3:21-cv-00508-MGL Date Filed 03/19/21 Entry Number 73 Page 1 of 22
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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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`§
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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 GRANTING
`PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION
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`I.
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`INTRODUCTION
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`Planned Parenthood South Atlantic (PPSAT), on behalf of itself, its patients, and its
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`physicians and staff; Greenville Women’s Clinic, on behalf of itself, its patients, and its physicians
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`and staff; and Terry L. Buffkin, M.D., on behalf of himself and his patients (collectively,
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`Plaintiffs), filed an amended complaint for declaratory and injunctive relief against Alan Wilson,
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`in his official capacity as Attorney General of South Carolina (AG Wilson); Edward Simmer, in
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`his official capacity as Director of the South Carolina Department of Health and Environmental
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`Control (DHEC); Anne G. Cook, in her official capacity as President of the South Carolina Board
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`of Medical Examiners (SCBME); Stephen I. Schabel, in his official capacity as Vice President of
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`the SCBME; Ronald Januchowski, in his official capacity as Secretary of the SCBME; Jim C.
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`Chow, in his official capacity as a Member of the SCBME; George S. Dilts, in his official capacity
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`3:21-cv-00508-MGL Date Filed 03/19/21 Entry Number 73 Page 2 of 22
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`as a Member of the SCBME; Dion Franga, in his official capacity as a Member of the SCBME;
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`Richard Howell, in his official capacity as a Member of the SCBME; Theresa Mills-Floyd, in her
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`official capacity as a Member of the SCBME; Jeffrey A. Walsh, in his official capacity as a
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`Member of the SCBME; Christopher C. Wright, in his official capacity as a Member of the
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`SCBME; Scarlett A. Wilson, in her official capacity as Solicitor for South Carolina’s 9th Judicial
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`Circuit (Solicitor Wilson); Byron E. Gipson, in his official capacity as Solicitor for South
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`Carolina’s 5th Judicial Circuit (Gipson); and William Walter Wilkins, III, in his official capacity
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`as Solicitor for South Carolina’s 13th Judicial Circuit (Wilkins) (collectively, Defendants).
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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 have 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. Having carefully considered the motion, the responses, the
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`replies, the oral argument, the record, and the relevant law, the Court is of the opinion the motion
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`should be granted.
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`FACTUAL AND PROCEDURAL HISTORY
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`II.
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`A.
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`Factual History
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`The Act provides that “no person shall perform, induce, or attempt to perform or induce an
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`abortion” where the “fetal heartbeat has been detected.” S.1, § 3 (adding S.C. Code Ann. § 44-41-
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`680(A)). It defines “fetal heartbeat” to include any “cardiac activity, or the steady and repetitive
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`rhythmic contraction of the fetal heart, within the gestational sac.” Id. (adding S.C. Code Ann.
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`§ 44-41-610(3)).
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`3:21-cv-00508-MGL Date Filed 03/19/21 Entry Number 73 Page 3 of 22
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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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`Governor McMaster signed the Act into law on February 18, 2021. Several hours prior to
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`Governor McMaster signing the Act into law, Plaintiffs filed their complaint and a motion for a
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`temporary restraining order (TRO) and preliminary injunction (Pls.’ Mot.). On the following day,
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`AG Wilson, Wilkins, and Solicitor Wilson filed their response, DHEC filed a response adopting
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`AG Wilson, Wilkins, and Solicitor Wilson’s response, and the SCBME defendants filed their
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`response.
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`The Court held a hearing on Plaintiffs’ motion for a TRO, after which it granted the motion.
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`Gipson and the SCBME defendants entered into separate stipulations with Plaintiffs whereby they
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`“agree[d] not to investigate or prosecute based on [the Act] until such time as a final, non-
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`appealable judgment has been issued in this matter[,]” Gipson Stipulation at 1; SCBME Stipulation
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`at 2, and Plaintiffs agreed to withdraw their requests for injunctive relief as to them. Solicitor
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`Wilson, in an effort to minimize legal costs and efforts, declined to file further briefing on
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`Plaintiffs’ request for injunctive relief.
