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Federal judge blocks SC abortion ban: 'This case does not present a close call'

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Malissa Burnette, abortion court hearing (copy)

Malissa Burnette, an attorney representing Planned Parenthood and Greenville Women's Clinic, speaks to reporters on Friday, Feb. 19, 2021, outside the federal courthouse in Columbia after a judge granted their request to temporarily halt South Carolina's abortion ban. File/Jamie Lovegrove/Staff

COLUMBIA — A federal judge temporarily blocked South Carolina's abortion ban from taking effect March 19, ruling that the so-called "fetal heartbeat" law is likely to be found unconstitutional after lengthier court hearings.

U.S. District Court Judge Mary Geiger Lewis granted a preliminary injunction, which will provide a more lasting halt to the ban than when she issued a brief temporary restraining order against it in February, one day after Republican Gov. Henry McMaster signed it into law.

In a 22-page ruling, Lewis shot down all of the claims from lawyers representing the state, writing that "it is nothing short of baffling when Defendants here make the fanciful, misbegotten, and misguided argument that the Act is constitutional, although surely, all the while knowing full well that it is not."

"This case does not present a close call," Lewis wrote. "In fact, based on the law, the Court is unable to fathom how another court could decide this issue differently than how this Court has decided it."

The South Carolina law, similar to bills passed in about a dozen other conservative states, would prohibit abortions after a fetal or embryonic "heartbeat" is detected, which typically occurs around six to eight weeks into a pregnancy. A fetus is generally not considered viable outside of the womb until around 24 weeks into a pregnancy.

Lewis noted that courts "have universally invalidated laws that ban abortions beginning at a gestational age prior to viability."

"Consequently, because the Court holds the Act bans abortion months before any fetus could be viable, Plaintiffs are likely to succeed on their claim that the Act is unconstitutional," Lewis wrote.

In an extra blow to McMaster and South Carolina Attorney General Alan Wilson, Lewis also rejected arguments from the state's lawyers that other parts of the law, such as requirements for physicians to show ultrasounds to women seeking abortions, should be upheld even if the section of the law banning abortions is struck down.

As a result, the entire law will be blocked from taking effect as longer court hearings proceed.

The expected move kickstarts what is likely to become a years-long legal process. Supporters of the abortion ban say their ultimate goal is to get the U.S. Supreme Court to take up the case and reverse or substantially amend its precedent that women have a constitutional right to abortion access before a fetus is viable outside the womb.

Planned Parenthood immediately filed the lawsuit hours before McMaster signed the bill into law. Wilson said he believes the law is constitutional and "deserves a vigorous defense to the U.S. Supreme Court if necessary."

Lewis rebuked the idea that new conservative justices on the Supreme Court are "secretly scheming" to overturn Roe v. Wade, the landmark 1973 decision that found women have a constitutional right to abortion access, saying she "has a much higher opinion of the High Court than that."

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After all, Lewis noted, many judges who were personally opposed to abortion have upheld that right in other rulings.

"Those judges’ and justices’ individual opinions on the matter was and is immaterial to their rulings," Lewis wrote. "And, that is as it should be."

And Lewis further rebuffed any claims that the politics of the president who nominated her, former President Barack Obama, had anything to do with her decision, saying "judges are not politicians in robes" and suggestions to the contrary are "misinformed at best, and highly offensive at worst."

"When the history of the District of South Carolina Court is written, it will show that we were neither liberals nor conservatives, Democrats nor Republicans," Lewis wrote. "It will instead establish that we did our level best to follow the law. That is certainly what the Court has done here."

Wilson and the other defendants could now decide whether to appeal Lewis' initial ruling to the higher Fourth Circuit Court of Appeals or proceed to more extensive arguments in her courtroom. In a brief statement after the ruling, Wilson did not indicate what his next steps will be.

"It is the constitutional duty of this office to defend in court any law enacted by our General Assembly," Wilson said.

McMaster's spokesman Brian Symmes referred to comments the governor made a week before the ruling at a news conference, where he said the abortion lawsuit is "a fight worth having."

"The right to life is very important," McMaster said. "This state is overwhelmingly in favor of that bill, and we will do whatever it takes, however long it takes, to see that the right to life is protected in South Carolina."

Planned Parenthood officials cheered the ruling, but the organization's president and CEO Alexis McGill Johnson also said they "know there is a long road ahead as the fight to preserve abortion access intensifies by the day."

"Make no mistake: politicians across the country have made it clear they won’t stop until access to abortion is completely out of reach," Johnson said. "Since Amy Coney Barrett was confirmed to the Supreme Court, we have seen an onslaught of attacks, with more than 280 abortion bills filed. Planned Parenthood and our partners will not back down."

The Supreme Court has yet to take up a pending case over a Mississippi law that would ban abortions after 15 weeks of pregnancy. Similar laws to South Carolina’s ban in close to a dozen other states have all been held up in the courts.

Follow Jamie Lovegrove on Twitter @jslovegrove.

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