring expert testimony to determine defendant doctor's standard of care and breach thereof). In short, physicians have no difficulty in stating that they are qualified by training and experience to practice in a given area or to perform specified procedures. We believe that the other challenged provisions can similarly be followed by reasonably prudent abortion providers who are mindful of their patients' health and safety.

The most unclear provision in Regulation 61-12 may be Chapter 10, which provides that "[c]onditions arising that have not been addressed in these regulations shall be managed in accordance with the best practices as interpreted by the Department." But this provision essentially appears to give the DHEC no power beyond its ability to promulgate further regulations as they become necessary. Moreover, any violation of Chapter 10 could only amount to a "Class III" violation, which would call for nothing more than a warning sanction. Accordingly, we can see no reason to conclude that the imprecision of this particular provision violates the abortion clinics' due process rights.

In addition to concluding that persons of reasonable intelligence would be able to understand what is required of them by Regulation 61-12, we note that the penalties are civil rather than criminal. Regulation 61-12 divides its penalties into three classes, and a Class I offense, the most serious, is subject, on the first offense, to a maximum fine of $1,000. DHEC Reg. 61-12, § 103(F). A Class II offense is subject, on the first offense, to a maximum fine of $500, id., and a Class III offense, on the first offense can lead at most, to a warning, id. Even when a fine is called for, there are suggested factors for determining the amount, including the facility's efforts to correct the identified problem, the facility's overall conditions, and the facility's history of compliance. Id. § 103(E). This consideration of the violator's good faith effort to comply makes arbitrary enforcement even less likely. Moreover, as observed in Village of Hoffman Estates, we can expect abortion clinics to consult relevant legislation in advance of action or to seek clarification from appropriate administrative sources when necessary. See 455 U.S. at 498, 102 S.Ct. 1186.

In the context of a facial challenge to a regulation, it is inappropriate to speculate regarding a worst-case scenario. See Hill, 530 U.S. at 733, 120 S.Ct. 2480 (noting that "speculation about possible vagueness and hypothetical situations not before the Court will not support a facial attack on a statute when it is surely valid `in the vast majority of its intended applications'" (quoting United States v. Raines, 362 U.S. 17, 23, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960))). Accordingly, we affirm the district court's conclusion that Regulation 61-12 is not unconstitutionally vague.

V

South Carolina, in its cross-appeal, challenges the district court's ruling that § 102(F)(2) of Regulation 61-12 is unconstitutional. That section provides: "Department inspectors shall have access to all properties and areas, objects, records and reports, and shall have the authority to make photocopies of those documents required in the course of inspections or investigations." The district court stated that because South Carolina identified "no compelling interest in the disclosure of identifying information" — i.e., information that reveals to the State the names of patients procuring abortions — § 102(F)(2) violates the patient's constitutional right to privacy "insofar as it requires access to identifying information." In a footnote, the court allowed that "[t]his constitutional problem can be cured by the plaintiffs redacting the documents to remove such information." South Carolina contends that, notwithstanding the district court's conclusion, it needs the information to monitor abortions and to assure compliance with the health-care standards in Regulation 61-12 aimed at preserving maternal health. It notes that even the National Abortion Federation, in its "Standards for Abortion Care," states that the "maintenance of complete and accurate records is essential for quality patient care and meaningful review of services." The Federation's "Standards of Abortion Care" explains that the "reporting of abortion procedures and complications to appropriate private and legally sanctioned public agencies generally improve[s] family planning services and public health information." In addition, South Carolina argues that its statutes and regulations provide adequately for the privacy of patients' records.

The abortion clinics contend, on the other hand, that disclosure of patients' names and records violates the patients' privacy rights as defined in Whalen v. Roe, 429 U.S. 589, 597, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977) (recognizing a right to privacy "in avoiding disclosure of personal matters"), and Walls v. City of Petersburg, 895 F.2d 188, 192 (4th Cir. 1990) (requiring the State to offer a "compelling" interest before disclosing protected information). They argue that the confidentiality of patient information is "vital to women seeking abortions because they may face harassment from their partners, co-workers, and others for having decided to undergo an abortion." And they maintain that disclosing the information also "may force patients to delay their abortions until they can go to a state where their confidentiality will be maintained; to go to an unlicensed provider; or to attempt to self-abort [sic]. Each of these alternatives poses serious risks to patient health."

South Carolina's abortion statute requires that each abortion be reported to the DHEC within seven days after the abortion is performed. See S.C. Code Ann. § 44-41-60. The same statute authorizes the DHEC to promulgate regulations for the maintenance of medical records and reports. See id. §§ 44-41-70, 44-41-75.

