3:21-cv-00508-MGL Date Filed 04/28/21 Entry Number 100 Page 1 of 8
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF SOUTH CAROLINA
`COLUMBIA DIVISION
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`PLANNED PARENTHOOD SOUTH
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`ATLANTIC et al.,
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` Plaintiffs,
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`vs.
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`ALAN WILSON, in his official capacity as §
`Attorney General of South Carolina, et al.,
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`Defendants.
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`§
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` Civil Action No.: 3:21-00508-MGL
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`MEMORANDUM OPINION AND ORDER DENYING
`INTERVENOR-DEFENDANT MCMASTER’S MOTION TO DISMISS
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`I.
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`INTRODUCTION
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`Pending before the Court is Intervenor-Defendant Governor Henry McMaster’s (Governor
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`McMaster) motion to dismiss the amended complaint of Planned Parenthood South Atlantic
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`(PPSAT), on behalf of itself, its patients, and its physicians and staff; Greenville Women’s Clinic,
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`on behalf of itself, its patients, and its physicians and staff; and Terry L. Buffkin, M.D., on behalf
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`of himself and his patients (collectively, Plaintiffs). Having carefully considered the motion, the
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`response, the reply, the record, and the relevant law, the Court is of the opinion the motion should
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`be denied.
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF SOUTH CAROLINA
`COLUMBIA DIVISION
`
`
` §
`PLANNED PARENTHOOD SOUTH
` §
`ATLANTIC et al.,
`
`
`
`§
` Plaintiffs,
`§
`
`
`
`
`
`
`
`§
`
`vs.
`§
`
`
`
`
`
`
`
`ALAN WILSON, in his official capacity as §
`Attorney General of South Carolina, et al.,
` §
`
`
`Defendants.
`
`
`
`§
`
`
`
`
`
`
`
`
` Civil Action No.: 3:21-00508-MGL
`
`
`
`MEMORANDUM OPINION AND ORDER DENYING
`INTERVENOR-DEFENDANT MCMASTER’S MOTION TO DISMISS
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`
`
`I.
`
`
`INTRODUCTION
`
`Pending before the Court is Intervenor-Defendant Governor Henry McMaster’s (Governor
`
`McMaster) motion to dismiss the amended complaint of Planned Parenthood South Atlantic
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`(PPSAT), on behalf of itself, its patients, and its physicians and staff; Greenville Women’s Clinic,
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`on behalf of itself, its patients, and its physicians and staff; and Terry L. Buffkin, M.D., on behalf
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`of himself and his patients (collectively, Plaintiffs). Having carefully considered the motion, the
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`response, the reply, the record, and the relevant law, the Court is of the opinion the motion should
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`be denied.
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`3:21-cv-00508-MGL Date Filed 04/28/21 Entry Number 100 Page 2 of 8
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`II.
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`FACTUAL AND PROCEDURAL HISTORY
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`A.
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`Factual History
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`In Plaintiff’s amended complaint, pursuant to 42 U.S.C. § 1983, they challenge the
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`constitutionality of the South Carolina Fetal Heartbeat and Protection from Abortion Act, S.1, R-
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`2, Act. No 1 of 2021 (S.1 or the Act). Plaintiffs moved for a preliminary injunction to restrain
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`Defendants, their employees, agents, successors, and all others acting in concert or participating
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`with them, from enforcing the Act. The Act provides that “no person shall perform, induce, or
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`attempt to perform or induce an abortion” where the “fetal heartbeat has been detected.” S.1, § 3
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`(adding S.C. Code Ann. § 44-41-680(A)). It defines “fetal heartbeat” to include any “cardiac
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`activity, or the steady and repetitive rhythmic contraction of the fetal heart, within the gestational
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`sac.” Id. (adding S.C. Code Ann. § 44-41-610(3)).