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` Defendants AG Wilson and Wilkins filed a supplemental response (Suppl. Return of AG
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`Wilson and Wilkins), and Governor Henry McMaster, in his official capacity as Governor of the
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`State of South Carolina, (Governor McMaster) filed a motion to dissolve the TRO (McMaster Br.).
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`The Court subsequently extended the TRO for another fourteen days.
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`Plaintiffs filed their reply to AG Wilson and Wilkins’s supplemental response (Pls.’ Reply
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`in Supp. Mot. for Prelim. Inj.) and the Court then held a hearing on Plaintiffs’ motion for a
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`preliminary injunction. Thereafter, the Court allowed Governor McMaster and South Carolina
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`House of Representatives Speaker James H. Lucas, in his official capacity as Speaker of the South
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`Carolina House of Representatives, to permissibly intervene in this action pursuant to Fed. R. Civ.
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`P. 24(b)(1)(B). As to Plaintiffs’ request for injunctive relief, Speaker Lucas failed to file any
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`briefing.
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` Plaintiffs filed their response to Governor McMaster’s motion (Pls.’ Suppl. Reply) and
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`also filed an amended complaint that includes allegations based on Governor McMaster’s signing
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`of the Act and the law’s current effect. Governor McMaster subsequently replied (McMaster
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`Reply).
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`The Court, having been fully briefed on the relevant issues, will now adjudicate Plaintiffs’
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`motion for a preliminary injunction.
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`STANDARD OF REVIEW
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`III.
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`“[P]reliminary injunctions are intended to meet exigent circumstances[.]” Ideal Toy Corp.
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`v. Plawner Toy Mfg. Corp., 685 F.2d 78, 84 (3d Cir. 1982). They are “an extraordinary remedy
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`never awarded as of right.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). “[T]he
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`party seeking [a preliminary injunction] must prove [its] own case and adduce the requisite proof,
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`by a preponderance of the evidence, of the conditions and circumstances upon which [it] bases the
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`right to and necessity for injunctive relief.” Citizens Concerned for Separation of Church & State
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`v. City of Denver, 628 F.2d 1289, 1299 (10th Cir. 1980).
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`A preliminary injunction should issue only when the plaintiff can “[1] establish that [it is]
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`likely to succeed on the merits, [2] that [it is] likely to suffer irreparable harm in the absence of
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`preliminary relief, [3] that the balance of equities tips in [its] favor, and [4] that [injunctive relief]
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`is in the public interest.” Winter, 555 U.S. at 20. The burden is on the party seeking injunctive
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`relief to show it is entitled to the relief, not the burden of the other party to show the movant is not
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`entitled. Granny Goose Foods, Inc. v. Bhd. of Teamsters, 415 U.S. 423, 443 (1974).
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`“[A]ll four requirements must be satisfied.” Real Truth About Obama, Inc. v. Fed. Election
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`Comm’n, 575 F.3d 342, 346 (4th Cir. 2009). Thus, even a strong showing of likely success on the
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`merits cannot compensate for failure to show likely injury. Winter, 555 U.S. at 21–22. And,
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`irreparable injury alone is insufficient to support equitable relief. See id. at 23 (holding irreparable
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`injury was likely to occur, but holding injunctive relief was improper because of the burden on the
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`government and the impact on public interest). In other words, “[a] preliminary injunction shall
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`be granted only if the moving party clearly establishes entitlement.” Di Biase v. SPX Corp., 872
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`F.3d 224, 230 (4th Cir. 2017).
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`“Given [the] limited purpose [of a preliminary injunction], and given the haste that is often
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`necessary . . . , [they are] customarily granted on the basis of procedures that are less formal and
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`evidence that is less complete than in a trial on the merits.” Univ. of Tex. v. Camenisch, 451 U.S.
