A federal court ruling striking down a North Carolina ban on abortions starting at 20 weeks of pregnancy will not have an immediate impact on a similar law in South Carolina.
But the court ruling, in which a federal judge said the N.C. ban is unconstitutional, could cause trouble for the S.C. ban if a higher court agrees.
Should the federal district court’s decision get appealed and be upheld by the 4th U.S. Circuit Court of Appeals, the ruling would apply to South Carolina as well, said Sue Berkowitz, head of S.C. Appleseed Legal Justice Center. That could invalidate South Carolina’s 20-week abortion ban, passed in 2016.
Regardless, legal experts say the N.C. legal case could spark a similar court challenge in the Palmetto State, where Republican legislators continue to push for tougher restrictions on abortion access.
For the North Carolina suit to having bearing on South Carolina, a patient and provider in this state must be willing to file a lawsuit challenging the S.C. law, said Susan Dunn, legal director of the American Civil Liberties Union of South Carolina.
Dunn, however, said such a challenge is unlikely.
“I just don’t see it happening,” she said. “The case in North Carolina was stronger, because you had affected providers willing to come forward.”
In North Carolina, several doctors and a Planned Parenthood chapter sued, arguing the abortion ban forced them to turn away women seeking an abortion after their 20th week of pregnancy. The health care providers argued the restriction, which offers exceptions only in cases of narrowly defined emergencies, violated Roe v. Wade, the 1973 U.S. Supreme Court decision that affirmed a woman’s right to an abortion, and posed a risk to women’s health.
In his order last week, U.S. District Court Judge William Osteen Jr. wrote that the Supreme Court has protected abortion as a constitutional right until a fetus can live outside the mother’s womb. Osteen also noted that North Carolina’s own medical expert conceded that’s almost never possible until the 22nd week of gestation, the Associated Press reported.
South Carolina’s 20-week abortion ban, signed into law in 2016 by former Republican Gov. Nikki Haley, makes an exception only if the fetus has a severe condition that would lead to death at birth, or if the procedure is deemed necessary to save the mother’s life or to avert serious, irreversible physical harm.
The law does not provide exceptions for rape or incest.
In South Carolina, most abortions take place before the 14th week of pregnancy, and none of the three abortion clinics in the state perform the procedure late in the second trimester. Any abortions performed that late must take place at a hospital.
Dunn sees a challenge to the law as unlikely. For a woman seeking an abortion after 19 weeks, filing a lawsuit isn’t practical, she said.
“They’re looking for a provider, not a lawsuit,” Dunn said. “They just go to another state.”
A provider would have to raise the issue, “and we just don’t have many providers in a position” to do so, she said, noting the religious affiliations of many hospitals in the state.
Pro-choice advocates, she argued, would be better served to wait and see how the North Carolina suit plays out.
Judge Osteen on March 25 gave North Carolina state lawmakers 60 days to write a new abortion law or appeal his ruling.
Laura Brewer, a spokeswoman for the North Carolina attorney general’s office, said her office was reviewing the decision, according to Reuters. However, an appeal may be unlikely.
Democratic Attorney General Josh Stein earlier this month filed a lawsuit challenging the constitutionality of the Trump administration’s new Title X “gag rule.” The rule bars healthcare providers in any clinic that receives federal funding from referring a patient for an abortion. The lawsuit argues the rule would reduce access to and erode the quality of reproductive healthcare that Title X was intended to provide for low-income individuals.
And Democratic N.C. Gov. Roy Cooper, while not a vocal supporter of abortion rights, has criticized restrictions making it harder for women to get abortions.
‘Not afraid to go to court’
Anti-abortion activists in South Carolina successfully passed a ban on abortion starting at 20 weeks of pregnancy, arguing the much-disputed theory that fetuses can feel pain at that stage.
The law has yet to be challenged in court despite cries from critics that it is unconstitutional.
A Planned Parenthood South Atlantic spokeswoman said the organization has no plans to challenge the S.C. abortion ban, “but we are actively fighting against bills we are seeing right now in the South Carolina State House.”
Republican lawmakers are considering legislation to ban abortion once doctors can detect a fetal heartbeat, typically around the sixth week of pregnancy. That is before many women know they’re pregnant, and long before viability.
Lawmakers held a hearing on the bill last week and are expected to hold another one soon.
Criticizing the fetal heartbeat bill, Ashley Lidow, a lobbyist for the Women’s Rights and Empowerment Network, said, “The North Carolina case should signal to S.C. lawmakers that the heartbeat legislation they are considering is blatantly unconstitutional.”
The bill is one of many Republicans in the State House have introduced to chip away at abortion access in recent years.
Pro-life lawmakers have said they feel emboldened by judicial appointments under President Donald Trump — including the recent confirmation of U.S. Supreme Court Associate Justice Brett Kavanaugh — to pass a law that could spark a court challenge to overturn Roe v. Wade.
“There is a strong likelihood it will get challenged, and we’re not afraid of that,” said bill sponsor and state Rep. Steven Long, R-Spartanburg. “We’re not afraid to go to court, because I think that his bill can be found to be constitutional without necessarily overturning Roe v. Wade. The bill identifies a heartbeat as when a life is protected and abortion is no longer allowed. It gives a specific marker or milestone in a child’s development, as opposed to Roe v. Wade with viability, which is very broad.”
At that same time, Long supports legislation that would directly challenge Roe v. Wade, such as the personhood bill, which would would ban almost all abortions. The proposals would establish that the unborn have legal rights at the moment of conception.
“The courts have been changing for the better under the entire Trump presidency, and the Court is in a position for a good pro-life bill to come before them,” Long said.