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`The Act also includes new mandatory ultrasound, mandatory disclosure, recordkeeping,
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`reporting, and written notice requirements that are closely intertwined with the operation of the
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`prohibition on abortion after detection of cardiac activity. See, e.g., S.1 § 3 (adding S.C. Code
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`Ann. §§ 44-41-630, -640, -650); id. § 4 (amending S.C. Code Ann. § 44-41-460(A)); id. § 5 (adding
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`S.C. Code Ann. § 44-41-330(A)(1)(b)); id. § 6 (amending S.C. Code Ann. § 44-41-60).
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`B.
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`Procedural History
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`As is relevant here, the Court, on March 19, 2021, granted Plaintiffs’ motion for a
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`preliminary injunction. Governor McMaster subsequently filed the instant motion, Plaintiffs
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`responded, Governor McMaster replied, and Defendant-Intervenor South Carolina House of
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`Representatives Speaker James H. Lucas, in his official capacity as Speaker of the South Carolina
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`House of Representatives, filed a notice of joinder to Governor McMaster’s motion to dismiss.
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`2
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`3:21-cv-00508-MGL Date Filed 04/28/21 Entry Number 100 Page 3 of 8
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`The Court, having been fully briefed on the relevant issues, will now adjudicate Governor
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`McMaster’s motion to dismiss.
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`STANDARD OF REVIEW
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`III.
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`A.
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`Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1)
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`“The plaintiff has the burden of proving that subject matter jurisdiction exists.” Evans v.
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`B.F. Perkins Co., a Div. of Standex Intern. Corp., 166 F.3d 642, 647 (4th Cir. 1999). “When a
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`defendant challenges subject matter jurisdiction pursuant to Rule 12(b)(1), ‘the district court is to
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`regard the pleadings as mere evidence on the issue, and may consider evidence outside the
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`pleadings without converting the proceeding to one for summary judgment.’” Id. (quoting
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`Richmond, Fredericksburg & Potmac R. Co. v. United States, 945 F.2d 765, 769 (4th Cir. 1991)).
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`“The moving party should prevail only if the material jurisdictional facts are not in dispute and the
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`moving party is entitled to prevail as a matter of law.” Richmond, Fredericksburg, 945 F.2d at
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`768.
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`B.
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`Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6)
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`A party may move to dismiss a complaint based on its “failure to state a claim upon which
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`relief may be granted.” Fed. R. Civ. P. 12(b)(6). “The purpose of a Rule 12(b)(6) motion is to test
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`the sufficiency of a complaint.” Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999).
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`To survive the motion, a complaint must have “enough facts to state a claim to relief that is
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`plausible on its face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), and contain more
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`than “an unadorned, the-defendant-unlawfully-harmed-me accusation,” Ashcroft v. Iqbal, 556 U.S.
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`662, 678 (2009).
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`3
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`3:21-cv-00508-MGL Date Filed 04/28/21 Entry Number 100 Page 4 of 8
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`In considering a motion to dismiss, a plaintiff’s well-pled allegations are taken as true, and
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`the complaint and all reasonable inferences are liberally construed in the plaintiff’s favor. Mylan
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`Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). The Court may consider only the facts
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`alleged in the complaint, which may include any documents either attached to or incorporated in
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`the complaint, and matters of which the Court may take judicial notice. Tellabs, Inc. v. Makor
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`Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).
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`Although the Court must accept the plaintiff’s factual allegations as true, any conclusory
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`allegations are unentitled to an assumption of truth, and even those allegations pled with factual
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`support need be accepted only to the extent “they plausibly give rise to an entitlement to relief.”
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`Iqbal, 556 U.S. at 679. In sum, factual allegations must be enough to raise a right to relief above
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`the speculative level, on the assumption all the allegations in the complaint are true, even if
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`doubtful in fact. Twombly, 550 U.S. at 555.
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`IV. DISCUSSION AND ANALYSIS
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`A.
