Ruling: S.C. abortion law doesn't violate church-state separation

By The Associated Press

09.20.02

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RICHMOND, Va. — A South Carolina law covering abortion providers does not violate church-state separation by requiring clinics to make clergy available for counseling, a federal appeals court ruled yesterday.

The three-judge panel of the 4th U.S. Circuit Court of Appeals also ruled that the law doesn't violate patients' privacy rights by allowing state inspectors access to all clinic records.

The 2-1 decision by the 4th Circuit panel reversed a lower court ruling on the privacy issue. It upheld part of the earlier ruling that said the clergy counseling and other abortion clinic regulations were constitutional.

In challenging the regulations, two clinics argued that a provision requiring them to make clergy available for counseling coerced participation in religion and violated the constitutional separation of church and state. The appeals court panel, however, disagreed.

"This section would appear at most to require a clinic to accommodate the request of patients to exercise religion, a right also protected by the First Amendment," Judge Paul V. Niemeyer wrote.

The abortion providers also argued that the confidentiality of patient information was vital because women seeking abortions could face harassment. However, the appeals court noted that the state was required to keep patient records confidential.

"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," Niemeyer wrote.

The clinics also claimed the law illegally gave hospitals the power to determine whether a physician could obtain a license to perform abortions. Under the law, doctors who want to perform an abortion must have arrangements with a physician who has admitting privileges at a hospital in case of emergency.

The appeals court said the provision was "so obviously beneficial to patients" that it could not rule it unconstitutional.

The court also rejected the clinics' argument that the regulations, which cover standards ranging from door widths to air flow, were unconstitutionally vague.