23 Mar 2021 Anti-Choice Laws in S. Carolina, Arkansas Among Dozens Headed for Supreme Court
New, highly restrictive abortion laws in Arkansas and South Carolina are only the latest among dozens of anti-choice bills aimed by conservative state lawmakers at testing the limits of Roe v. Wade and the U.S. Supreme Court’s newly conservative majority. In addition to jeopardizing women’s rights to safe and legal abortions, the measures also pose a threat to surrogacy.
As we wrote last year, the hasty confirmation of Amy Coney Barrett to the Supreme Court less than two weeks ahead of the 2020 presidential election, along with the confirmation of Trump appointees Neil Gorsuch in 2017 and Brett Kavanaugh in 2018, created a 6-3 conservative majority. Red-state conservatives, viewing the Supreme Court’s swing to the right as their chance to advance a decades-long crusade against women’s reproductive rights, have passed dozens of bills—more than 60 in 2021 alone—aimed at challenging Roe v. Wade, the Court’s landmark 1973 decision establishing a woman’s right to an abortion during the first six months of pregnancy.
South Carolina Hopes to Make ‘Fetal Heartbeat’ Laws ‘Mainstream’
One of the most recent in the wave of anti-abortion laws likely headed for the Supreme Court is South Carolina’s S. 1, the SC Fetal Heartbeat Protection from Abortion Act, passed in an expedited process and signed into law by Republican Governor Henry McMaster on February 18, 2021. Just one day later, a federal court judge issued a temporary, two-week stay, which she extended on March 19. In issuing the preliminary injunction, the judge cited 50 years of U.S. Supreme Court decisions defending freedom of choice.
Next step for the state will be a challenge in the U.S. 4th Circuit Court of Appeals. If denied on appeal, the state’s Attorney General, Alan Wilson, says he is prepared to take his appeal all the way to the Supreme Court.
The new South Carolina law would prohibit abortion from the time cardiac activity can be detected by ultrasound in the womb, with exceptions for pregnancies resulting from rape or incest or to save the life of the mother. Detection of cardiac activity could occur as early as five or six weeks from conception, before most women are even aware they are pregnant. Physicians who perform abortions after that time would be subject to federal charges, with a maximum 2-year prison sentence.
South Carolina’s new ban would prohibit abortions long before a fetus is viable outside the womb, the principle on which Roe was decided. Rather it applies the “fetal heartbeat” standard as when the baby would be expected to live and be carried to term, similar to other “personhood” legislation being advanced in some states, including Arizona and Louisiana.
Other provisions of the law would require women to undergo an invasive, vaginal ultrasound, and would require physicians to report any cases of rape or incest to law enforcement.
By including the exceptions for rape and incest, which many of the newly enacted abortion laws do not, South Carolina legislators hope to position their bill as a “moderate” or “mainstream” solution, some legal experts say.
“I think lawmakers in South Carolina are sort of trying to position heartbeat bills as the new mainstream, and this heartbeat bill in particular as potentially a more palatable alternative to some of the laws we've seen go onto the books in 2019,” Mary Ziegler, a professor at Florida State University and author of “Abortion and the Law in America: Roe v. Wade to the Present,” told NPR.
South Carolina officials admit the law was designed to test Roe v. Wade before the Supreme Court’s new conservative majority. In his argument against the preliminary injunction, South Carolina Deputy Solicitor General Emory Smith told the judge, “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.”
Arkansas Anti-Abortion Law Direct Challenge to Roe v. Wade
Arkansas’s new anti-choice law, SB 6, signed into law by Republican Governor Asa Hutchinson on March 9, 2021, is even more onerous than South Carolina’s. The law, which Hutchinson admits is designed to overturn Supreme Court case law on abortion, is an absolute ban, containing no exceptions for rape or incest—one of 14 similar bans passed by states in 2021. “It is the intent of the legislation to set the stage for the Supreme Court overturning current case law,” Hutchinson said in a statement, as reported by NBC News. The Arkansas law does make an exception to save the life of the mother.
In signing the bill, Hutchinson expressed reservations about not including the rape and incest exceptions, saying the inclusion of those exceptions might make it more likely the Supreme Court will take the case.
Arkansas has among the nation’s most restrictive abortion laws. Two years ago, the state enacted a total ban on abortions in the state in the event Roe v. Wade is overturned at the federal level. In 2019, state lawmakers passed a bill that would ban abortions in the state after 18 weeks; that law remains tied up with legal challenges. The state legislature currently is considering other measures, including a requirement that any woman seeking an abortion must undergo an ultrasound procedure.
In an opinion piece for CNN.com, abortion law expert Mary Ziegler wrote that the new Arkansas law “isn’t just a law. It’s a letter to the Supreme Court’s conservative, six-justice majority—and a preview of the case against Roe v. Wade.”
Conservative Assault on Abortion Rights Threatens Surrogacy
Things are about to get interesting at the U.S. Supreme Court. South Carolina and Arkansas are only the two most recent salvos in the conservative war on reproductive rights. As reported by Chicago Sun-Times, Montana lawmakers have already passed six anti-abortion laws in 2021, including a total ban after 20 weeks. While some laws, such as the Arkansas ban, are a direct challenge to Roe v. Wade, many others seek to chip away at the law, “incrementally,” as Eric Scheidler, executive director of the Chicago-based Pro-Life Action League, told the Sun-Times. The strategy of the anti-choice movement has changed since his organization was formed in the 1970s: Rather than overturning, Roe v. Wade directly, Scheidler said, “I think we’re more likely to see this court put more restrictions on abortion. I think five years from now we’ll realize that Roe v. Wade was slowly overturned without it ever making a big headline.”
Beyond the attack on the personal autonomy and reproductive choice of women, the prospect is a chilling one for anyone who wants to become a parent through surrogacy, either because of infertility or because they are single or LGBTQ. Every surrogacy agreement lays out criteria agreed to by all parties, on the advice of counsel, for handling some of the more potentially challenging medical decisions, including pregnancy termination in the event of danger to the surrogate’s health or life or in the event of indications of serious genetic disease or significant abnormalities. In those cases, the decision of whether or not to terminate is based on the recommendation of the treating physician in consultation with all parties—as all medical decisions should be.
For us at IFLG, surrogacy and other types of assisted reproduction are life-affirming and miraculous technologies that provide new opportunities and options for fulfilling dreams of parenthood and building families. The decades-long assault on choice and reproductive freedom is not going away, but it has found new weapons in the attempt to destroy those dreams.
I and many of my colleagues have spent year or decades helping families created through surrogacy and working to foster legislation and industry best practices to make assisted reproduction more reliable, safer and accessible to more and more people. That makes the cynical tactics of right-wing politicians, who time their activism to election cycles and the composition of the Court, rather than on what is right for intended parents and families, disheartening and difficult to watch. In making the difficult choice to end a pregnancy or in determining the best interests of all parties in a surrogacy, the safety and welfare of all those involved is paramount. Mandating a medical result by enacting a law—and taking the advice of the physician out of the equation—puts health and safety second to politics and ideology.
President Biden and his administration have promised to defend freedom of choice and to “codify” the protections of Roe v. Wade in federal law. We stand behind their efforts.