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`Whether Plaintiffs have standing to bring this lawsuit on behalf of their patients
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`Governor McMaster argues “Plaintiffs do not have standing to assert the rights of
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`unidentified women who might use their services.” McMaster’s Mot. at 9. In particular, Governor
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`McMaster posits the Court, in its Order granting Plaintiffs’ motion for a preliminary injunction,
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`neglected to “address Plaintiffs’ failure to allege the requisite facts for third party standing.” Id.
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`Governor McMaster contends “dismissal is warranted under either Rule 12(b)(1) or Rule
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`12(b)(6).” Id. at fn 2.
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`4
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`3:21-cv-00508-MGL Date Filed 04/28/21 Entry Number 100 Page 5 of 8
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`Plaintiffs, in their response, repeatedly cite to the Court’s March 19, 2021, Order granting
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`their motion for a preliminary injunction that concluded Plaintiffs have third-party standing to
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`bring this lawsuit on behalf of their patients.
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`Governor McMaster, in his reply, reiterates his contention Plaintiffs fail to “show a close
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`relationship with the women they seek to deprive of legal rights and remedies afforded by the Act
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`. . . .” McMaster’s Reply at 4.
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`The Court previously rejected Governor McMaster’s argument Plaintiffs lack third-party
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`standing to bring this lawsuit on behalf of their patients. See March 19, 2021, Order at 8 (quoting
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`Pls.’s Mot. at 1) (“As with the plaintiffs in [June Med. Servs., LLC v. Russo, 140 S. Ct. 2103
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`(2020),] Plaintiffs here bring this action to assert the constitutional rights of their patients and to
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`challenge a law that subjects Plaintiffs to ‘felony criminal and other penalties for running afoul of’
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`the Act” and “the Court concludes Plaintiffs have third-party standing to sue.”). The Court’s
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`previous holdings apply here. See United States v. Aramony, 166 F.3d 655, 661 (4th Cir. 1999)
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`(“[T]he doctrine of the law of the case posits that when a court decides upon a rule of law, that
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`decision should continue to govern the same issues in subsequent stages of the same case.”).
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`Therefore, the Court concludes Plaintiffs have third-party standing to sue on behalf of their
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`patients, and Governor McMaster’s motion to dismiss the amended complaint under Rule 12(b)(1)
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`for lack of subject matter jurisdiction is denied.
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`B.
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`Whether Plaintiffs have standing to assert a claim under Section 1983 and to
`obtain declaratory relief under the Declaratory Judgment Act
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`Governor McMaster maintains Plaintiffs lack standing to assert a claim under Section 1983
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`and are unable to obtain declaratory relief under the Declaratory Judgment Act. The Court will
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`address each argument in turn.
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`5
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`3:21-cv-00508-MGL Date Filed 04/28/21 Entry Number 100 Page 6 of 8
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`As to the Section 1983 argument, Governor McMaster avers Plaintiffs are unable to assert
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`a Section 1983 claim because they are not the party injured. Thus, according to Governor
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`McMaster, Plaintiffs “do[] not have standing to seek and obtain relief for deprivation of rights
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`against third parties[,]” McMaster’s Mot. at 13 (citation and quotations omitted), and the amended
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`complaint must be dismissed for failure to state a claim.
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`Plaintiffs insist, notwithstanding the fact the Court previously concluded they have
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`standing to seek relief under Section 1983 on behalf of their patients, “[f]ederal courts have for
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`four decades recognized third-party standing in suits for declaratory and injunctive relief brought
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`under Section 1983, both in cases involving abortion providers and in other contexts.” Pls.’ Resp.
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`in Opp’n at 12.
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`Governor McMaster’s reply reiterates his contention Plaintiffs are not the party injured,
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`and as a result, are unable to state a claim under Section 1983.
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`Here, the Court previously concluded, in its March 19, 2021, Order that Plaintiffs are able,
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`under Section 1983, to assert a claim on behalf of their patients. The Court’s previous holdings
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`apply here. See Aramony, 166 F.3d at 661 (“[T]he doctrine of the law of the case posits that when
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`a court decides upon a rule of law, that decision should continue to govern the same issues in
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`subsequent stages of the same case.”). Consequently, the Court concludes Plaintiffs have third-
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`party standing to assert a claim under Section 1983 on behalf of their patients.