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`390, 395 (1981). “Because [the] proceedings are informal ones designed to prevent irreparable
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`harm before a later trial governed by the full rigor of usual evidentiary standards, district courts
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`may look to, and indeed in appropriate circumstances rely on, hearsay or other inadmissible
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`evidence when deciding whether a preliminary injunction is warranted.” G.G. ex rel. Grimm v.
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`Gloucester Cty. Sch. Bd., 822 F.3d 709, 725–26 (4th Cir. 2016), vacated and remanded on other
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`grounds, 137 S. Ct. 1239 (2017).
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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
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`Governor McMaster has challenged Plaintiffs’ standing to bring this lawsuit. Thus, the
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`Court must decide that issue before it can consider the merits of Plaintiffs’ constitutional claim.
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`See Hollingsworth v. Perry, 570 U.S. 693, 704 (2013) (“[A]ny [organization] invoking the power
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`of a federal court must demonstrate standing to do so.”).
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`Governor McMaster argues Plaintiffs lack standing for two reasons. As to the first, he
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`contends “Plaintiffs cannot challenge an unenacted bill[,]” as they filed this lawsuit prior to him
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`signing the bill into law. McMaster Br. at 9.
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`Plaintiffs, in their supplemental reply, note “they have now filed an amended complaint
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`that includes allegations based on the Governor’s signature and the law’s current effect, which will
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`eliminate the need for this Court to even address the argument.” Pls.’ Suppl. Reply at 3.
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`In his reply, Governor McMaster avers “the TRO would need to be dissolved and Plaintiffs’
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`pending motion for a preliminary injunction denied as moot, for both are based on a complaint that
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`is now a nullity.” McMaster Reply at 3.
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`“[W]hen a plaintiff files a complaint in federal court and then voluntarily amends the
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`complaint, courts look to the amended complaint to determine jurisdiction.” Rockwell Intern.
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`Corp. v. U.S., 549 U.S. 457, 473–74 (2007). Accordingly, in the instant case, Plaintiffs’ filing of
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`an amended complaint “that includes allegations based on the Governor’s signature and the law’s
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`current effect,” Pls.’ Suppl. Reply at 3, moots Governor McMaster’s argument Plaintiffs lack
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`standing to challenge an unenacted bill.
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`Also, the Court concludes Governor McMaster’s contention Plaintiffs’ amended complaint
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`necessitates the Court dissolve the TRO and deny the motion for preliminary injunction as moot
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`is without merit. As an initial matter, his argument as to the TRO is now moot due to this Order.
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`And, regarding Plaintiffs’ motion for a preliminary injunction, the Court will treat that filing as
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`directed at the amended complaint.
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`Turning to Governor McMaster’s second argument challenging Plaintiffs’ standing to
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`bring this lawsuit, he maintains Plaintiffs have failed to show “any of the elements of third-party
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`standing” because “they have not suggested a close relationship with such women, much less any
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`hindrance to women asserting their own rights.” McMaster Br. at 2.
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`Plaintiffs, in their supplemental reply, posit Governor McMaster’s argument is directly
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`undercut by decades of Supreme Court precedent.
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`As to third-party standing, the Supreme Court has long established that abortion providers
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`have standing to assert their patients’ rights. See Singleton v. Wulff, 428 U.S. 106, 117 (1976)
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`(noting that abortion providers are “uniquely qualified to litigate the constitutionality of the
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`[s]tate’s interference with, or discrimination against” the patient’s decision to have an abortion.).
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`The Supreme Court has also recognized the standing of abortion providers to sue on their
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`own behalf when challenged legislation or regulations operate directly against them. See Planned
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`Parenthood of Cen. Mo. v. Danforth, 428 U.S. 52, 62 (1976) (internal citation omitted) (footnote
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`omitted) (noting that the physician-appellants in that case have standing because they “assert a
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`sufficiently direct threat of personal detriment. They should not be required to await and undergo
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`a criminal prosecution as the sole means of seeking relief.”).
