Judge’s ruling freezing SC’s new abortion law attacks those who politicize courts

A federal judge ruled Friday that a strict anti-abortion law passed last month by the S.C. General Assembly cannot take effect for the foreseeable future.

The ruling by U.S. District Judge Mary Lewis also criticized court arguments made earlier this month to her by state lawyers that a newly-constituted U.S. Supreme Court with a conservative majority is now ready to strike down nearly 50 years of court decisions that permit abortions until a fetus can live outside the womb.

“We judges are not politicians in robes. Or, as Supreme Court Chief Justice Roberts said: ‘We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them’,” Lewis wrote.

Lewis’ injunction effectively prohibits the new law from going into effect until all appeals in the case are played out, including any appeals to the U.S. Supreme Court — a process that could take months or years, said Malissa Burnette, an attorney for Planned Parenthood South Atlantic, who along with the Greenville Women’s Clinic filed the lawsuit seeking the injunction.

“We urge Gov. (Henry) McMaster to take heed of the court’s decision and focus on improving health outcomes for people in South Carolina rather than attempting to ban abortion or restrict access to health care,” said Jenny Black, president of Planned Parenthood South Atlantic.

South Carolina’s new law is one of the strictest abortion bans in the nation and would outlaw nearly all abortions after an embryo’s heartbeat can be detected, which could be as early as six weeks into a pregnancy. Critics contend that many women don’t even know they are pregnant at that point.

Judge Lewis had earlier issued two temporary restraining orders to block the new law while opposing parties to a lawsuit filed by Planned Parenthood South Atlantic filed briefs in the case. The last of those orders was to expire on Friday.

“This case does not present a close call,” Lewis wrote. “In fact, based on the law, the Court is unable to fathom how another court could decide this issue differently than how this Court has decided it.”

Lewis’ ruling said the state’s new “fetal heartbeat” abortion ban, which critics say would prohibit nearly all abortions in the state were it to take effect, is unconstitutional because it conflicts with nearly 50 years of U.S. Supreme Court decisions that allow abortions up until the embryo is viable outside the womb, or 24 weeks into a pregnancy.

Nearly all abortions in South Carolina take place in the first 13 weeks of a pregnancy, according to S.C. Department of Health and Environmental Control. The state had about 5,100 reported abortions in 2019, the last year for which statistics were available, the agency reported.

Asked for reaction Friday, a spokesman for McMaster pointed to an earlier statement by the governor that indicated an appeal of Lewis’ ruling might be in the offing.

“The right to life is very important. This state is overwhelmingly in favor of that bill, and we will do whatever it takes – however long it takes – to see that the right to life is protected in South Carolina,” McMaster said last week.

McMaster and House Speaker Jay Lucas, R-Darlington, were allowed to intervene in the lawsuit on the same side as State Attorney General Alan Wilson, the main defendant in the lawsuit. Both Lucas and McMaster played major roles in the enactment and passage of the new law.

Wilson was named as a defendant because his office enforces state criminal and civil laws, and the new abortion law would allow criminal charges to be brought against doctors who violated the ban.

Wilson did not say whether he would appeal. His office released this initial statement: “It is the constitutional duty of this office to defend in court any law enacted by our General Assembly.”

In a court hearing last month, a lawyer for the attorney general’s office told Lewis that although South Carolina’s new abortion ban law may have been considered unconstitutional in the past, the new conservative justices on the U.S. Supreme Court may constitute a new majority that would find South Carolina’s new law constitutional.

“The law is in a state of flux. We have a different (U.S.) Supreme Court, your honor. It’s a different composition. ... The law may be what it is right now, but it may be different in another year,” Emory Smith, the attorney general’s deputy solicitor general told Lewis in a Feb. 19 hearing.

In her 22-page ruling, Lewis wrote a blistering critique aimed at the argument that just because the justices on the Supreme Court might change, past rulings on abortion would be overturned.

“Such a suggestion is misinformed at best, and highly offensive at worst,” Lewis wrote.

Lewis’ ruling cited testimony by U.S. Supreme Court Associate Justice Brett Kavanaugh, one of the three new conservative justices appointed by former President Trump, in which Kavanaugh indicated he would respect precedent when it came to abortion rights.

Any suggestion that the Supreme Court will change its previous decisions in abortion cases supposes that “the three justices most recently appointed to the Supreme Court are secretly scheming to overturn both Roe v. Wade and Planned Parenthood v. Casey because they are personally opposed to abortion,” Lewis wrote, adding that she “easily rejects such a notion.”

Roe and Casey are two landmark abortion rights decided by the U.S. Supreme Court. Both strongly affirmed a woman’s right to choose to have an abortion and assert a state cannot pass laws that ban most abortions.

Law libraries are full of opinions affirming a woman’s right to an abortion, even though they were written by judges who “were and are personally fiercely opposed to woman having such a right. Those judges’ and justices’ individual opinions on the matter was and is immaterial to their rulings. And, that is as it should be,” Lewis wrote.

Earlier this year, the new law was debated in the General Assembly, finally passed in February and signed into law by McMaster.

Among the new law’s provisions:

▪ Doctors would be required to perform an ultrasound to detect a heartbeat before performing any abortion.

▪ If a heartbeat is detected, the doctor would be prohibited from performing an abortion except in certain limited circumstances, such as if the pregnancy threatens the woman’s life or if she was the victim of rape or incest.

▪ In cases of rape or incest, the doctor would be required to report the crime to the local sheriff even if the woman didn’t want to involve law enforcement.

▪ Doctors convicted of performed an abortion in violation of the new law could be sentenced to up to two years in prison, the new law said.

Lewis concluded her ruling with what might be considered a message to those who would frame her decision in political terms: “When the history of the District of South Carolina Court is written, it will show that we were neither liberals nor conservatives, Democrats nor Republicans. It will instead establish that we did our level best to follow the law. That is certainly what the Court has done here.”

Spokeswomen for the clinics that provide abortions and other women’s health care services that brought the lawsuits applauded the decision.

“It’s hard to believe our elected officials would choose to make banning abortion their first priority while South Carolinians are suffering through the COVID-19 pandemic,” the Greenville Women’s Clinic said in a statement. “We are relieved the court has kept this law blocked.”

This story was originally published March 19, 2021 at 10:58 AM.