South Carolina Abortion Restriction May Be Void for Vagueness, But Doesn't Violate Free Exercise Clause

From Bingham v. Wilson, decided today by Judge Richard Gergel (D.S.C.):

In the wake of Dobbs v. Jackson Women’s Health Organization (2022), the South Carolina Legislature enacted a ban on abortions after nine weeks of pregnancy. The Act [criminalizes] “perform[ing] or induc[ing] an abortion on a pregnant woman with the specific intent of causing or abetting an abortion” if an embryonic or “fetal heartbeat” has been detected on an ultrasound…. The Act contains three exceptions where abortions may be performed after nine weeks of pregnancy:

• the “Health Exception,” which exempts abortions performed “to prevent the death of the pregnant woman,” where the physician determines that a “medical emergency” exists, or “to prevent the serious risk of a substantial or irreversible impairment of a major bodily function, not including psychological or emotional conditions”;
• the “Fatal Fetal Anomaly Exception,” which exempts abortions after a physician determines in his or her “reasonable medical judgment, the unborn child has a profound and irremediable congenital or chromosomal anomaly that, with or without the provision of life-preserving treatment, would be incompatible with sustaining life after birth”; and
• the “Rape or Incest Exception,” which allows a physician to “perform, induce, or attempt to perform or induce an abortion” if the pregnancy was the result of rape or incest and “the probable gestational age of the unborn child is not more than twelve weeks” after the first day of the patient’s last menstrual period (“LMP”) and where the physician “report[s] the allegation of rape or incest to the sheriff in the county in which the abortion was performed” within 24 hours of performing the abortion” including the patient’s name and contact information.”

“As a matter of due process, a criminal statute that ‘fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute’ … or is so indefinite that ‘it encourages arbitrary and erratic arrests and convictions,’ … is void for vagueness.” …

Plaintiffs contend that “two features of the Health Exception render South Carolina’s Abortion Ban unconstitutionally vague: 1) ‘serious risk’ is so standardless that it is very difficult to determine how likely an impairment must be to qualify, and 2) ‘substantial and irreversible impairment of a major bodily function’ has no inherent meaning in medicine, leaving Plaintiffs with inadequate notice of which dangerous health conditions the Exception covers.” With regards to the Fatal Fetal Anomaly Exception, Plaintiffs complain that two terms— “incompatible” and “sustaining life”—”provide no meaningful standards to assess which fetal conditions qualify under the [Exception].” Per Defendants, the statute’s instruction that “[a] doctor must determine that this exception is met based on ‘standard medical practice’ and ‘reasonable medical judgment’” allows room for more than one “correct medical decision in any case,” such that it is “not necessarily true” that there is a right answer as to whether a risk constitutes a “serious risk” under the Health Exception. They argue further that “many perfect constitutional statutes use imprecise terms” such that the “legislature[] need not write in medical jargon.”

The Court considers that Plaintiffs have stated a plausible claim for relief at this stage of the litigation. Here, the South Carolina Abortion Ban subjects medical professionals to criminal penalties and is vigorously enforced. Defendants make much of the fact that the words used throughout the statue, such as “substantial,” “irreversible,” “impairment” and “major bodily function,” are “readily understood” terms.

But, taking the allegations in Plaintiffs’ Complaint as true, the use of terms that are not commonly employed by medical professions in their practice fails to provide Plaintiffs fair notice of what conduct falls outside the Health and Fatal Fetal Anomaly exceptions and potentially subjects them to potential criminal liability and the loss of their medical licenses. The Court denies Defendants’ motion to dismiss Plaintiffs’ claims brought under the Due Process Clause….

But the court rejected the separate Free Exercise Clause challenge:

“The right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’” Employment Division v. Smith (1990). Plaintiffs’ theory is that “South Carolina has made a value judgment that secular (e.g., procreative) motivations for ending a potential life are important enough to overcome its asserted general interest in preserving it, but that religious motivations are not.” Accepting Plaintiffs’ argument would require this Court to accept that the performance of abortions is a religious practice protected by the Free Exercise Clause of the First Amendment. The facts of the present case bears analogy to Employment Division v. Smith, where the Supreme Court reasoned:

[Respondents] contend that their religious motivation for using peyote places them beyond the reach of a criminal law that is not specifically directed at their religious practice, and that is concededly constitutional as applied to those who use the drug for other reasons. They assert, in other words, that “prohibiting the free exercise [of religion]” includes requiring any individual to observe a generally applicable law that requires (or forbids) the performance of an act that his religious belief forbids (or requires).  We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.” …

Plaintiffs’ argument hinges on a finding that the Abortion Ban favors “secular conduct” over “religious conduct” by permitting limited exceptions (with the effect of undermining the State’s interest in preserving life), but prohibiting such exceptions in unenumerated circumstances where the Abortion Ban infringes upon their free religious exercise. The Court finds this argument unpersuasive. The State has a legitimate interest in both fetal and maternal health and exercised its plenary authority in enacting legislation that considers these interests. The Abortion Ban applies with equal force to individuals of all religions. Even construing the Amended Complaint in the light most favorable to Plaintiffs, Plaintiffs have failed to state a plausible claim for relief that the Abortion Ban is not generally applicable and is thus unconstitutional under the Free Exercise Clause of the First Amendment….

The plaintiffs didn’t bring a challenge under the South Carolina Religious Freedom Restoration Act, which provides,

The State may not substantially burden a person’s exercise of religion, even if the burden results from a rule of general applicability, unless the State demonstrates that application of the burden to the person is:
(1) in furtherance of a compelling state interest; and
(2) the least restrictive means of furthering that compelling state interest.

That might offer far more protection to sincere religious objectors than what federal Free Exercise Clause law currently provides under Employment Division v. Smith. And that challenge is presumably still available—but I take it that it would need to be brought in state court, since (generally speaking) federal courts can only order government officials to follow federal law, and only state courts can order state government officials to follow state law (Pennhurst State School & Hosp. v. Haldeman (1984)).

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