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`These standing principles were recently reaffirmed, as noted by Plaintiffs, in June Med.
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`Servs., LLC v. Russo, 140 S. Ct. 2103 (2020), where the majority opined abortion providers have
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`standing to assert the constitutional rights of their patients. Id. at 2118 (“We have long permitted
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`abortion providers to invoke the rights of their actual or potential patients in challenges to abortion-
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`related regulations.”).
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`As with the plaintiffs in Russo, Plaintiffs here bring this action to assert the constitutional
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`rights of their patients and to challenge a law that subjects Plaintiffs to “felony criminal and other
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`penalties for running afoul of” the Act. Pls.’ Mot. at 1. Accordingly, the Court concludes Plaintiffs
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`have third-party standing to sue.
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`B.
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`Whether Plaintiffs are able to establish they are likely to succeed on the merits
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`Turning to the first requirement, Plaintiffs claim they are likely to succeed on the merits of
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`their claim. In doing so, they claim the Act is “blatantly constitutional” and “[s]ince Roe, courts
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`considering the constitutionality of laws that ban abortions beginning at a gestational age prior to
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`viability have universally invalidated those laws, including some in which the prohibition began
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`several months later in pregnancy than [the Act’s] Six-Week Ban would.” Id. at 11, 13.
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`Defendants AG Wilson, Wilkins, and Governor McMaster contend Plaintiffs are unable to
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`establish a likelihood of success on the merits. As to AG Wilson and Wilkins, their briefing
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`focuses almost exclusively on the Supreme Court’s decision in Gonzales v. Carhart, 550 U.S. 124
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`(2007). Specifically, AG Wilson and Wilkins contend the Supreme Court in Gonzales “employed
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`[Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992)] undue burden standard, [but]
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`considerably relaxed that standard” and determined “a ban upon a particular form of abortion—
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`even prior to viability—was deemed constitutionally acceptable[.]” Suppl. Return of AG Wilson
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`and Wilkins at 6, 8.
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`Governor McMaster argues Plaintiffs, and the Court, in its February 19, 2021, Order
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`granting their motion for a TRO, misapplied the holding of Casey as to previability abortion
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`restrictions. In particular, Governor McMaster contends “[p]reviability regulations are subject to
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`Casey’s undue burden standards[,]” and “binding precedent forecloses Plaintiffs’ legal argument
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`that any previability limitation on abortion is automatically unconstitutional.” McMaster Br. at
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`23–24 (emphasis modified).
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`The Supreme Court has held that a state may not “prohibit any woman from making the
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`ultimate decision to terminate her pregnancy before viability.” Casey, 505 U.S. at 879. “Casey
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`reaffirmed the most central principle of Roe v. Wade [410 U.S. 113 (1973),] a woman’s right to
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`terminate her pregnancy before viability[.]” Russo, 140 S. Ct. at 2135 (Roberts, C.J., concurring)
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`(internal citations and quotations omitted). The Supreme Court has declined to revisit the legal
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`principle that “before ‘viability . . . the woman has a right to choose to terminate her pregnancy.’”
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`Stenberg v. Carhart, 530 U.S. 914, 921 (2000) (quoting Casey, 505 U.S. at 870).
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`Moreover, “[b]efore viability, the [s]tate’s interests are not strong enough to support a
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`prohibition on abortion or the imposition of a substantial obstacle to the woman’s effective right
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`to elect” an abortion procedure. Casey, 505 U.S. at 846. Put another way, “Before viability, a
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`[s]tate ‘may not prohibit any woman from making the ultimate decision to terminate her
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`pregnancy.’” Carhart, 550 U.S. at 146 (quoting Casey, 505 U.S. at 879).
