SC ‘fetal heartbeat’ anti-abortion law faces new test in federal court Monday

A hearing has been set for Monday on whether a federal judge should issue a preliminary injunction prohibiting the State of South Carolina from putting into effect its new “fetal heartbeat” anti-abortion law.

Lawyers for Planned Parenthood South Atlantic and Greenville Women’s Clinic plan to ask U.S. Judge Mary Lewis on Monday to issue a preliminary injunction, according to court filings. The two groups run the state’s three abortion clinics, located in Charleston, Columbia and Greenville.

If Lewis issues a preliminary injunction, it would make more permanent the temporary restraining order that Lewis put in place on Feb. 19 prohibiting the state from allowing the measure to take effect. The three clinics are now providing the usual range of women’s health services including abortion.

A preliminary injunction would also make it possible for the state, represented by State Attorney General Alan Wilson, to appeal the injunction to the 4th Circuit Court of Appeals, the next rung on the federal judicial ladder. From there, the case could be appealed to the U.S. Supreme Court. Wilson is a defendant in the case.

South Carolina’s new anti-abortion measure is one of the nation’s strictest, banning nearly all abortions after an embryo’s heartbeat can be detected, which could be as early as six weeks into a pregnancy. Critics contend that many women don’t even know they are pregnant then and the law doesn’t give women who would seek to terminate a pregnancy enough time to take action.

The measure was signed into law on Feb. 18 by Gov. Henry McMaster after being passed by South Carolina’s staunchly conservative Republican-controlled Legislature.

South Carolina’s law also criminalizes most abortions after as early as six weeks into a women’s pregnancy and provides for a two-year maximum prison sentence for any doctor who performs an illegal abortion. It also requires doctors to report to a sheriff if the embryo was the result of incest or rape.

The new law conflicts with a nearly 50-year-old precedent established by the U.S. Supreme Court. In 1973, that court ruled in the landmark Roe v. Wade case that women have a constitutional right to an abortion for up to six months of pregnancy. At that point, a fetus is “viable,” meaning it can live outside the mother’s body.

Most abortions take place in the early stages of pregnancy. The S.C. health groups in this lawsuit only provide abortion services in the first three months of pregnancy, long before the fetus is viable, their court filings say.

In prohibiting the law from going into effect last month, Judge Lewis called the law clearly unconstitutional and amplified that finding in a written order.

“The (U.S.) Supreme Court has held that a state may not ‘prohibit any woman from making the ultimate decision to terminate her pregnancy before viability,’ ” wrote Lewis, citing dozens of court decisions that upheld her ruling. “Courts have ‘universally’ invalidated laws that ban abortions beginning at a gestational age prior to viability.”

In her decision, Lewis also cited existing South Carolina law, which says that a fetus’s viability “occurs no sooner than the twenty-fourth week of pregnancy.”

Another new dimension to the court battle is that lawyers for McMaster and House Speaker Jay Lucas, R-Darlington, are weighing in on the case and have filed documents urging Judge Lewis to find the new law constitutional.

In a court filing, McMaster — who favors the law — said he wanted to intervene in the case because the judge’s ruling “directly intrude(s) on the Governor’s constitutional obligation to consider and approve pending legislation.”

In a court filing, Lucas said his office represents the right of the Legislature to enact laws for the health and safety of the state’s citizens and “contemporary medical research” has established that the “presence of a heartbeat is ‘a key medical predictor’ that an unborn human individual will reach live birth.”

Lucas said he “intends to present a factual record that would support these findings and the ultimate constitutionality of the challenged statute,” his filing said.

In the Feb. 19 hearing, State Attorney General deputy solicitor general Emory Smith told Judge Lewis that it is possible the new mix of conservative justices on the U.S. Supreme Court would lead to a high court decision that overturned existing abortion laws about a woman’s right to choose.

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.”

Smith was referring to former President Trump’s appointment of three conservative justices — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — to the U.S. Supreme Court during his four years in office. Many conservatives believe the trio will join two other conservative justices — Samuel Alito and Clarence Thomas — to make a five-justice majority on the nine-member court that will overturn Roe v. Wade.

The plaintiffs in the case made clear their strong opposition to the new law in their lawsuit.

“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 abortions” the complaint said. “Its adoption of this law is in flagrant violation of nearly five decades of settled Supreme Court precedent.”

In addition to the two women’s health care groups, Terry L. Buffkin, a board-certified obstetrician-gynecologist who provides a range of reproductive health care to patients including abortion, is also a plaintiff in the case.

The lawsuit says, “Abortion is also very common: Approximately one in four women in this country will have an abortion by age forty-five.”