Thirty-six years ago, Justice Sandra Day O’Connor noted that “no legal rule or doctrine is safe from ad hoc nullification . . . when an occasion for its application arises in a case involving state regulation of abortion.” Many Justices — Rehnquist, Scalia, Kennedy, Thomas, and Gorsuch among them — have since recognized this abortion distortion. Even Justice Stevens said that abortion “motivates ad hoc decisionmaking.” And Justice Alito noted that abortion is often “used like a bulldozer to flatten legal rules that stand in the way.”
A recent decision from the U.S. Court of Appeals for the Fourth Circuit shows that this abortion distortion continues. Last month, the appellate court affirmed a district court’s preliminary injunction against enforcement of any provision of the South Carolina Fetal Heartbeat and Protection from Abortion Act. To do so, the court disregarded both longstanding precedents and arguments from South Carolina and 20 other states.
South Carolina’s law is a package of abortion regulations, including provisions requiring the abortionist to give the mother the opportunity to see a sonogram and hear the heartbeat of her child, if the child has one. As Alabama and 19 other states noted in an amicus brief we filed with the court, such laws are common and commonly upheld by courts. South Carolina’s law added an additional element. To ensure the abortionist provides this important information to the mother, he can be sued by the mother for at least $10,000 if he fails to provide her the information. The law also limits abortions after a heartbeat is detected, with various exceptions. And it has a robust severability clause saying that the legislature would have passed every “word” independently, even if enforcement of any other provision of the law is enjoined. Though abortion providers challenged only the provision of the law limiting abortions after a heartbeat is detected, the district court enjoined enforcement of every one of the law’s provisions, and the appellate court affirmed.
In doing so, the Fourth Circuit breezed past nearly every significant argument pressed by South Carolina. For instance, the abortion providers purported to have standing to challenge the law on behalf of pregnant mothers. But, as South Carolina argued, the abortion providers should not be allowed to use their lawsuit to take away a cause of action against them from the very women whose interests they purported to represent. Such a conflict had never been sanctioned in any case — not even an abortion case, where other third-party standing rules have been bent. That was South Carolina’s central argument: if taking away the first party’s statutory rights against the plaintiff is not a conflict of interest, then what is? The court ignored the point.
South Carolina also made a compelling argument that even if the abortion providers had constitutional standing, they could not state a cause of action under 42 U.S.C. § 1983. That federal statute allows persons whose rights have been violated by state officials to sue those officials. The statute’s text and hundreds of precedents limit such claims to the party personally deprived of constitutional rights. Abortionists are not such a party, for they have no constitutional right to abort unborn children. But, in a brief footnote, the court said that constitutional standing suffices to state a cause of action — ignoring the distinction between standing and causes of action, to say nothing of the hundreds of decisions rejecting third-party § 1983 claims. Again, no rule is safe from the abortion distortion, and the disruptions from this unprecedented conclusion will be especially far-reaching.
Finally, in perhaps its worst error, the Fourth Circuit disregarded the law’s severability clause and broadly asserted that requiring an ultrasound and letting the mother see it is “plainly intended to facilitate the Act’s ‘fetal heartbeat’ abortion ban” and “make[s] little sense without the ban.” The court did not explain how letting a mother see her unborn child relates in any way to the post-heartbeat abortion regulation, much less how its holding squares with the law’s clear severability clause requiring severance of any “word” invalidated. Nor did the court account for South Carolina law, which governs severability and requires that courts both follow severability clauses and enjoin enforcement of only those provisions that cannot operate independently. The court also failed to address the fact, raised by Alabama, that numerous states have concluded that laws providing this information to mothers make sense as standalone laws because numerous states have enacted such laws.
All that seemed to matter to the Fourth Circuit panel was the result: giving abortion providers maximum latitude, even if that means taking away important information from mothers when making one of the hardest decisions imaginable. As the Supreme Court explained in Gonzales v. Carhart, “The State has an interest in ensuring so grave a choice is well informed. It is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns, only after the event, what she once did not know” about her unborn child.
Perhaps the en banc Fourth Circuit will step in and correct this latest Roe-induced departure from the rule of law. We have encouraged the court to do so in an amicus brief we filed on behalf of Alabama and 20 other states. But better still would be for the Supreme Court to take the opportunity presented it in Dobbs v. Jackson Women’s Health to address the root of these jurisprudential aberrations by overturning Roe v. Wade and allowing states to protect unborn life.