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Anti-abortion group returning to Columbia clinic with exemption from SC orders to stay home

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Mark Baumgartner

Columbia police officers ask A Moment of Hope founder Mark Baumgartner on Tuesday, April 7, 2020, to leave his regular spot outside the Planned Parenthood clinic and issue him a ticket for disobeying the city's stay-at-home ordinance. Provided

COLUMBIA — Anti-abortion activists will resume their spots Saturday outside Columbia's Planned Parenthood clinic without fear of arrest, days after getting a ticket for disobeying Columbia's stay-at-home order and warned not to come back amid the coronavirus crisis. 

Mark Baumgartner, founder of A Moment of Hope, said Friday his group of five will return to the sidewalk, newly armed with an exemption letter from the state Department of Commerce, which states "your business can continue operating during this time of COVID-19 pandemic."

Columbia Mayor Steve Benjamin confirmed that officers will not arrest or ticket the group based on that emailed letter. 

It's a turnaround from Tuesday, when Columbia police told Baumgartner if he didn't leave and take others with him, they could all get arrested.

"Are you willing to put them at risk of being incarcerated and probably contracting the virus?" one officer said, as seen in a video posted on YouTube.

"I don’t want it to get to that point," another officer said. "Come back when this is all over. Would you do that for me?"

Baumgartner was ultimately ticketed under Columbia's ordinance, which the city council let expire Thursday after Gov. Henry McMaster issued a statewide "home or work" order superseding the local rules. McMaster's rules include exemptions for certain activities and businesses considered essential. 

Baumgartner has argued his nonprofit is exempt under First Amendment freedoms of religion, speech and assembly. His members have regularly stood outside the clinic for the last seven years in an attempt to dissuade women walking in from having an abortion, handing out gift bags with snacks, pamphlets and a model of a fetus at 12 weeks.

"This is and has been a First Amendment issue guaranteed by the Constitution," he told The Post and Courier. "Gov. McMaster and the state of S.C. Commerce Department recognize that. Now that the unconstitutional city order has been lifted, our organization can continue to offer essential help to mothers in need."  

But the state's economic development agency, which McMaster tasked with providing guidance on businesses that can continue operating, took no stance on First Amendment questions. A Moment of Hope was deemed essential for a much simpler reason. The Republican governor's order lists the types of businesses that must close, and nonprofits aren't on that list, "therefore, they are able to remain open," said Commerce spokesman Alex Clark.   

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Commerce's form letter to A Moment of Hope goes on to explain what exempted businesses must do to comply with workplace safety guidelines amid the pandemic, to include limiting the number of people inside a store. 

Asked how that applied to standing on a sidewalk, Baumgartner said, "That is where we do our work. Our essential work is being there offering alternatives at the moment these mothers have a last chance to change their minds."

His group's members will, however, stand at least 25 feet away from each other to comply with social distancing, he said. 

Benjamin said he won't quibble with whether Commerce's letter actually pertains to the group. But the Democratic mayor said he has asked for a list of all exempted businesses so officers don't waste their time thinking they're enforcing the governor's order only to be shown an emailed exemption. 

"If it's the governor's position that there are exceptions to the 'home or work' order then we're going to respect them," Benjamin said Friday. "This was never about freedom of religion. We completely understand the freedoms of religion, speech and assembly. It was purely to make sure people were living in the spirit of the ordinance."

On Thursday, a group of legislators asked McMaster to order the three abortion clinics in South Carolina to close, calling abortions an elective procedure. His office has not responded.

Three weeks ago, McMaster asked hospitals and medical facilities to halt all elective surgeries to make room for the coming surge of COVID-19 patients. But that was not an order, and neither his recommendations nor orders have specifically addressed abortions. 

Other Republican governors have tried to prohibit abortions during the outbreak, largely without success. 

In Iowa, the American Civil Liberties Union and the state reached an agreement that allows women to obtain "essential" surgical abortions. Federal court rulings have allowed abortions to continue in Alabama, Ohio and Oklahoma.

The exception has been in Texas, where the 5th U.S. Circuit Court of Appeals held 2-1 Tuesday that the state’s restrictions on abortions could remain in place during the pandemic. 

The Associated Press contributed to this report.

Follow Seanna Adcox on Twitter at @seannaadcox_pc.

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