To carry out its mandate, the DHEC promulgated Regulation 61-12, comprehensively providing for the generation and maintenance of records and reporting as necessary to carry out the licensing and regulation of abortion clinics. Regulation 61-12 requires that written consent be obtained from each patient obtaining an abortion and that a copy of the consent be maintained in the patient's record. See DHEC Reg. 61-12, § 201(b)(10). The regulation prescribes a list of items that must be included in patients' medical records relating to any abortion procedure performed and requires that the records be maintained in a safe location for a minimum of ten years. See id. §§ 401, 402. It also requires that each laboratory test be documented in a report and maintained as part of the patient's record. See id. § 304(E). With respect to each employee at an abortion clinic, Regulation 61-12 requires that the clinic maintain a personnel file, documenting the employee's job description, work assignments, in-service education, licensure, if applicable, and tuberculosis skin-testing. See id. § 204(H). In-service training programs, providing employees training in specified areas at least once annually, must also be documented, reflecting the program's contents and attendance. See id. § 204(F). The regulation also requires that clinics maintain records of all controlled substances. See id. § 303(F). It mandates that the clinics conduct sterilization procedures and maintain records of those procedures, as well as safety-testing equipment and alarms. See id. §§ 602(C), 702. And the regulation requires that the clinic maintain on its premises the documentation evidencing its licensure in a manner sufficient to inform patients. See, e.g., id. §§ 203, 208, 209.

In addition to its requirements for generating and maintaining records, Regulation 61-12 imposes reporting requirements. Abortion clinics must report each abortion and each accident or incident to the Vital Records and Public Health Statistics section of the DHEC. See id. § 403. In addition, the abortion clinics are subject to regular inspections, and DHEC inspectors are given access to all "records and reports" and authority to make photocopies of those documents "required in the course of inspections or investigations." See id. § 102(F)(2).

The abortion clinics do not seriously challenge the requirement of generating and maintaining records. Indeed, they would have to acknowledge that each type of record relates directly to the health or safety requirements imposed by Regulation 61-12. And the Supreme Court has found that requiring documentation of this type is in the public interest and does not violate any constitutional right to privacy. See Whalen v. Roe, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977); Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976).

In Whalen, the Supreme Court upheld, against constitutional attack, the maintenance of a centralized State computer file that contained the names and addresses of all persons who had obtained certain prescription drugs, for which there was both a lawful and an unlawful market. Recognizing that patients have a protected interest "in avoiding disclosure of personal matters" as well as an interest in "independence in making certain kinds of important decisions," 429 U.S. at 599-600, 97 S.Ct. 869, the Supreme Court nonetheless held that "the New York program does not, on its face, pose a sufficiently grievous threat to either interest to establish a constitutional violation." Id. at 600, 97 S.Ct. 869. The Court noted that the invasions of privacy necessary for the public health were not "meaningfully distinguishable from a host of other unpleasant invasions of privacy that are associated with many facets of health care," explaining:

Unquestionably, some individuals' concern for their own privacy may lead them to avoid or to postpone needed medical attention. Nevertheless, disclosures of private medical information to doctors, to hospital personnel, to insurance companies, and to public health agencies are often an essential part of modern medical practice even when the disclosure may reflect unfavorably on the character of the patient.

Id. at 602, 97 S.Ct. 869. In response to the appellants' suggestions that the information could become public through deliberate or negligent conduct in numerous ways, the Court stated that "the remote possibility that judicial supervision of the evidentiary use of particular items of stored information will provide inadequate protection against unwarranted disclosures is surely not a sufficient reason for invalidating the entire patient-identification program." Id. at 601-02, 97 S.Ct. 869.

Similarly, in Danforth, the patients attacked a recordkeeping provision of Missouri's abortion statute contending, among other things, that it invaded the patient's "right to privacy in the physician-patient relationship." 428 U.S. at 57, 96 S.Ct. 2831. Under the Missouri statute, abortion providers were required to fill out state forms that were to be maintained confidentially and would be used only for statistical purposes. Nevertheless, the information was reportable to local, state and national public health officers. In upholding these requirements, the Court said: "Recordkeeping and reporting requirements that are reasonably directed to the preservation of maternal health and that properly respect a patient's confidentiality and privacy are permissible." Id. at 80, 96 S.Ct. 2831. The Court explained that the requirements of confidentiality and the limited duration of document-maintenance (seven years) "assist[ed] and persuad[ed]" the Court to conclude that the recordkeeping requirement had no "legally significant impact or consequence on the abortion decision or on the physician-patient relationship." Id. at 81, 96 S.Ct. 2831.

Similarly, we noted in our previous opinion in this case that the recordkeeping and copying requirements were justified to ensure compliance with health care standards. Bryant I, 222 F.3d at 171. We added that this was particularly so in view of the regulation's requirement that all records be treated as confidential. While our conclusion in Bryant I was limited to holding that the recordkeeping requirement did not unduly burden the abortion decision, the observation is still relevant to this discussion on privacy insofar as it supports a conclusion that recordkeeping requirements are meaningful to the overall health and safety purposes of Regulation 61-12.

