Appeals Court Mulls Arguments on South Carolina Abortion Law In this Feb. 17, 2021, file photo, Rep. Justin Bamberg, D-Bamberg, speaks against an abortion bill at a news conference in the Statehouse in Columbia, S.C. (AP)
MEG KINNARD Thursday, 27 January 2022 07:11 PM
An appellate court heard arguments Thursday in Planned Parenthood's legal challenge to South Carolina's new abortion law, with attorneys for the state arguing the nonprofit doesn't have standing to bring the case.
The nonprofit group, which immediately challenged the law after Republican Gov. Henry McMaster signed it last year, countered that it stood on legal bedrock.
The “South Carolina Fetal Heartbeat and Protection from Abortion Act" is similar to abortion restriction laws previously passed in a dozen states that became tied up in the courts.
South Carolina's law requires doctors to perform ultrasounds to check for fetal cardiac activity, which can typically be detected about six weeks into pregnancy. Once activity is detected, the abortion can only be performed if the pregnancy was caused by rape or incest, or if the mother’s life is in danger.
At issue in the appeal is a decision by U.S. District Judge Mary Lewis to put the entire law on hold, with attorneys for the state arguing that it was improper to stall all parts of the measure, rather than just the “heartbeat” provision.
The bulk of the government’s virtual argument before the 4th U.S. Circuit Court of Appeals centered on its notion that Planned Parenthood doesn’t have legal standing to bring the challenge on behalf of women who would potentially be prevented from getting abortions.
Representing South Carolina, attorney Christopher Mills said a prospective mother could ultimately choose to a sue a provider who didn’t follow the law, a situation he said would create a dire conflict of interest.
“They don’t have third-party standing because they have a unique conflict of interest in trying to deprive the women they supposedly represent of statutory rights against them,” Mills said, of Planned Parenthood. “There is no case that sanctions third-party standing in the face of this sort of conflict of interest.”
Julie Murray, Planned Parenthood’s appellate advocate, argued that Supreme Court rulings support the group acting in its current legal role.
“It is bedrock law that litigants have third-party standing to challenge a statute that directly restricts their activities,” Murray said, citing a case where the high court had “directly addressed the third-party standing of abortion providers … and found that third-party standing did apply."
“We would urge your honors … to firmly reject the argument that’s been put forward by the governor,” Murray said.
It will likely be several months before the court issues its ruling from the arguments, which come as states around the country await U.S. Supreme Court action in another case that could dramatically limit abortion rights overall. Last month, attorneys for Mississippi asked the high court to uphold its ban on most abortions after the 15th week of pregnancy.
The state also asked justices to overrule the landmark 1973 Roe v. Wade case and the follow-up 1992 decision that prevents states from banning abortion before viability, the point around 24 weeks of pregnancy when a fetus can survive outside the womb.
South Carolina’s law has been blocked, pending the outcome of that case. If the court simply upholds Mississippi’s ban, other Republican-governed states would likely enact similar measures, while any demise of Roe could prompt more sweeping bans.
Texas’ abortion law, the most restrictive in the nation, also bans abortions as early as six weeks but, unlike South Carolina's law, has no exceptions for rape or incest. Legal challenges against that measure are ongoing, but the U.S. Supreme Court has allowed Texas' law to remain in effect.
Opponents of such laws have argued that many women do not know they are pregnant at six weeks. And, they say, with such an early deadline, the law gives women little time to consider whether to have an abortion.
Medical experts say the early cardiac activity is not an actual heartbeat but rather an initial flutter of electric movement within cells in an embryo. They say the heart doesn’t begin to form until the fetus is at least nine weeks old, decrying efforts to promote abortion bans by relying on medical inaccuracies.