A closer look at South Carolina’s new abortion law and its legal challenge | WFAE 90.7

South Carolina Governor Henry McMaster signed a bill last week that would ban abortion once a heartbeat is detected – something that could happen in six weeks. There are exceptions, including rape, incest or if a woman’s health is at risk.

At least 11 states have passed similar bills, but all are tied up in the courts, preventing them from taking effect. In South Carolina, Planned Parenthood sued shortly after the bill was approved, and on Friday, a federal judge temporarily suspended the law.

Mary Ziegler, professor at Florida State University and author of “Abortion and the law in America: Roe v. Wade to the present ”, joins Marshall Terry of WFAE to talk about South Carolina law and its legal challenge.

Marshall Terry: What are the arguments for and against so-called heartbeat laws?

Florida State University

Mary Ziegler: Well, I think the constitutional argument for the heartbeat bill is essentially that the Supreme Court has been wrong about the abortion law for the past nearly 50 years. Therefore, it has not gone unnoticed by South Carolina lawmakers that, according to current Supreme Court jurisprudence, this bill is unconstitutional. Roe v. Wade and the cases that followed, including Planned Parenthood v. Casey, maintained that there was a right to choose abortion before fetal viability, which is usually quite late in pregnancy. And, of course, these laws prohibit all abortions, depending on when someone realizes they are pregnant, or most abortions, definitely before viability.

And lawmakers know that they are, therefore, partly designed to be a vehicle for overthrowing Roe. Therefore, the arguments in favor of the bills are essentially that Roe is wrong and that there is no constitutional right to abortion. The arguments on the other side of Planned Parenthood are basically that these projects go against decades of Supreme Court precedent when it comes to abortion and the Constitution.

Terry: And, as I mentioned earlier, other states have passed similar bills. How do these other bills and other states compare to what Governor Henry McMaster of South Carolina signed last week?

Ziegler: Well, South Carolina, I think – not necessarily because of Governor McMaster, but because of some legislators, mainly in the (state) Senate – was classing this as a more moderate bill, because it has the exceptions you mentioned . Therefore, some other heartbeat bills or even some legislation such as Alabama’s absolute ban have no such exceptions. So, I think South Carolina lawmakers are trying to position the heartbeat bills as the new mainstream, and this particular heartbeat bill as a potentially more palatable alternative to some of the laws we’ve seen come under books in 2019.

Terry: Planned Parenthood filed its lawsuit immediately after the South Carolina bill was approved. A federal judge suspended it until March 9. What could happen after that?

Ziegler: Well, what we would expect to happen would be that there would be a trial in the federal district court, at the end of which the district judge would really have no choice but to say that the law is unconstitutional as it is today. So we would expect South Carolina to appeal that decision to the (US Circuit Court of Appeals 4th Circuit). And the 4th Circuit, again, would have no choice but to say that the law is unconstitutional. So, of course, the real money question is whether the US Supreme Court would decide to hear the case.

Mark Thomas

And the reason this is more ambiguous is because the US Supreme Court is under no obligation to try any cases. So it’s not clear whether the high court would agree to hear the South Carolina case, whether the high court has any interest in heartbeat designs, really, and if so, whether there was anything about South Carolina that captured it. o Judges’ attention, because, of course, there are many heartbeat laws on the way if this is a path that the court seems interested in following.

Terry: Where are these bills in other states and the legal process at the moment?

Ziegler: Many of them are working on the pipeline. Georgia’s may be the most advanced. He is addressing the 11th Circuit Court of Appeals. And all of this speaks for the fact that this process takes a while. Optimistically, of course, South Carolina is likely to take a few years before there is an opportunity for the United States Supreme Court to accept this case because that litigation takes time. And, of course, it also requires a considerable amount of money.

Terry: You said earlier that there is no clear sense if the US Supreme Court is even interested in dealing with this issue. Given former President Trump’s three court appointments, however, there is a sense of what would happen to Roe v. Wade if one of those laws got to court?

Ziegler: There is a “if” question and a “when” question. So certainly, the state legislators who read the room see six judges appointed by conservatives, including three, as you mentioned, by President Trump. And they think it almost creates an insurance policy because the court’s president, Roberts, over the summer, seemed to hesitate when asked to walk away from Roe. I think lawmakers now believe that they no longer need Roberts because they have five conservatives in the bank, if you prefer.

I think it’s premature to say that, simply because when Brett Kavanaugh was confirmed, state lawmakers in places like Georgia believed they had five judges on the bench, too, and it turned out that the picture was not that clear. So, I think what the court really does is yet to be seen. I am still inclined to think that the court will withdraw from abortion rights and perhaps even annul Roe.

The big question is how fast, because if the court is inclined to accept this type of pass, but to do it incrementally, it introduces much more uncertainty. Because the more time that passes, the more you can have unexpected retirements or deaths, the more you can even have additional judges added to the court or some other type of court reform. So, the more uncertain, in other words, Roe’s fate becomes, and I still don’t know if it’s smart to bet even on a court like this conservative getting rid of Roe very quickly.

Terry: Mary Ziegler, thanks for joining us.

Ziegler: Thanks for receiving me.

Mary Ziegler is a professor at Florida State University and the author of “Abortion and the law in America. Roe v. Wade to the present.”