Accordingly, we conclude that South Carolina's recordkeeping requirement does not per se violate the Constitution. This does not, however, answer the entire question of whether the reporting requirements and the potential for publication through court proceedings renders the requirements unconstitutional, as the abortion clinics argue. South Carolina must still demonstrate that the records it requires that contain personal information will be maintained in confidence to the extent possible as it uses the records to ensure the health and safety of its citizens. See Whalen, 429 U.S. at 602, 97 S.Ct. 869 (noting that disclosure to public health agencies are "an essential part of modern medical practice"); Walls, 895 F.2d at 192 (recognizing limits on an individual's right to privacy and requiring the government to move a compelling interest only if there will be disclosure of protected information). We conclude that South Carolina's statutes and Regulation 61-12 assure the patient's confidentiality, such that protected information will not be disclosed.

First, with respect to every facility licensed by the DHEC, the confidentiality of patient files is demanded. Section 44-7-310 of the South Carolina Code provides that the information received by the DHEC "which does not appear on the face of the license may not be disclosed publicly in a manner as to identify individuals or facilities." S.C. Code Ann. § 44-7-310. The only exception provided is for a proceeding involving licensure or an order of court. Id. Similarly, § 44-7-315, which authorizes the disclosure of information relating to licensed facilities, provides that "the Department may not disclose the identity of individuals present in a facility licensed by the department pursuant to this article or subject to inspection by the department." S.C. Code Ann. § 44-7-315.

The abortion statute itself, which requires that each abortion be reported to the DHEC, also provides that "the names of the patient and physician may not be reported on the form or otherwise disclosed to the state registrar." S.C. Code Ann. § 44-41-60. Finally, even in a court proceeding involving abortion licensure, the abortion statute requires that the court make an explicit ruling whether "the anonymity of any woman upon whom an abortion is performed or attempted shall be preserved from public disclosure if she does not give her consent to such a disclosure." S.C. Code Ann. § 44-41-360. In making that ruling, the court is explicitly required to apply the appropriate constitutional standard. See id.

Consistent with these statutory mandates to preserve the privacy of patients, Regulation 61-12 explicitly requires confidentiality of patients' records. Section 402 provides that "[a]ll records shall be treated as confidential." Moreover, employees working in abortion clinics must be trained on the "confidentiality of patient information and records, and protecting patient rights." See DHEC Reg. 61-12, § 204(F)(3). Section 209 requires that each licensed facility have "written policies and procedures to assure the individual patient the right to dignity, privacy, safety, and to register complaints with the department." Id. § 209(A) (emphasis added).

While § 102(F) authorizes a State inspector to review records for compliance with the abortion statute and with Regulation 61-12, that authorization to inspect records does not authorize the inspector to breach the statutory and regulatory mandates to protect the patient's privacy. The Supreme Court has recognized that "[r]equiring such disclosures to representatives of the State having responsibility for the health of the community, does not automatically amount to an impermissible invasion of privacy." Whalen, 429 U.S. at 602, 97 S.Ct. 869. As the Court observed in Danforth, "recordkeeping of this kind, if not abused or overdone, can be useful to the State's interest in protecting the health of its female citizens, and may be a resource that is relevant to decisions involving medical experience and judgment." 428 U.S. at 81, 96 S.Ct. 2831.

For these reasons, we conclude that the recordkeeping and information reporting mechanisms adopted by South Carolina in its statutes and in Regulation 61-12 do not require unnecessary disclosure of protected information, in violation of the privacy right identified in Whalen, 429 U.S. at 599-600, 97 S.Ct. 869. Even though the abortion clinics can conceive of circumstances where patients' privacy rights could be violated, either deliberately or through negligence, we cannot assume that the confidentiality measures adopted by South Carolina to prevent such violations will be administered improperly. Whalen, 429 U.S. at 601-02, 97 S.Ct. 869.

Accordingly, we reverse the district court's conclusion that Regulation 61-12 violates patients' privacy rights, as identified in Whalen, insofar as it permits the disclosure of patient identification to the State officials administering the program. See Whalen, 429 U.S. at 602-03, 97 S.Ct. 869 (finding constitutional a State maintained computer file containing the names and addresses of patients for whom drugs had been prescribed).

VI

In sum, on the abortion clinics' constitutional challenges to Regulation 61-12 based on (1) a standardless delegation of licensing authority, (2) an alleged violation of the Establishment Clause, and (3) a claim of vagueness, we reject the abortion clinics' arguments and affirm the district court. On South Carolina's cross-appeal challenging the district court's ruling that § 102(F) of Regulation 61-12 is unconstitutional, we reverse.

AFFIRMED IN PART REVERSED IN PART.