02 Mar 2022 Federal Appeals Court Sidelines South Carolina Abortion Ban
A federal appeals court on February 22, 2022, upheld a stay on a South Carolina “fetal heartbeat” abortion law that would punish doctors who violated it with stiff fines and up to two years in jail, as reported by the Raleigh, North Carolina, News Observer.
But although the recent appellate ruling stops the South Carolina abortion ban from taking effect, the U.S. Supreme Court will rule later this spring on similar laws in Texas and Mississippi, both intended to test women’s constitutional right to choose. Should the Supreme Court weaken or overturn Roe v. Wade, the historic 1973 decision that established women’s right to abortions, the South Carolina law would take effect immediately.
Apparently not content with the severity of their original bill, which made exceptions for rape and incest, South Carolina lawmakers already have advanced two more abortion bills in 2022. One would make all abortions illegal in the state—even in the case of rape or incest—if Roe is overturned, with the only exception being to save the mother’s life. The second would force physicians to inform women who have taken or plan to take medication to induce an abortion about an unproven, potentially dangerous method of reversing it.
Fetal heartbeat law challenges viability standard
The South Carolina legislature passed, and Governor Henry McMaster signed, the South Carolina Fetal Heartbeat and Protection from Abortion Act in February 2021. The law requires doctors to perform an ultrasound to check for fetal cardiac activity, which can be detected at about six weeks—usually before a woman even knows she is pregnant or has the chance to consider her options.
If fetal cardiac activity is present, the doctor is prevented from performing an abortion unless the pregnancy is the result of rape or incest, or if the pregnant mother’s life is in danger.
It should be noted that the early “cardiac activity” detected in a six-week fetus is not really a “heartbeat,” according to medical experts, but a “fluttering” or movement of the embryonic cells. In fact, the fetus does not develop a heart until about nine weeks, as reported by the Associated Press, and a fetus is not normally viable outside the womb until 24 weeks. The South Carolina law and other state laws like it are aimed at challenging Roe and subsequent decisions establishing the “viability” standard that women have the right to an abortion up to 24 weeks.
Doctors who perform abortions in violation of the law would be subject to a $10,000 fine and up to two years in prison. The woman having the abortion would not be charged under this law.
Planned Parenthood and other pro-choice groups filed suit almost immediately in U.S. district court, which issued a preliminary injunction followed by a formal stay of the law. Twenty Democratic state attorneys general filed an amicus brief in support of the suit, arguing the South Carolina law would result in women denied abortions in South Carolina traveling to other states for services, creating a burden on those states, U.S. News & World Report wrote in September 2021. In July 2021, 20 other states, primarily Republican-led, filed an amicus brief in support of the South Carolina law.
In its ruling on February 22, 2022, a three-judge panel of the 4th U.S. Circuit Court of Appeals upheld the lower court’s injunction. South Carolina officials have not said whether or not they will request a hearing by the full 4th Circuit Court but vowed to continue all means to defend the law, as the News Observer reported.
Supreme Court to rule in spring 2022 on Mississippi, Texas abortion bans
But the U.S. Supreme Court is expected to rule this spring or early summer on two other state abortion laws, designed, like South Carolina’s, to weaken Roe v. Wade or overturn it altogether.
As we wrote in May 2021, the Supreme Court has agreed to hear arguments in a lawsuit against Mississippi’s “fetal heartbeat” abortion ban, just of one of numerous new state laws that challenge the “viability standard” that has been legal precedent in abortion law since 1973. In agreeing to hear the Mississippi case, the Court wrote that it would address a single question: “whether all pre-viability prohibitions on elective abortions are unconstitutional.”
Meanwhile, Texas lawmakers, apparently on a mission to one-up other Republican-led states, enacted a draconian law outlawing all abortions in Texas, including in cases of rape and incest, and financially incentivizing conservative activists, religious organizations or plain, ordinary citizens to sue anyone involved in an abortion performed in Texas —the doctor, the clinic, counselors, Uber drivers, relatives, or a friend who loaned money for the procedure. Despite legal challenges from activists, consumers and the Biden administration, the conservative-majority Supreme Court declined to stay the Texas law. The court is expected to rule in both cases in the spring.
