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SC ‘fetal heartbeat’ anti-abortion law remains blocked for now

A federal judge indicated Monday she would soon issue a ruling on whether to keep in place a ban on South Carolina’s strict new law that critics say would outlaw most abortions.

But during a 40-minute hearing at Columbia’s federal courthouse, U.S. District Judge Mary Lewis did not set a specific date by which she would make a ruling on whether to impose a more permanent prohibition on the state’s new abortion law.

The new law, blocked the day after it went into effect last month, would outlaw the “vast majority” of abortions in South Carolina, right-to-choose attorney Julie Murray told Lewis during the hearing. Murray represents Planned Parenthood South Atlantic and other plaintiffs who provide abortion and women’s health care services in South Carolina. The providers sued the state last month to keep the law from being implemented.

Although Judge Lewis told lawyers that she wants to reflect on her upcoming decision, the judge’s questions and observations during the hearing appeared to leave little doubt that she was prepared to issue what is called a “preliminary injunction” that would more permanently stop the state’s new law from taking effect.

Several times, Lewis made it clear to Emory Smith, deputy solicitor general for State Attorney General Alan Wilson, that the state’s new anti-abortion law goes against nearly 50 years of U.S. Supreme Court decisions establishing a woman’s constitutional right to abortions up to about 24 week of pregnancy. South Carolina’s new law would only allow abortions up to about six to eight weeks of pregnancy.

The fetus is thought to have reached “viability” at about 24 weeks, which means it has a chance of surviving outside the womb if born prematurely.

The state’s position is that since cardiac activity in an embryo can be detected as early as six weeks, “the presence of a heartbeat is a sign that the fetus is highly likely to survive until live birth,” according to state legal filings. Thus, six weeks or so should be the new standard after which nearly all abortions should be banned, state filings said.

Although the Legislature may have had the child’s possible future life in mind when it passed its anti-abortion law, that “can never outweigh a person’s right to exercise her constitutional right” to an abortion before viability, Lewis told Smith.

“I hear what you’re saying,” Smith told Lewis.

Lewis replied, “It’s not what I’m saying, it’s what the courts are saying — five decades of precedent.”

A preliminary injunction would allow Lewis’ decision to be appealed to the next rung in the federal system, the 4th Circuit Court of Appeals, and then to the U.S. Supreme Court. At a Feb. 26 hearing, Smith indicated that Wilson is prepared to take the case to the Supreme Court, if necessary.

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, or as early as six weeks into a pregnancy. Critics contend many women don’t even know they are pregnant then.

Lewis’ future ruling is also expected to contain her decisions on two other matters in the case:

Whether to allow Gov. Henry McMaster and S.C. House Speaker Jay Lucas to intervene in the case on the side of State Attorney General Wilson and other defendants. Lucas has filed a motion contending he has an interest in defending a law that provides for “the health, safety, and welfare of South Carolinians.” In a legal filing, McMaster asserts he has an interest in protecting the authority of a governor to “consider and approve” legislation.

Abortion rights attorneys oppose the intervention of Lucas and McMaster, saying that the state’s interests are already well represented by Attorney General Wilson and that the governor’s and the speaker’s participation “as parties appears to serve no end but their own political self-interest.”

Moreover, allowing McMaster and Lucas to participate as full-fledged parties to the lawsuit would open up “a Pandora’s box of duplicative briefing and multipronged oral argument” that would inject unnecessary complexity into what is now an efficient contest between the current opposing parties, the abortion rights lawyers said.

Besides, abortion rights lawyers contended, McMaster and Lucas can already make their positions known with the court by filing “friend of the court” briefs.

Whether to strike down other provisions in the law, including whether to require women in the early stages of pregnancy and who seek an abortion to undergo an intrusive vaginal ultrasound to detect a seeming pulse that some say is the equivalent of cardiac activity. The law also requires doctors who learn that a pregnancy was caused by incest or rape to report that to law enforcement.

Other defendants include Edward Simmer, who is director of the S.C. Department of Health and Environmental Control, and various members of the S.C. Board of Medical Examiners. DHEC is included because it licenses abortion clinics. The Board of Medical Examiners is included because should the new law take effect, the Board would have the power to discipline doctors who ran afoul of the law.

In her Feb. 19 temporary restraining order stopping the new law from going into effect, Lewis cited more than a dozen major court decisions over the years, saying “courts have ’universally’ invalidated laws that ban abortions beginning at a gestational age prior to viability.”

McMaster signed the new law into effect on Feb. 18. Laws restricting abortion rights are a top priority among the conservative Republicans, who make up majorities in the S.C. House and Senate.

After Monday’s hearing, abortion rights attorney Malissa Burnette told reporters that Judge Lewis has heard all the arguments in the case. “It’s in her hands now,” Burnette said.

State Attorney General Smith told reporters, “We believe we gave it a good defense, but it’s up to the judge to determine how to rule.”

In a hearing last month before Lewis, Smith told the judge that the U.S. Supreme Court’s makeup has changed in recent years and the chances that a newly-constituted high court will rule in South Carolina’s favor are good.