SC’s GOP attorney general won’t weigh in on legality of ‘fetal heartbeat’ abortion ban
As the South Carolina Senate considers a bill that would ban most abortions after six-weeks of pregnancy — a so-called “fetal heartbeat” bill — a state representative has asked the S.C. Attorney General’s Office to decide whether the legislation would be legal if passed.
But Republican Attorney General Alan Wilson has declined to weigh in on the issue, saying that commenting on legislation that has not passed and that the office may be defending in court later would be “imprudent.”
S.C. Rep. Justin Bamberg, D-Bamberg, requested in a letter that Wilson’s Office give a legal opinion on whether or not the heartbeat bill would be in violation of Roe v. Wade, a U.S. Supreme Court decision that established a woman’s constitutional right to an abortion.
In a letter to Bamberg Tuesday afternoon, Solicitor General Robert Cook said it would not be issuing that opinion.
The move would have had political implications. Bamberg, a Democratic lawmaker, is asking the state’s Republican attorney general to issue an opinion on whether the abortion ban, backed almost exclusively by Republicans, would be legal if it becomes law. Similar laws passed in other states have been blocked in the courts.
Bamberg, who also sent the letter to state Senate President Harvey Peeler, asked that the Legislature hold off on passing the bill until the Attorney General’s Office issues the opinion.
“As Governor McMaster has indicated that he would sign this bill should it pass the General Assembly, I believe it would be most prudent for the legislature to withhold taking further action on the bill until we receive the official legal opinion of the Office of the Attorney General,” Bamberg wrote in his letter.
Bamberg expressed concerns that passing an abortion ban after six weeks of pregnancy, which is before some women know they are pregnant, could lead to costly court battles over the constitutionality of the legislation. The Bamberg Democrat asked if the attorney general could include an estimate for how much it would cost in legal fees to defend the legislation, as well as the time it would take.
“These are important aspects to consider as we move forward with the state budgeting process because we need to have an approximation of how much funding must be taken from other areas to adequately prepare for the costs of extended litigation,” Bamberg wrote in his letter.
Other states that have passed similar abortion restrictions have found their legislation caught up in court. In some cases, such as in Iowa and Ohio, judges have struck down or blocked heartbeat bills.
South Carolina’s bill is near the end of the legislative process. It passed the state House of Representatives in April and was fast-tracked through Senate committees throughout the summer and fall.
As it stands, the bill would only provide exceptions for rape and incest if victims report the crimes to the police.
Before the start of the legislative session, Senate Majority Leader Shane Massey, R-Edgefield, said Republicans don’t have the votes to overcome a Democratic challenge in the Senate, which could doom the bill. Still, S.C. Republican Gov. Henry McMaster held a press conference during the first week of session to urge senators to pass the legislation, which he has vowed to sign into law.
Usually, the Attorney General’s Office will issue a legal opinion if a legislator requests one, office spokesman Robert Kittle said Monday afternoon. But, on some occasions, the office will choose to hold off on examining bills because they can often change or be amended throughout the legislative process.
This story was updated with the response from the Attorney General’s office.
This story was originally published January 28, 2020 at 12:00 AM.