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`In addition, the South Carolina Code establishes a legal presumption that “viability occurs
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`no sooner than the twenty-fourth week of pregnancy,” S.C. Code Ann. § 44-41-10(l), a
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`presumption supported by Plaintiff PPSAT’s Chief Medical Officer (Dr. Farris), who declared:
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`“Although variable by pregnancy, viability is generally understood as the point when a fetus has a
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`reasonable likelihood of sustained survival after birth, with or without artificial support.”
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`Declaration of Katherine Farris, M.D. (“Farris Decl.”) ¶ 20, Pls.’ Mot. at Ex. B. And, viability is
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`“medically impossible” at six weeks of pregnancy, or at any time in the first trimester of pregnancy,
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`when Plaintiffs provide abortion services in South Carolina. Id. ¶ 21.
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`Yet the Act expressly bars the provision of nearly all abortions in South Carolina upon
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`detection of embryonic or fetal “cardiac activity,” S.1, § 3 (adding S.C. Code Ann. § 44-41-680),
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`which may occur as early as six weeks of pregnancy, or even sooner. For example, “Sometimes
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`th[e] flicker [of an electrical impulse that constitutes cardiac activity] is visible as early as partway
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`through the fifth week [last menstrual period (LMP)].”). Farris Decl. ¶ 23, Pls.’ Mot. at Ex. B.
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`Consequently, because the Court holds the Act bans abortion months before any fetus could
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`be viable, Plaintiffs are likely to succeed on their claim that the Act is unconstitutional. Indeed,
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`courts have universally invalidated laws that ban abortions beginning at a gestational age prior to
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`viability. See, e.g., Jackson Women’s Health Org. v. Dobbs, 945 F.3d 265, 269 (5th Cir. 2019)
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`(15-week ban); MKB Mgmt. Corp. v. Stenehjem, 795 F.3d 768, 776 (8th Cir. 2015), cert. denied,
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`136 S. Ct. 981 (2016) (6-week ban); Edwards v. Beck, 786 F.3d 1113, 1115 (8th Cir. 2015), cert.
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`denied, 136 S. Ct. 895 (2016) (12-week ban); McCormack v. Herzog, 788 F.3d 1017, 1029 (9th
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`Cir. 2015) (equivalent of 22-week LMP ban); Isaacson v. Horne, 716 F.3d 1213, 1217 (9th Cir.
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`2013), cert. denied, 571 U.S. 1127 (2014) (20-week ban); Jane L. v. Bangerter, 102 F.3d 1112
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`(10th Cir. 1996) (equivalent of 22-week LMP ban); Sojourner T v. Edwards, 974 F.2d 27, 31 (5th
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`Cir. 1992), cert. denied, 507 U.S. 972 (1993) (ban at all gestational ages); Guam Soc’y of
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`Obstetricians & Gynecologists v. Ada, 962 F.2d 1366, 1368–69 (9th Cir. 1992), cert. denied, 506
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`U.S. 1011 (1992) (ban at all gestational ages); SisterSong Women of Color Reprod. Justice
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`Collective v. Kemp, 472 F. Supp. 3d 1297, 1312 (N.D. Ga. 2020) (ban upon cardiac activity),
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`appeal filed, No. 20-13024 (11th Cir. Aug. 11, 2020); Memphis Ctr. for Reprod. Health v. Slatery,
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`No. 3:20-CV-00501, 2020 WL 4274198, at *2 (M.D. Tenn. July 24, 2020) (preliminary injunction
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`of ban upon cardiac activity), appeal filed, No. 20-5969 (6th Cir. Aug. 24, 2020); Bryant v.
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`Woodall, 363 F. Supp. 3d 611, 630–31 (M.D.N.C. 2019) (20-week ban), appeal filed on other
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`grounds, No. 19-1685 (4th Cir. June 26, 2019); EMW Women’s Surgical Ctr., P.S.C. v. Beshear,
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`No. 3:19-CV-178-DJH, 2019 WL 1233575, at *2 (W.D. Ky. Mar. 15, 2019) (temporary restraining
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`order of ban upon cardiac activity); Preterm-Cleveland v. Yost, 394 F. Supp. 3d 796, 804 (S.D.
