The U.S. Supreme Court on Monday refused to
hear a challenge to legislation requiring that South Carolina abortion
providers allow state inspectors to copy patients' medical records and
remove them from clinics.
The Supreme Court's refusal closed the door on an eight-year battle
that has delayed putting into effect 1995 legislation regarding a long
list of rules governing abortion clinics.
Trey Walker, spokesman for the South Carolina attorney general's
office, said he was pleased the legal challenges were finished.
"The state regulations are reasonable health and safety measures that
do not infringe on anyone's constitutional rights," he said.
Attorneys, counselors and women's advocates, however, said the result
could harm women physically and psychologically and open the door for
release of other health care information.
"It will definitely have an impact," said Jennet Robinson Alterman,
executive director of the Center for Women, a nonprofit information and
referral agency in Charleston. "It's opening up a whole area of patient
privacy and confidentiality, and where does it stop?" she asked.
"It is one more effort to have a chilling effect on reproductive
freedom," said George Johnson, chairman of Planned Parenthood of South
Carolina.
The case, Greenville Women's Clinic vs. S.C. Department of Health and
Environmental Control, arose from the state Legislature's move in 1995 to
change the way abortion clinics are regulated on grounds they could make
abortion clinics safer and better protect patients' health.
DHEC drafted the rules for any office performing first-trimester
abortions. The rules govern everything from how clinic employees are hired
to the width of doorways to airflow to pest control. Three abortion
providers, including the Greenville clinic and the Charleston Women's
Medical Center, quickly sued.
Initially, the case focused primarily on whether the regulations made
it unreasonably difficult for women to obtain abortions. The plaintiffs
also argued that the 27 pages of rules significantly raised abortion
costs.
State attorneys argued successfully that the regulations were meant to
protect the health of women seeking abortions.
The case eventually made it to the doorsteps of the U.S. Supreme Court,
but the court refused without comment in February 2001 to hear it. On
appeal, a federal judge ruled against the contention that the rules were
unconstitutional and medically pointless. But he agreed with concerns
about patient privacy.
South Carolina is the only state whose law allows regulators to see,
copy and store abortion patients' medical records without stiff
requirements that the information be kept confidential, lawyers
representing the clinic and outside medical organizations said.
"Confidentiality is vital to women seeking abortions because they may
face harassment and violence from their partners or others for having
decided to undergo an abortion," lawyers for the clinic wrote in a court
filing.
Lawyers for the state, on the other hand, argued the requirement is
part of ordinary government record keeping.
The privacy issue went on to the 4th U.S. Circuit Court of Appeals. A
divided appeals court panel ruled 2-1 in September 2002 that allowing
state inspectors access to abortion records did not violate patient
privacy.
The U.S. Supreme Court was asked to hear the privacy issue. Its refusal
to do so ends the lengthy legal battle that put the law on hold.
"Because it is a legal issue, our attorneys will want to read and
review today's events before they issue a statement," DHEC spokesman Clair
Boatwright said, adding that it was unclear when the regulations would
take effect.
Rep. John Graham Altman, R-Charleston, welcomed the news Monday and
said the state legislation may go into effect as early as today, as soon
as the Supreme Court formally notifies the state.
Altman, an attorney who said he does not support abortion, added, "I
think this does show DHEC and the Legislature were correct in saying this
is for medical and health purposes and not for political purposes."
He described abortion rights as a hot-button issue. The courts should
let states pass their own legislation, he said.
Women's Center counselor A.C. Holler disagreed. "It means an end to
women's having a voice over their own health and safety. ... It will
change the way we counsel woman," limit access for poor women and force
wealthier women to go out of state.
Holler and Johnson said the state legislation goes counter to a federal
privacy act that took effect April 14.
Area doctors are handing out summaries of their "privacy practices" and
asking patients to sign an acknowledgement of receipt. The details include
a patient's rights to privacy, uses of medical information, disclosures
that do or do not require a patient's written authorization.
"On one hand," Johnson said, "we have the federal government invoking
hard, new privacy rules, and this court decision seems to be going in the
opposite direction. It seems like a contradiction."
South Carolina wants abortion clinics to open all files, including
patient medical records, if state investigators ask to see them.
The Greenville clinic contends there is no guarantee that information
will remain confidential once it is in state hands and no penalty if the
information is leaked.
"If you put this information out there, anti-choice activists are going
to get hold of that information and use it," said Bonnie Scott Jones, a
lawyer with the Center for Reproductive Rights, which represents the
clinic. "It poses a very great danger to women."
Barbara Derrick, director of the Women's Center in Summerville, called
it a "terrible blow."
"A woman's psychological and even physical well-being is at stake,"
Derrick said, adding that some of the women she counsels are in abusive
relationships that are not safe for the women or her unborn child.
Wyndi Anderson, executive director for South Carolina Advocates for
Pregnant Women, said the law sets a precedent that could undermine all
patients' rights to confidential medical care.
"This is really a dangerous, dangerous policy when the fundamental
right to patient-doctor confidentiality is not upheld," she said from her
Washington, D.C., office.