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Federal judge to decide 'shortly' on granting longer block of SC abortion ban

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COLUMBIA — A federal judge said March 8 that she would decide "shortly" on whether to grant a longer block of South Carolina's abortion ban, saying she first needs to determine whether the governor and state House speaker should be allowed to intervene in the case.

While U.S. District Court Judge Mary Geiger Lewis decides whether to grant a preliminary injunction blocking the law, her restraining order that temporarily suspended the ban in February and was extended on March 5 remains in effect until March 19.

The preliminary injunction would provide a more lasting halt to the ban than the temporary restraining order, which was granted one day after Republican Gov. Henry McMaster signed the bill into law.

McMaster and House Speaker Jay Lucas, R-Hartsville, recently filed requests to intervene and make their own arguments supporting the law in addition to South Carolina Attorney General Alan Wilson, who is representing the state in the case.

If Lewis decides that McMaster and Lucas are allowed to intervene, she said she should first need to review their arguments before issuing her ruling on the preliminary injunction.

Though Lewis did not immediately rule on the preliminary injunction, she continued to express skepticism about the law's constitutionality.

"I don't believe there's been any change in the law in the last two weeks that would change the situation," Lewis said.

The South Carolina law would prohibit abortions after a fetal or embryonic "heartbeat" is detected, which typically occurs around 6 to 8 weeks into a pregnancy. Most abortions in the state are conducted after six weeks of pregnancy, and opponents of the ban note that many women may not even realize they are pregnant by that point.

If Lewis grants the preliminary injunction, as expected, it will kickstart 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 their precedent that women have a constitutional right to abortion access before a fetus is viable outside the womb.

A fetus is generally not considered viable outside of the womb until around 24 weeks into a pregnancy.

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." 

Close to a dozen other conservative states have recently passed similar bills, all of which have been held up in the courts. The U.S. Supreme Court has still not decided whether to consider a Mississippi law that would ban abortions after 15 weeks of pregnancy.

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If Lewis grants the preliminary injunction, Wilson could either appeal to the higher Fourth Circuit or proceed to more extensive arguments in Lewis' courtroom.

In addition to disputes about the constitutionality of the ban, arguments on March 8 centered around "severability" — whether other parts of the new South Carolina law could remain in effect if the ban is struck down.

That includes a section of the bill the requires physicians to conduct an ultrasound and let the pregnant woman know she is allowed to view it before performing an abortion. 

Julie Murray, an attorney representing Planned Parenthood, argued that the rest of the law is inextricably linked to the section that bans abortions after six weeks and that the judge should strike down the entire law.

"It's not for this court to do the Legislature's job of crafting legislation that complies with the Constitution," Murray said. 

Deputy Solicitor General Emory Smith, arguing in court on behalf of Wilson and South Carolina's Thirteenth Circuit Solicitor Walt Wilkins, countered that those other sections of the law could be upheld as constitutional separate from the ban and so should remain in place.

Lewis indicated that she sided with Planned Parenthood on that dispute, saying the ultrasound requirement is "not independent of the abortion ban" and she could not see how those two parts of the bill are not "inextricably linked."

Asked after the hearing about Lewis' questions and comments that seemed to suggest she did not buy his arguments, Smith said he would not predict an outcome in the case.

"All I'll say is that we made the arguments, developed them based upon our filings in court and made them as best as we could," Smith said. "We believe that they're sound, but it's in the judge's hands now and up to her to decide how she wants to rule."

Three local solicitors were initially named as defendants in the lawsuit because they represent the cities that have the only three abortion clinics in the state: Wilkins of Greenville, Fifth Circuit Solicitor Byron Gipson of Columbia and Ninth Circuit Solicitor Scarlett Wilson of Charleston.

Gipson announced in court last month that he would not be opposing the preliminary injunction and would not defend the abortion ban. He recently entered into an agreement with Planned Parenthood not to investigate or prosecute any abortions that happen while the court cases continue.

Smith revealed on March 8 that Solicitor Wilson has not yet taken a position on the case and may soon enter into a similar agreement with Planned Parenthood.

Malissa Burnette, another attorney representing Planned Parenthood, said after the hearing that she has no problem with Lewis' decision to take some more time to rule on the preliminary injunction and expects an order will come sometime this week.

"She is very thorough," Burnette said. "I respect her taking it under advisement and I know that she will study everything. Everybody had a chance to have their say."

Follow Jamie Lovegrove on Twitter @jslovegrove.

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