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`Ohio 2019) (preliminary injunction of ban upon cardiac activity).
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`Lastly, AG Wilson and Wilkins’s interpretation of the Supreme Court’s decision in
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`Gonzalez is incorrect. In fact, the Supreme Court in Gonzalez specifically stated “[w]e assume the
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`following principles for the purposes of this opinion. Before viability, a [s]tate ‘may not prohibit
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`any woman from making the ultimate decision to terminate her pregnancy.’” Gonzalez, 550 U.S.
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`at 146 (quoting Casey, 505 U.S. at 879). And, as noted by Plaintiffs, “an unbroken line of cases
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`since Gonzalez has uniformly adhered to [the previability rule of Casey], regardless of the [s]tate’s
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`asserted interests or whether abortion earlier in pregnancy remains available.” Pls.’ Reply in Supp.
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`Mot. for Prelim. Inj. at 4.
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`Thus, the Court concludes Plaintiffs have established a substantial likelihood of success on
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`the merits of their claim that the Act is unconstitutional.
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`C.
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`Whether Plaintiffs are likely to suffer irreparable harm in the absence of
`preliminary relief
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`As to the second requirement, Plaintiffs claim they are likely to suffer irreparable harm in
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`the absence of preliminary relief. They contend the Act will deny their patients “access to timely
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`and constitutionally protected previability abortions.” Pls.’ Mot. at 14.
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`AG Wilson and Wilkins’s expert, Dr. Ingrid Skop, avers Plaintiffs fail to show irreparable
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`harm because “the vast majority of women have sufficient time to obtain an abortion prior to the
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`point of a detectable heartbeat.” Expert Report of Dr. Ingrid Skop ¶ 8, AG Wilson and Wilkins’s
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`Suppl. Return at Ex. B.
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`Governor McMaster contends “[b]ased on [Plaintiffs’] Complaint, the only possible injury
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`would be loss of business, but it is well-settled that such monetary injuries do not constitute
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`irreparable harm.” McMaster Br. at 33.
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`As to AG Wilson and Wilkins’s argument, Plaintiffs’ argue Skop’s opinion “is at odds with
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`actual data from South Carolina.” Pls.’ Reply in Supp. Mot. for Prelim. Inj. at 10. In support of
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`this contention, Plaintiffs cite to Dr. Farris’s declaration that states “[i]n 2020, approximately 96%
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`of all abortions that [Plaintiff PPSAT] performed in South Carolina were done at [six] weeks LMP
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`or later.” Farris Decl. ¶ 31, Pls.’ Mot. at Ex. B.
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`Responding to Governor McMaster’s argument, Plaintiffs posit his position is “based on
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`the incorrect assertion that Plaintiffs have no third-party standing[,]” and when third-party standing
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`is shown, as is the case here, “a litigant need not show irreparable harm to itself, so long as the
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`irreparable harm would occur for the third party whose rights are actually at issue.” Pls.’ Suppl.
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`Reply at 7.
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`Any deprivation of constitutional rights “for even minimal periods of
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`time[]
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`unquestionably constitutes irreparably injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976)). “Roe
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`v. Wade . . . establish[ed] beyond argument that denial under color of law of the right to abort . . .
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`constitutes irreparable injury . . . .” Doe v. Charleston Area Med. Ctr., Inc., 529 F.2d 638, 644
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`(4th Cir. 1975).
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`Here, the Court concludes Plaintiffs’ patients are likely to suffer irreparable injury absent
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`a preliminary injunction. To avoid the Act’s effects, Plaintiffs have demonstrated they will be
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`forced to stop providing abortion services to the vast majority of their patients. As noted by Dr.
