South Carolina’s heartbeat ban marks the next era of abortion battle under Biden

South Carolina’s heartbeat ban marks the next era of abortion battle under Biden

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Experts and advocates on both sides of the corridor suggest that Biden’s appeal is largely limited to supporting federal abortion legislation, appointing federal judges who support abortion rights and verbally endorse access to abortion.

South Carolina’s heartbeat law – SB1, the first of the session – prohibits abortions in detecting fetal heartbeat, which can occur in the first six weeks of pregnancy and before many people know they are pregnant. Includes exceptions for rape, incest – both of which doctors must report to the county sheriff within 24 hours – medical emergencies and fetal anomalies. It also requires that providers of abortion perform an ultrasound and display the image to the pregnant woman and “ask the woman if she would like to hear the heartbeat”, if audible – a medically unnecessary requirement that the Supreme Court has previously allowed effect in other states.

In many ways, the South Carolina measure could predict the legal battles that potentially await the Biden government. With an already open process seeking to block the new law, the impending legal struggle exposes the limited options the government has to oppose state restrictions that could threaten Roe. CNN has repeatedly asked the Biden government for comments on the South Carolina bill and its possible ways to combat such legislation.

Compared to 2019, the latest heartbeat bans, such as the South Carolina brand “kind of normalized what once seemed like some kind of extreme anti-abortion strategies,” said Mary Ziegler, a law professor at Florida State University and author of “Abortion and the Law in America: Roe v. Wade to the Present.” They serve “not only as a strategy for reaching a conservative Supreme Court, but perhaps also as a preview of what conservative lawmakers would do if Roe v. Wade if it was, “she added.

Limited intervention options

Passing a federal abortion law is an option for federal Democrats, but “it doesn’t seem to be a priority,” added Ziegler, noting that “it would be difficult because of (the) majority that Democrats have in the Senate, and it would also be difficult because there are many competing priorities for Congress now, given the pandemic and the state of the economy and many other things “.

One such project is the 2019 Women’s Health Protection Act, which would create a standard for access to abortion, including the right to pre-viable abortion – a provision that would counteract heart beat laws like South Carolina’s – and won dozens of co-sponsors in the House and the Senate.

“This is the legislation that we hope and call on the Biden government to defend,” said Jackie Blank, federal legislative strategist at the Center for Reproductive Rights, adding that “this really is an area for Congress to intervene” with proactive actions in opposition to the efforts to combat restrictions on abortion through

In terms of being actively involved in a case before the Supreme Court that could threaten Roe, the attorney general could instruct the attorney general to file a petition in court in support of the abortion advocates who are presenting the case, or the Attorney General could be asked to present the government’s position in oral arguments, said Steven Aden, chief legal officer and general counsel for the anti-abortion group Americans United for Life.

“There are really few options in the constitutional system for the president and his government to force their position on this issue,” said Aden.

Some Democrats, furious at the Senate Republicans’ decision to reconcile Trump’s third Supreme Court conservative, Amy Coney Barrett, so close to the November election, suggested expanding the court – adding more seats to the nine-member bench to offset the current conservative domain.

Biden told CBS’s 60 Minutes program in October that, if elected, he would form a bipartisan commission to recommend changes to the Supreme Court, noting that “it is not about packing the court”. Moderate Democratic Senator Joe Manchin has said he would not support the expansion of the Supreme Court, reducing hopes of curbing the conservative bias of the court.

A lower priority – for now

Regardless of the Senate’s logistics, there may be no support for packaging the court as a means of protecting Roe until the precedent has already been overturned – a dynamic that judges can take into account when considering such projects, said Ziegler.

If the court overturns Roe, “Democrats would be totally willing to fill the court because there would be a reaction – many voters would be upset, people would be angry at the Supreme Court and that would put abortion at the top of the agenda,” she said. “But I don’t think this has gone unnoticed by Supreme Court conservatives either. So I think the threat of packaging from the court is unlikely to materialize, but it will probably weigh on the Supreme Court and can really shape what they are doing.”

Marjorie Dannenfelser, president of the anti-abortion group Susan B. Anthony List, said the government is “only one factor in that it will continue to fight to end the obstruction and package the Supreme Court”, or to act on the promise of then-candidate Kamala Harris during the campaign require Department of Justice approval for state restrictions on abortion.

“You didn’t see this president or even Kamala Harris in the middle of his campaign, making it a priority,” said Dannenfelser of the government’s position on abortion. “So I’m not saying that they aren’t going to move on. They just don’t speak up and are proud of it. And they’re not, and it’s not at the level of the other pieces of legislation that they really want to pass.”

Biden signed a presidential memorandum last month reversing the so-called Mexico City Policy, a US government funding ban for foreign nonprofits that perform or promote abortion, and directing the Department of Health and Human Services to take immediate action. to consider rescinding the Trump government rule block Health care providers in the federally funded Title X family planning program refer patients for abortions.
But his promises during the campaign and have since extended further, to code Roe and direct the Justice Department to “do everything in its power to stop” such restrictions on abortion. And many abortion rights advocates have asked the Biden government to go further in their efforts to protect reproductive rights, demanding the repeal of the Hyde Amendment – which prohibits federal funding from covering abortions, except in cases of rape, incest or when The woman’s life is at risk – and the demands surrounding abortion drugs that have recently been reinstated by the Supreme Court.

The Biden government can still work to prevent state bans before the Supreme Court, as many abortion bills do not reach judges, but are decided by federal judges, said Ziegler.

“I think the Biden government will do its best to define who the judges are, what kind of priorities they have and who in the appellate courts, which are often the last stop on abortion legislation,” she said.

Legal battles fought in

Of the nine so-called gestational bans – which prohibit abortions after a certain point in pregnancy – passed in 2019, none came into force after most of them were blocked by judges. The South Carolina bill has already elicited a similar response to its predecessors from advocates of abortion rights.

Planned Parenthood and the Reproductive Rights Center contested the bill on behalf of several South Carolina abortion providers on Thursday after the House approved it, but before the governor signed it, asking a federal judge to block the law.

Planned Parenthood President and CEO Alexis McGill Johnson told CNN ahead of the process that, despite support from federal partners, “access to abortion will face its greatest threats in the states”, urging the Biden government to take concrete steps in the Amendment Hyde, medication abortion requirements and federal abortion legislation, but also take a vocal stance on the issue in general.

“As the government tends to use the aggressive pulpit to essentially locate abortion in the health area where it should be, and end it as a bargaining chip in negotiations, I think it really does more to help us get involved in legislative struggles at the state level as well as at the federal level, “said McGill Johnson.

This comprehensive situation did not go unnoticed by the defenders of the State of Palmetto. South Carolina Rep. John McCravy, a Republican who sponsored the project in the House and introduced it for the first time last year, before Covid arrived, cited what Biden has done about abortion as a motivator to move the project forward.

“I think you see outrage in my area that we have gone from moderate to – which we disagree with – to absolute left-wing abortion at any cost, anywhere, anytime,” he said. “And it really ignited the masses, I think now they see that their eyes have been opened to what this government is trying to do. And it makes it all the more urgent that we step back from that.”

Ann Warner – executive director of the Women’s Rights and Empowerment Network in South Carolina, who campaigned against the measure – accused many of the proponents of this bill of being willing to “put not only people’s lives at risk, but also just spend resources that we don’t have and we can’t spend defending an unconstitutional bill like this. “

“We are certainly seeing a government that is much more in favor of reproductive rights, reproductive justice, reproductive freedom at the national level,” she said. “But here in South Carolina and in some other southern states, we are seeing real resistance to that.”

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