COLUMBIA — The worst pandemic in a century added a new twist to the decades-old debate over abortions in South Carolina: Whether government orders meant to halt the spread of COVID-19 override First Amendment rights.
The city of Columbia says yes. An anti-abortion group argues no.
On Tuesday, Mark Baumgartner and members of his A Moment of Hope nonprofit gathered outside Columbia's Planned Parenthood clinic, as they have regularly for seven years, in an effort to dissuade women walking in from having an abortion. He insists they do so reverentially handing out gift bags of pamphlets and snacks.
What they did differently for the coronavirus, he said, was stand at least 25 feet apart for social distancing.
Columbia officers asked him and his group to leave, or risk getting arrested for violating the city's stay-at-home order.
"I have a lot of respect for what you're doing," one officer said, as seen in the video posted on YouTube. "But now is not the time to do it because of what we’re going through. … When this is all over, you guys can continue doing it. That’s fine, but right now, it is what it is."
Baumgartner, who ultimately was ticketed and left, argues his team is exempt from the orders in exercising their free speech and religious rights.
"They've silenced our First Amendment rights," he told The Post and Courier. "We're out here praying and far apart. … This is my job and this is my religious organization."
In the video, Baumgartner asked how his spread-out group could be more of a public health threat than the women in the waiting room. He said he's watched dozens of women enter the clinic since the city's stay-at-home ordinance took effect.
"Why aren't you in there splitting them up?" he asked the officer.
The clinic is a medical facility, the officer responded.
"There's nothing I can do," he said. "My hands are tied on that."
"I understand you’re talking about lives," another officer said. "That’s what we’re dealing with too. We’re dealing with lives. People are dying from this. … I need these officers other places to deal with this. You’re going to be able to come back and do this another day."
Baumgartner faces a $500 fine and 30 days in jail under Columbia's order. He said he and his group might return Wednesday. If they do, they face arrest, officers said.
"Don't get yourself deeper," one officer said. "We’re in some unprecedented, unfortunate times right now."
If he does return, he could be charged under Republican Gov. Henry McMaster's statewide order to stay at home except for work and other exceptions. It superseded all other orders when it took effect at 5 p.m. Tuesday.
Three weeks ago, McMaster asked hospitals 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.
In making his case for the First Amendment, Baumgartner, of Lexington, provided officers a copy of a March 26 letter by Columbia's city attorney to Mayor Steve Benjamin recognizing the "constitutional protections provided to religious activities."
That letter cites a state attorney general's opinion days earlier on whether McMaster's previous order giving law enforcement authority to disperse gatherings of three or more people applied to the freedoms of religion and assembly.
But the specific examples given in the nonbinding legal opinion were religious services inside a church, to include weddings or funerals. And McMaster's more restrictive order that overrides the others also specifically exempts services "conducted in churches, synagogues, or other houses of worship."
However, in announcing his stay-at-home order Monday, the governor said he could not void First Amendment religious rights. Instead, he encouraged churches to hold Easter services online if possible or, if they must get together, to meet outside or at least space far apart if gathering inside.
McMaster spokesman Brian Symmes said Tuesday the threat and citation "certainly seems to be politically charged by the city of Columbia leadership.
"Even worse," he continued, "this is the kind of selective enforcement that makes people lose faith in government."
A spokesman for Attorney General Alan Wilson declined to comment on Baumgartner's ticket, saying only a court could settle whether his activist ministry is exempt. Efforts to reach Planned Parenthood were unsuccessful on Tuesday.
Benjamin, one of the state's top Democrats, said his officers will enforce the law and that means being at home unless "you're going to essential work."
"We understand it’s very difficult balancing constitutional liberties in a time of a national, state and local state of emergency and we will obviously endeavor to be sensitive," Benjamin said. "But the ultimate role our officers have in not only maintaining the peace but also protecting the public health, which sometimes means protecting the public from themselves, means they’ll have to do their jobs."
Benjamin said the city attorney's letter was a response to concerns on whether staff could gather at houses of worship to set up online services under the city order.
"We’re going to do everything we can to make sure people are healthy and safe in these difficult times," the mayor said.