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`Farris, “The Act’s impact will be harshest for [Plaintiffs’] patients with low incomes, patients of
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`color, and patients who live in rural areas. Roughly half [of Plaintiffs’] abortion patients in South
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`Carolina health centers are Black, and in 2020, those health centers provided abortion services to
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`patients residing in all but three South Carolina counties.” Farris Decl. ¶ 47, Pls.’ Mot. at Ex. B.
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`Plaintiffs have also demonstrated that their patients would suffer a range of other financial,
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`physical, mental, and emotional harms caused by a denial of access to abortion in South Carolina.
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`Dr. Farris notes, in her declaration, “In [her] experience, women decide to have abortions for a
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`variety of reasons, including to protect or preserve their physical or mental health, to provide care
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`to existing children and family members, to avoid forgoing educational or economic opportunities
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`due to unplanned childbirth . . . .” Farris Decl. ¶¶ 52–58, Pls.’ Mot. at Ex. B. And, these harms,
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`the Court concludes, likewise “constitute irreparable injury.” Doe, 529 F.2d at 644.
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`Consequently, the Court concludes Plaintiffs have shown they are likely to suffer
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`irreparable harm if the Court fails to grant the preliminary injunction.
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`D. Whether the balance of equities tip in Plaintiffs’ favor
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`Regarding the third requirement, Plaintiffs argue the balance of equities clearly tips in their
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`favor because their “patients will unquestionably face a far greater harm while [the Act] is in effect
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`than Defendants would face if the court entered an injunction to preserve the status quo.” Pls.’
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`Mot. at 16.
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`AG Wilson and Wilkins contend because “the vast majority of women have sufficient time
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`to obtain an abortion under the Act, and because of the State’s strong interest in protecting unborn
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`life as well as the health of the mother, the equities favor the state.” AG Wilson and Wilkins’s
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`Suppl. Return at 17 (internal citation omitted) (footnote omitted).
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`Governor McMaster avers the balance of equities favor his position because “Plaintiffs will
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`suffer no irreparable harm while their case is litigated, and the State of South Carolina has a
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`profound interest in seeing its law—passed by overwhelming majorities of the People’s
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`3:21-cv-00508-MGL Date Filed 03/19/21 Entry Number 73 Page 14 of 22
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`representatives and signed by the Governor—respected and enforced.” McMaster Br. at 34.
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`Here, the State of South Carolina is “in no way harmed by [the] issuance of a preliminary
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`injunction which prevents it from enforcing” a law that “is likely to be found unconstitutional.”
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`Newsom ex rel. Newsom v. Albemarle Cnty. Sch. Bd., 354 F.3d 249, 261 (4th Cir. 2003). “If
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`anything, the system is improved by such an injunction.” Giovani Carandola, Ltd. v. Bason, 303
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`F.3d 507, 521 (4th Cir. 2002) (citation omitted). Hence, the Court concludes the balance of
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`equities tip in Plaintiffs’ favor.
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`E.
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`Whether injunctive relief is in the public interest
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`And, as to the fourth, and final, requirement, Plaintiffs posit injunctive relief is in the public
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`interest because “the public has a particularly strong interest in a speedy injunction here to block
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`a law whose basis runs afoul of nearly fifty years of Supreme Court precedent and where temporary
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`relief would merely preserve the longstanding status quo on which South Carolinians seeking an
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`abortion have come to rely.” Pls.’ Mot. at 17.
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`AG Wilson and Wilkins posit the state’s “strong interest in protecting unborn human life,
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`as well as the health of the mother,” AG Wilson and Wilkins’s Suppl. Return at 17, indicates a
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`strong public interest in denying Plaintiffs’ motion for a preliminary injunction. Governor
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`McMaster likewise references the state’s interest in protecting unborn human life, as well as the
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`mother and the medical profession in general, in support of his contention injunctive relief is not
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`in the public interest.