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`Turning to Governor McMaster’s second argument, he posits Plaintiffs are unentitled to
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`relief under the Declaratory Judgment Act because they fail to seek a declaration of their own
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`rights.
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`6
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`3:21-cv-00508-MGL Date Filed 04/28/21 Entry Number 100 Page 7 of 8
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`Plaintiffs aver they “have demonstrated and as this Court has already concluded—Plaintiffs
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`have established third-party standing to seek declaratory and injunctive relief under Section 1983
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`on behalf of their patients.” Pls.’ Resp. in Opp’n at 15.
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`Governor McMaster, in his reply, reiterates his contention Plaintiffs are unable to, pursuant
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`to the Declaratory Judgement Act, “seek a declaration of other people’s rights, not their own . . . .”
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`McMaster’s Reply at 14.
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`The Court, in its March 19, 2021, Order concluded Plaintiffs established third-party
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`standing to seek declaratory and injunctive relief under Section 1983 on behalf of their patients.
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`The Court’s previous holdings apply here. See Aramony, 166 F.3d at 661 (“[T]he doctrine of the
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`law of the case posits that when a court decides upon a rule of law, that decision should continue
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`to govern the same issues in subsequent stages of the same case.”). Accordingly, the Court
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`concludes Plaintiffs are entitled to relief under the Declaratory Judgement Act, and Governor
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`McMaster’s motion to dismiss the amended complaint is denied.
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`C.
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`Whether Plaintiffs fail to state a claim as to the Act’s disclosure, recordkeeping,
`and reporting requirements
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`Governor McMaster argues “Plaintiffs’ action also fails to state a claim to the extent it
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`seeks invalidation of the entire Act.” McMaster’s Mot. at 20.
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`Plaintiffs, in their response, assert the “Court’s preliminary injunction order correctly
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`concluded that the Six-Week Ban is unconstitutional under binding law, discussed the preliminary
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`injunction factors with respect to that ban, and explained, in detail, that the other provisions cannot
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`be severed and must be enjoined.” Pls.’ Resp. in Opp’n at 17. Thus, Plaintiffs contend the “Court
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`should not revisit those well-founded conclusions—and indeed cannot do so—on a motion to
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`dismiss where the legal sufficiency of Plaintiffs’ complaint is beyond question.” Id.
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`7
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`3:21-cv-00508-MGL Date Filed 04/28/21 Entry Number 100 Page 8 of 8
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`Governor McMaster, in his reply, maintains “[b]ecause the Act requires any invalidated
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`provisions to be severed, dismissal of the aspect of [Plaintiffs’] claim for relief that seeks wholesale
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`invalidation is warranted.” McMaster’s Reply at 15.
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`Here, the Court, in its March 19, 2021, Order previously concluded, after an extensive and
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`detailed analysis of the different sections of the Act, that the provisions are unable to be severed
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`and must be enjoined. The Court’s previous holdings apply here. See Aramony, 166 F.3d at 661
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`(“[T]he doctrine of the law of the case posits that when a court decides upon a rule of law, that
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`decision should continue to govern the same issues in subsequent stages of the same case.”).
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`Consequently, Governor McMaster’s motion to dismiss the amended complaint under Rule
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`12(b)(6) for failure to state a claim as to the disclosure, recordkeeping, and reporting requirements
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`will be denied.
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`V.
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`CONCLUSION
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`Wherefore, based on the foregoing discussion and analysis, it is the judgment of the Court
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`Governor McMaster’s motion to dismiss the amended complaint is DENIED.
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`IT IS SO ORDERED.
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`Signed this 28th day of April 2021, in Columbia, South Carolina.
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`s/ Mary Geiger Lewis
`MARY GEIGER LEWIS
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`UNITED STATES DISTRICT JUDGE
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`8
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