New SC bills threaten murder charges for doctors, unproven therapy for women
But wait, there’s more. Since the beginning of 2022, the South Carolina state legislature has brought forward two more abortion laws, as Columbia, South Carolina-based WTLX/News 19 reports.
The first, S 988, would ban all abortions, and like the Texas law, makes no exception for cases of rape or incest. Abortion would be legal only to save the mother’s life, and a doctor who performed an abortion in violation of the law would be charged with murder.
The second new law, S 907, elevates legislators’ medical recommendations above those of physicians and medical science. The law would require physicians to tell women requesting abortion medication about an “abortion reversal pill.” The text of the bill states that a single pill containing progesterone can reverse the effects of medication taken to induce abortion, should the pregnant woman regret her decision to have an abortion, News 19 reports.
The problem is, the bill has generated opposition from OB/GYN physicians, who say the reversal medication is untested, unproven and potentially unsafe for the pregnant woman. “There is no scientific evidence of this. No clinical trials, no safety or side effect profiles, no scientifically sound data,” Columbia, South Carolina-based OB/GYN Dr. Carol Alan told News 19.
As we have reported extensively, South Carolina is only one among many conservative-led states battling to strip women of their constitutional right to choose an abortion. If the Supreme Court overturns Roe v. Wade, at least 21 states are expected to ban abortion outright, U.S. News & World Report wrote in December 2021, potentially creating a reproductive health care “desert” across much of the U.S.
Conservative Supreme Court could decimate Americans’ reproductive rights
Questions raised by justices during oral arguments have convinced some activists and observers that the Roe decision is indeed in peril. Even Chief Justice John Roberts, a “moderate” conservative who has voted with the court’s three liberals in many cases, appeared to consider changing the standard from “viability,” when a fetus could survive outside the womb, to a shorter period of time that would, presumably, still give a woman sufficient time to make a life-changing decision, The New York Times reported. In fact, Justice Clarence Thomas, along with the late Antonin Scalia, has argued for years that there is no constitutional “right to privacy,” a principal on which not only women’s abortion rights but Supreme Court decisions on interracial marriage, birth control and same-sex marriage have been based, as reported by The Hill.
This last argument, as well as the language of state laws designating unborn fetuses legal persons, threatens a range of rights and privileges most Americans take for granted. Among those is the right of infertile couples, LGBTQ people or unmarried individuals to create families using assisted reproductive technology.
As South Carolina legislators debated the state’s newest, most severe abortion ban, S 988, opposition witnesses said the bill’s language would prevent South Carolinians from seeking fertility treatment such as IVF, which frequently produces more embryos than can be used as well as many that are not viable enough to be implanted. Under this proposed law, and dozens of other state laws, those unused embryos would have the same rights of personhood as you or me or the mother who was impregnated through rape or incest, which could have an alarming if not fatal impact on the access to, and in fact the legality of, IVF and other reproductive technologies.
These questions of accessibility and legality of IVF and other assisted reproduction technologies, basic human rights of women to make decisions about their own bodies, and other privacy rights loom over us all as we wait for the Supreme Court to rule. Court watchers aren’t optimistic about Roe’s survival. Americans, who may be focused on the narrow issue of whether or not abortion is legal, have no idea of the drastic and wide-reaching consequences if Roe is overturned. Many of the rights we assumed constitutionally protected—the right to have information about and access to contraception, for example, or the right to marry the person of our choice—all will be in question.
And that’s no accident. Those who work in the statehouses to craft these bills understand the effect of the language of these bills. They are intended not only to outlaw abortion in the United States, but also to enshrine religion-based standards of morality and behavior in U.S. law.
The Supreme Court is what it is. President Joe Biden’s appointment of Ketanji Brown Jackson to replace retiring Justice Stephen Breyer will merely preserve the court’s 6-3 conservative majority. But we know from history that the justices do respond to public opinion, and sometimes they even change their minds. We need to make sure they know the American public does not want women to lose the right to control their own bodies, and it doesn’t want laws that would deny people the right to use assisted reproductive technologies to fulfill their dreams of parenthood. Please help us, spread the word!