But she may testify under the alias Dr. Doe rather than by her real name.
From today’s ruling issued by Judge Richard Mark Gergel of the District of South Carolina in Bingham v. Wilson:
Plaintiffs, acting on behalf of several South Carolina physicians, filed a suit seeking both injunctive and declaratory relief against South Carolina’s Abortion Ban…. [Plaintiffs] requested an order: “(1) mandating that all attorneys and witnesses refer to Dr. Doe by her pseudonym at trial; (2) excluding the public and press from the courtroom during Dr. Doe’s testimony; and (3) allowing limited redactions to the trial transcript to conceal any educational or professional information that could indirectly disclose Dr. Doe’s identity.” Defendants did not submit any briefs opposing the current Motion….
The court declined to seal the trial during Dr. Doe’s testimony:
The Supreme Court has stressed that “[t]he Bill of Rights was enacted against the backdrop of the long history of trials being presumptively open[,] … [and] historically both civil and criminal trials have been presumptively open.” … “For many centuries, both civil and criminal trials have traditionally been open to the public” ….
“The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.”
Applying these principles, the Supreme Court held that the right to a public trial may yield to a complete sealing of the courtroom if: (1) the party seeking closure demonstrates an overriding interest likely to be prejudiced; (2) the closure is no broader than necessary to protect that interest; (3) reasonable alternatives to closing the proceeding are considered by the trial court; and (4) the trial court makes findings adequate to support the closure…. When a party seeks only a partial closure of the courtroom, such as “an exclusion limited to a portion of the hearing,” a “less demanding” test applies, permitting closure if the moving party demonstrates “a substantial reason” rather than an “overriding interest” justifying the closure….
[T]he Court will not close the courtroom during Dr. Doe’s testimony. Here, there are not sufficient circumstances to warrant closing the courtroom given the public’s right of access and interest in these proceedings, particularly given the nature of this case. As noted above, civil trials are presumptively open and serve as a cornerstone of our democratic process of government, as open proceedings “embody a view of human nature, true as a general rule, that judges, lawyers, witnesses, and jurors will perform their respective functions more responsibly in an open court than in secret proceedings.” …
The Court recognizes Dr. Doe’s safety concerns as serious. Yet it finds the public’s entitlement to access remains compelling in this matter, and that alternative measures can sufficiently protect her safety without closing the proceedings. Accordingly, the Court will not seal the Courtroom during Dr. Doe’s testimony….
Nevertheless, it allowed her to proceed as Dr. Doe at trial:
[Abortion] is a contentious issue and there is a lengthy “national history of harassment and violence toward abortion care providers.” Women’s Health Ctr. of W. Virginia v. Sheth (S.D. W. Va. 2023) (granting an abortion provider’s motion to proceed pseudonymously because “retaliation is a real concern” for abortion providers and there is a serious risk of “harassment, threats, or other retaliatory action taken by opponents of abortion access”); see Roe v. Aware Woman Ctr. for Choice, Inc. (11th Cir. 2001) (holding that plaintiffs in abortion cases may be allowed to proceed anonymously and collecting authorities). Moreover, the Court finds Dr. Doe’s expressed fear of retaliation against herself compelling since she has previously received threatening correspondence and has been doxed by anti-abortion activists…. [This] risk of physical harm weighs in favor of permitting her to proceed anonymously….
[The plaintiff’s claim is strengthened] by her stated wish to shield her children from harassment and retaliation by staying anonymous.
The [claim against the government] weighs in the plaintiff’s favor because “[a]ctions against the government do not harm its reputation, whereas suits filed against private parties may damage their good names and cause economic harm.” … [And] the threat of prejudice to the Defendants would be minimal since Dr. Doe has continued to proceed anonymously to this point and there is no danger of jury confusion in a nonjury (bench) trial. See James v. Jacobson (4th Cir. 1993) (noting concern that the jury’s awareness of pseudonyms could potentially “validate” the plaintiff’s claims); Doe v. Ayers (9th Cir. 2015) (acknowledging the risk that use of pseudonyms might influence the jury in favor of the anonymous party). Based on the circumstances of this case, the Court concludes that Dr. Doe’s stated interests in safeguarding herself from retaliation and harassment can be balanced with the public’s interest in open judicial proceedings by permitting her to proceed under a pseudonym at trial.
And the court also determined that it would “partially redact the portions of the transcript that could indirectly identify Dr. Doe”:
Furthermore, the Court finds that redacting selected parts of the trial transcript is an appropriate alternative to sealing the entire transcript. This approach appropriately balances the public’s right to access judicial records and proceedings with Dr. Doe’s safety interests. This is especially true because the public’s right to obtain Dr. Doe’s educational and professional information is limited, particularly given the Court’s decision to permit anonymity for safety reasons. Moreover, the public will retain access to trial records except for Dr. Doe’s identity and the information that could reveal her. The Court also believes that this is a reasonable alternative to closing the proceedings and would be no more extensive than necessary. Consequently, the Court concludes that the same safety goals achieved by closing the Courtroom can be accomplished through the alternative of allowing Dr. Doe to proceed anonymously and by redacting portions of the transcript….
Thus, it is ORDERED that counsel and witnesses refer to Dr. Doe by her pseudonym at trial, and that the trial transcript be partially redacted to conceal any educational or professional information that could indirectly reveal Dr. Doe’s identity. However, the Court will not close the Courtroom during Dr. Doe’s testimony….
This leaves open the possibility that a spectator who recognizes Dr. Doe could spot her in court and publicly identify her—nothing in the order prohibits that—or that identifying details voiced during the trial could be publicized by a spectator even if they are redacted from the transcript. But the judge apparently deemed this risk modest and justified it in light of preserving public access to the trial.
