Federal judge blocks SC abortion ban 1 day after Gov. McMaster signed it into law

A federal judge temporarily blocked South Carolina’s new “fetal heartbeat” abortion ban Friday, a day after Gov. Henry McMaster signed the state’s restrictive new abortion bill into law in front of a crowd of enthusiastic supporters at the State House.

South Carolina’s new law — passed by Republican majorities in the S.C. House and Senate — bans most abortions after six weeks, when the law’s supporters say a heartbeat can be detected in the developing fetus. The law also also criminalizes most abortions after six weeks and provides for a two-year maximum prison sentence for any doctor who performs an illegal abortion.

At Friday’s hearing, U.S. District Judge Mary Geiger Lewis — an Obama appointee — gently reminded a top attorney from State Attorney General Alan Wilson’s office that South Carolina’s new law violates nearly 50 years of established law. In 1973, the U.S. Supreme Court ruled in the landmark Roe v. Wade case that women have a constitutional right to an abortion up to six months of pregnancy. At that point, a fetus can live outside the mother’s body.

Lewis issued a temporary restraining order, blocking the new law’s implementation for 14 days.

But she indicated the order could be renewed.

“How could you possibly square this legislation with Roe v. Wade?” Lewis asked Emory Smith, the attorney general’s deputy solicitor general.

Not only that, the judge told Smith South Carolina’s own existing state laws say a fetus is not viable outside the mother before six months.

“My God, we are talking about way before viability,” said Lewis, spreading her arms wide.

Smith told the judge “the law is in a state of flux. We have a different (U.S.) Supreme Court, your honor. It’s a different composition. ... The law may be what it is right now, but it may be different in another year.”

By that, Smith was referring to the recently-changed makeup of the U.S. Supreme Court.

The late Associate Justice Ruth Bader Ginsburg, who supported abortion rights, was replaced in late October by former President Donald Trump’s nominee Amy Coney Barrett, a conservative associate justice. Pro-life supporters hope she will be the deciding vote to overturn Roe v. Wade.

Smith also said the issue of fetal heartbeat at six weeks is a new issue that has not been decided by the Supreme Court.

Acknowledging the issue is new, Lewis told Smith that as a district judge — two judicial rungs below the U.S. Supreme Court — she is not allowed “to create new law on this subject.”

Julie Murray, an attorney for Planned Parenthood, one of several plaintiffs who filed the request for a temporary restraining order, told the judge that not only is it impossible for a fetus to live outside the mother at six weeks, “most people don’t even know they are pregnant.”

Murray also stressed that Judge Lewis had an obligation to abide by precedents such as Roe v. Wade, and that suggesting an existing law — as Smith did — might be “in flux” is not enough to deny a restraining order.

South Carolina’s new law does allow some exceptions for rape and incest, but requires that the doctor report such cases to a local sheriff, whether or not the woman wants the report to be made. It also includes exceptions for when the woman’s health is at serious risk or the fetus has a fatal anomaly.

Planned Parenthood had temporarily stopped performing abortions at its two South Carolina clinics ahead of Lewis’ ruling.

But by Friday afternoon, abortions were expected to start again, said Planned Parenthood attorney Malissa Burnette of Columbia.

Abortion providers take SC to court

On Thursday, just as the governor was set to sign the abortion bill, Planned Parenthood South Atlantic, the Greenville Women’s Clinic and Dr. Terry Buffkin filed a lawsuit in federal court.

They asserted the law was unconstitutional and requested an immediate injunction to prohibit the law from being enforced until a decision could be made on the merits of the case.

In the lawsuit, the plaintiffs said more than 75 patients were scheduled for abortion appointments in the next 72 hours.

Planned Parenthood’s clinics in Charleston and Columbia and the Greenville Women’s Clinic operate the only clinics in the state where abortions are done. Those clinics provide a wide variety of other women’s health issues as well, their lawsuit said.

“Many additional South Carolinians await services next week and in the weeks that follow,” the plaintiffs said.

Buffkin, meanwhile, is a board-certified obstetrician and gynecologist physician and a co-owner of Greenville Women’s Clinic.

He also provides a “wide range” of other health care services, the lawsuit said.

Defendants in the case include the state’s Attorney General Wilson, the state Department of Health and Environmental Control’s new director Edward Simmer, the S.C. Board of Medical Examiners President Anne Cook and members of that group’s board.

In a response, Wilson asked Judge Lewis not to make an immediate decision until the defendants can present a fully developed memorandum, with possible exhibits, supporting the denial of a preliminary injunction.

Wilson also said that in passing the bill, the General Assembly had found that a “heartbeat is a key indicator of human life. As set forth in the General Assembly’s findings the presence of a heartbeat is a sign that the fetus is highly likely to survive until live birth.”

The courts should defer to South Carolina’s General Assembly in this matter because “legislatures are better suited to make the necessary factual judgments in this area,” Wilson said in his response.

The plaintiffs’ lawsuit described the new law as “an affront to the dignity and health of South Carolinians.”

“In particular, it is an attack on families with low incomes, South Carolinians of color, and rural South Carolinians, who already face inequities in access to medical care and who will bear the brunt of the law’s cruelties,” they said. “South Carolinians face a critical shortage of reproductive health care providers,including obstetrician-gynecologists, and the rate at which South Carolinians, particularly Black South Carolinians, die from pregnancy-related causes is shockingly high.”

They continued: “Rather than working to end these preventable deaths and honoring South Carolinians’ reproductive health care decisions, the Legislature has instead chosen to criminalize nearly all abortion.”

Abortion bans tied up in court

South Carolina’s new abortion ban is among the strictest in the nation, and the state joins 10 other states with similar laws.

However, many of those laws are tied up in court.

And the U.S. Supreme Court has not made a move to hear even more expansive abortion bans.

Still, South Carolina Republicans have remained steadfast in their support of trying to get the court’s attention.

“Like I said — we will defend this law every step of the way. No lawsuit can weaken our resolve to fight for life,” Gov. McMaster tweeted after Judge Lewis’ Friday ruling.

South Carolina’s Republican leaders pushed the anti-abortion legislation as a priority this year, particularly after they strengthened their grip by flipping five seats in November. Banning abortions is a key issue favored by many Republicans.

And the installation of a new conservative Justice, Justice Barrett in late October after the death of Justice Ginsburg, who favored women’s rights to choose, has given abortion foes in South Carolina and across the nation hope that the newly-constituted high court will, at last, overturn Roe v. Wade.

Attorney General Wilson said the new law deserves a “vigorous defense to the U.S. Supreme Court if necessary.”

“Today’s temporary restraining order is only a first step, but the legal fight has just begun,” Wilson said in a statement after the hearing. “We look forward to further arguing why this law should be valid,” Wilson said.

Planned Parenthood attorney’s Burnette said Friday outside the federal courthouse in Columbia that Thursday’s signing of the bill into law was about policy and politics, but the hearing was all about the law.

“They (the politicians) celebrated prematurely,” she said.

Reporter Emily Bohatch and the Associated Press contributed.