COLUMBIA, S.C. – Twenty states are supporting South Carolina's defense of a new abortion law, arguing in an amicus brief that a federal judge was wrong to pause the entire measure instead of just the provision facing a court challenge.
In a filing Tuesday with the 4th U.S. Circuit Court of Appeals on behalf of the states, Alabama Attorney General Steve Marshall argued that U.S. District Judge Mary Geiger Lewis overstepped her authority when she put the entire abortion law on hold, rather than just the portion being challenged.
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The judge's ruling, Marshall wrote, “treads on South Carolina’s sovereign ability to decide for itself the purposes of its legislation” and “aggrandizes the judicial power by treating the court’s injunction of the challenged provision as erasing it entirely so the whole Act collapses.”
The arguments mirror those of South Carolina Gov. Henry McMaster, a Republican who signed the measure into law earlier this year. The state's attorneys wrote in an appellate filing earlier this month that Lewis’ decision to halt the entire measure during litigation “oversteps the bounds of federal judicial power.”
McMaster’s brief asked the appellate judges to lift a lower court’s injunction on the “ South Carolina Fetal Heartbeat and Protection from Abortion Act.”
The law requires doctors to perform ultrasounds to check for a heartbeat in the fetus, which can typically be detected about six weeks after conception. If cardiac activity is detected, the abortion can only be performed if the pregnancy was caused by rape or incest, or the mother’s life was in danger.
Planned Parenthood attorneys sued immediately, and the entire law has been blocked from taking effect during the lawsuit.
The states filing in support of South Carolina all “have in place laws similar to the South Carolina laws the district court enjoined,” Marshall wrote.
In halting the whole law, Lewis presumed that the sole purpose of other provisions in the law — like requiring an ultrasound to be performed before an abortion — “was to ban abortions of unborn children with heartbeats,” Marshall wrote.
That, he continued, “would be news not only to the South Carolina General Assembly, but to many other state legislatures that have enacted similar ultrasound requirements without South Carolina’s additional regulation.”
The states that signed onto the amicus brief are: Alabama, Alaska, Arkansas, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma, Tennessee, Texas, Utah and West Virginia. All but three have Republican governors.
Several other groups have submitted filings in support of South Carolina, including the Southern Baptist Convention and an anti-abortion group of obstetricians and gynecologists.
Attorneys for Planned Parenthood have not responded in court.
Actions by an even higher court could also dictate outcomes in this case. On Tuesday, Lewis ruled she would stay further motions following the U.S. Supreme Court’s decision to take a case from Mississippi — which wants to enforce an abortion ban after 15 weeks of pregnancy. The court will likely hear that case in the fall, with a decision likely in 2022.
About a dozen other states have passed similar or more restrictive abortion bans, which could take effect if the U.S. Supreme Court were to overturn Roe v. Wade, the landmark 1973 court decision supporting abortion rights. Federal law supersedes state law.
More than 90% of abortions take place in the first 13 weeks of a woman’s pregnancy, according to the federal Centers for Disease Control and Prevention.
Opponents have argued many women do not know they are pregnant at six weeks, especially if they are not trying to conceive. And, they argue, with such an early deadline, the law gives women little time to consider whether to have an abortion.
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Meg Kinnard can be reached at http://twitter.com/MegKinnardAP.