COLOMBIA – A federal judge temporarily lifted the abortion ban in South Carolina on February 19, the day after Governor Henry McMaster signed the measure.
U.S. District Judge Mary Geiger Lewis granted a 14-day temporary restraining order blocking the ban and said she would renew the order when it expired before a March 9 hearing on a broader injunction.
Lewis’ order means that the law that prohibits most abortions in the state is no longer in effect as longer legal proceedings begin, a process that, legal experts say, could take years. Lewis’ six-page request referred to the ban as “totally unconstitutional”.
The legislation, known to its supporters as the “fetal heartbeat” bill, would ban abortion after about six to eight weeks of pregnancy. McMaster’s signature added South Carolina to nearly a dozen other states that have passed similar bills, all of which have gone into court and are not in force.
At an hour-long hearing on planned Parenthood and the Greenville Women’s Clinic’s request for a temporary restraining order, Lewis repeatedly questioned a lawyer representing SC Attorney General Alan Wilson’s office about how the state could reconcile the ban with the precedent of the US Supreme Court that women have a constitutional law right to access abortion.
Lewis and Julie Murray, a lawyer who represents Planned Parenthood and the clinic, noted that the Supreme Court held that women have the right to choose to have an abortion to the extent that a fetus can be viable outside the womb, which is usually considered after 24 weeks of gestation.
“This is how the law is,” said Lewis, adding that she has no authority as a district judge to “create the law”, just to enforce it as is.
Lewis pointed out that the South Carolina proposed ban is nowhere near what the current Supreme Court precedent allows.
“I mean, my God, we’re not talking about a week or two” before viability, said Lewis. “We are talking about long before viability, months before.”
South Carolina Deputy Attorney General Emory Smith argued that the law is “in a state of change” and a new Supreme Court with a different composition could decide to reverse the court’s precedent in the historic Roe v decision. 1973 Wade.
Three of the current judges have been appointed by former Republican President Donald Trump in recent years.
Lewis, who was nominated by former President Barack Obama in 2011 and confirmed to the federal bench in 2012, said the future of abortion law is not up to her to determine.
“In the meantime,” said Lewis, “a lot of damage can happen.”
Smith did not dispute that a six to eight week ban is long before a fetus is viable outside the womb. But he has repeatedly noted that the Supreme Court has not yet ruled on similar “fetal heartbeat” legislation in other states, some of which are now on appeal.
The state will not be able to appeal the temporary restraining order, but it will be able to appeal if Lewis grants the more permanent injunction on March 9.
Lewis expressed skepticism that any argument from the state could prevent this injunction, although she said she would give until March 2 to present documents exposing her case.
“I don’t think there is anything else that can help me,” said Lewis.
Murray said Planned Parenthood will seek a summary judgment to overturn the law forever, a decision that can also be appealed.
After the decision, Wilson said he believed the ban “is constitutional and deserves a vigorous defense in the U.S. Supreme Court, if necessary”.
“Each generation has the right and the duty to revisit issues as important as this one,” said Wilson. “The Heartbeat Law protects life. Nothing is more important or fundamental. Today’s temporary restraining order is only a first step, but the legal struggle has just begun.
Malissa Burnette, one of the lawyers representing Planned Parenthood and the Greenville Women’s Clinic, said there was always the possibility that the Supreme Court could reverse Roe v. Wade.
“But I don’t think (the Attorney General’s Office) should count their chickens before they hatch,” Burnette said, “because that court, with Republican nominees, has already surprised some people with its law-based rather than political decisions. “
The passing of the law caused planned paternity to temporarily stop its abortion services in South Carolina. Murray said that passing the law “threw abortion services in the state into chaos”.
If the law were not blocked, Murray said abortion providers would have to cancel 60 consultations in the next few days.
“Today, abortion remains safe and legal in South Carolina, and the plan by politicians to restrict access to health care has failed,” said Jenny Black, CEO of Planned Parenthood South Atlantic. “Gov. McMaster: The people of South Carolina need a COVID-19 plan, not a ban on abortion. Our patients deserve more from their elected leaders.”
McMaster tweeted that the state would “defend this law every step of the way”.
“No process can weaken our determination to fight for life,” said McMaster.
About 55% of abortions in South Carolina are performed after six weeks of gestation, according to 2019 data from the state health department.
The face-to-face hearing in the federal court had a socially distant hearing of just 12 people, mostly reporters. In an episode that reflects the experience of the coronavirus pandemic, Murray faced a few minutes of technical difficulties while trying to participate in the hearing virtually by videoconference, but the problems were eventually resolved.
Planned Parenthood South Atlantic spokeswoman Molly Rivera said the organization suspended its abortion services at clinics in Columbia and Charleston after the project was sanctioned, but planned to resume after the court’s decision.
There is only one other abortion clinic in South Carolina, the Greenville Women’s Clinic.
An official told the Post and Courier on February 19 that they had not stopped their abortion services, but a spokeswoman later said that they had actually stopped abortion services and were forced to refuse patients after the law was signed. . The clinic will now resume abortion services after the law was suspended in court, the spokeswoman said.
Doctors who break the law would be guilty of a crime, subject to a $ 10,000 fine and a maximum prison term of two years.
Current South Carolina law prohibits abortion after about 20 weeks, but links the age of the fetus to conception, rather than the woman’s monthly cycle. Since that date cannot be scientifically determined, the ban actually refers to what doctors consider a gestational age of 22 weeks.
Wilson’s office also represented two of the other defendants named in the lawsuit, 9th Circuit solicitor Scarlett Wilson and 13th Circuit solicitor Walt Wilkins, who were included because of abortion clinics in their respective Charleston and Greenville jurisdictions.
But the third local attorney named in the lawsuit, Columbia’s 5th circuit attorney Byron Gipson, represented himself in court and said his office is not opposed to the temporary restraining order or injunction.