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A Closer Look At South Carolina's New Abortion Law And Its Legal Challenge

South Carolina Gov. Henry McMaster signs a bill that will ban most abortions in his state.
South Carolina Gov. Henry McMaster signs a bill that will ban most abortions in his state.

South Carolina Gov. Henry McMaster signed a bill into law last week that would ban abortions once a heartbeat is detected — something that can occur as early as six weeks. There are exceptions, including rape, incest or if the woman’s health is at risk.

At least 11 states have passed similar bills, but they are all tied up in the courts, keeping them from going into effect. In South Carolina, Planned Parenthood sued right after the bill was passed, and on Friday, a federal judge temporarily suspended the law.

Mary Ziegler, a professor at Florida State University and author of “Abortion and the Law in America: Roe v. Wade to the Present,” joins WFAE's Marshall Terry to talk about the South Carolina law and its legal challenge.

Marshall Terry: What are the arguments for and against the so-called heartbeat bills?

Mary Zeigler
Florida State University
Mary Ziegler

Mary Ziegler: Well, I think that the constitutional argument for the heartbeat bill essentially is that the Supreme Court has been wrong about abortion law for the past almost 50 years. So, it's not lost on South Carolina lawmakers that under current Supreme Court jurisprudence, this bill is unconstitutional. Roe v. Wade and the cases following it, including Planned Parenthood v. Casey, held that there was a right to choose abortion before fetal viability, which is usually quite late in pregnancy. And of course, these laws ban either all abortions, depending on when someone realizes they're pregnant, or most abortions, definitely, before viability.

And lawmakers know that, so, these are designed partially to be a vehicle to overturn Roe. So, the arguments for the bills are essentially that Roe is wrong and that there is no constitutional abortion right. The arguments on the other side being made by Planned Parenthood are basically that these bills fly in the face of decades worth of Supreme Court precedent when it comes to abortion and the Constitution.

Terry: And as I mentioned just a moment ago, other states have passed similar bills. How do those other bills and other states compare with what Gov. Henry McMaster in South Carolina signed into law last week?

Ziegler: Well, South Carolina, I think — not necessarily because of Gov. McMaster, but because of some lawmakers, largely in the (state) Senate — was sort of billing this as a more moderate heartbeat bill, because it does have the exceptions that you mentioned. So, some other heartbeat bills or even some legislation like Alabama's absolute ban don't have exceptions of this kind. So, 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.

Terry: Planned Parenthood filed its lawsuit immediately after the South Carolina bill passed. A federal judge put it on hold until March 9. What could happen to it after that?

Ziegler: Well, what we would expect to happen would be that there would be a trial in the federal district court, at the conclusion of which the district judge would have really no choice but to say that the law is unconstitutional as the law currently stands. Then we would expect South Carolina to appeal that ruling to the (4th Circuit U.S. Court of Appeals). And the 4th Circuit, again, would have no choice but to say that the law is unconstitutional. Then, of course, the real money question is whether the U.S. Supreme Court would decide to hear the case.

Supreme Court building
Mark Thomas
The U.S. Supreme Court could wind up weighing the constitutionality of heartbeat bills, but the high court is under no obligation to hear such cases. If South Carolina's bill is headed there as a challenge to Roe v. Wade, it could be a long process.

And the reason that's more ambiguous is because the U.S. Supreme Court is under no obligation to hear any case. So, it's not clear whether the high court would agree to hear South Carolina's case, if the high court has any interest in heartbeat bills at all, really, and, if so, if there'd be something about South Carolina's that would capture the justices' attention, because, of course, there are lots of heartbeat laws in the pipeline if that's a route that the court seems interested in taking.

Terry: Where are those bills in other states and the legal process at this point?

Ziegler: A lot of them are working their way through the pipeline. Georgia's may be the furthest along. It's heading for the 11th Circuit Court of Appeals. And all of that just speaks to the fact that this process takes a while. Optimistically, right, South Carolina is probably looking at a matter of years before there's even an opportunity for the U.S. Supreme Court to take this case because this litigation takes time. And, of course, it takes a considerable amount of money, too.

Terry: You said earlier there's no clear sense if the U.S. Supreme Court is even interested in taking up this matter. Given former President Trump's three appointments to the court, though, is there a sense of what would happen with Roe v. Wade if one of these laws did make it to the court?

Ziegler: There's an "if" question, and there's a "when" question. So, certainly, state lawmakers reading the room see six justices nominated by conservatives, including three, as you mentioned, by President Trump. And they think that creates almost an insurance policy because Chief Justice Roberts over the summer seemed to sort of waver when asked to back away from Roe. I think lawmakers now believe that they don't need Roberts anymore because they have five conservatives in the bank, if you will.

I think it's premature to say that, simply because when Brett Kavanaugh was confirmed, state lawmakers in places like Georgia believed they had five justices in the bank, then, too, and it turned out that the picture wasn't as clear as that. So, I think what the court actually does remains to be seen. I'm still inclined to think that the court will back away from abortion rights and maybe even overrule Roe.

The big question is how quickly, because if the court is inclined to take that kind of pass, but to do so incrementally, that introduces a lot more uncertainty. Because the more time goes on, the more you can have unexpected retirements or deaths, the more you can have potentially even additional justices added to the court or some other kind of court reform. So, the more uncertain, in other words, the fate of Roe becomes, and I still don't know if it's smart to bet on even a court this conservative getting rid of Roe very quickly.

Terry: Mary Ziegler, thank you for joining us.

Ziegler: Thanks for having me.

Mary Ziegler is a professor at Florida State University and author of "Abortion and the Law in America. Roe v. Wade to the Present."

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Marshall came to WFAE after graduating from Appalachian State University, where he worked at the campus radio station and earned a degree in communication. Outside of radio, he loves listening to music and going to see bands - preferably in small, dingy clubs.