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`Plaintiffs respond to these arguments and assert the enforcement of “an injunction against
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`a plainly unconstitutional law” such as the Act favors the public interest and ensures “[t]he
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`constitutional rights of South Carolinians, including the right to end a pregnancy, are not subject
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`to the political aspirations or whims of legislators.” Pls.’ Reply in Supp. Mot. for Prelim. Inj. at
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`11.
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`Here, the public interest is served by the entry of an injunction necessary to “uphold[]
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`constitutional rights.” League of Women Voters of N.C. v. North Carolina, 769 F.3d 224, 248 (4th
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`Cir. 2014) (quoting Newsom, 354 F.3d at 261); accord Centro Tepeyac v. Montgomery Cnty., 722
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`F.3d 184, 190 (4th Cir. 2013) (en banc). And, because South Carolina already bans nearly all
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`abortions after viability, see S.C. Code Ann. § 44-41-450 (stating “[n]o person shall perform or
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`induce . . . and abortion . . . when it has been determined . . . that the probable post-fertilization
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`age of the woman’s unborn child is twenty or more weeks . . . .), the only effect of an injunction
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`would be to prevent South Carolina from enforcing its unconstitutional ban on previability
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`abortions. As such, the Court concludes injunctive relief is in the public interest.
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`Consequently, Plaintiffs meet the four requirements necessary for the Court to issue
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`injunctive relief.
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`F.
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`Whether the Act is severable
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`In case the Court concludes the Act is unconstitutional, AG Wilson and Wilkins aver the
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`Act is severable, and Plaintiffs contend the opposite is true. Prior to addressing the parties’
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`arguments, the Court will provide a brief summary of some of the key provisions of the Act.
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`S.C. Code Ann. § 44-41-680 specifically prohibits abortions after the detection, by a
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`mandatory ultrasound made pursuant to Section 44-41-630, of a fetal heartbeat. Section 44-41-
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`610 defines a fetal heartbeat; Section 44-41-650 imposes penalties for violating the Act; Section
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`44-41-660 precludes application of the penalties proscribed in Section 44-41-650 in the event an
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`abortion is performed in contravention of Section 44-41-680 for medical emergencies; Section 44-
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`41-670 precludes application of the penalties proscribed in Section 44-41-650 when an abortion is
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`performed on a fetus with no detectable heartbeat; and, Section 44-41-690 allows for
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`3:21-cv-00508-MGL Date Filed 03/19/21 Entry Number 73 Page 16 of 22
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`noncompliance with the Act in the event an abortion is required to prevent a serious risk to the
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`health of the pregnant mother. The aforementioned provisions are all located in Section 3 of the
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`Act.
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`Sections 4 and 6 of the Act involve reporting requirements as to whether the Act was
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`followed. These reporting requirements are amendments to already existing provisions of the S.C.
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`Code. Section 5 of the Act requires mandatory disclosure about the detection of cardiac activity
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`after completing the mandatory ultrasound as set forth in Section 44-14-630. Likewise, these
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`disclosure requirements are amendments to already existing provisions of the S.C. Code.
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`
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`Turning to the parties arguments, AG Wilson and Wilkins, in their supplemental response,
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`aver Section 44-41-680 should be the only provision of the Act “that should be subject to
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`consideration as to this Motion [for preliminary injunction] because it is the only one that bars
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`abortions after the heartbeat is detected.” Suppl. Return of AG Wilson and Wilkins at 2. In
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`particular, AG Wilson and Wilkins argue the “Act contains numerous other provisions that should
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`not be subject to [Plaintiffs’] Motion [for a preliminary injunction] because they do not bar
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`abortions . . . .” Id. In support of their argument, AG Wilson and Wilkins cite the Act’s “strong
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`severability clause”, Id. at 16, that states:
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`If any section, subsection, paragraph, subparagraph, sentence,
`clause, phrase, or word of this act is for any reason held to be
`unconstitutional or invalid, then such holding shall not affect the
`constitutionality or validity of the remaining portions of this act, the
`General Assembly hereby declaring that it would have passed this
`act and each and every sec