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Supreme Court to consider Mississippi abortion ban that could impact SC

Emory Smith - abortion ban (copy)

Emory Smith, a lawyer representing South Carolina Attorney General Alan Wilson, speaks outside the federal courthouse in Columbia on March 19, 2021. Wilson and other top officials are appealing a judge's ruling blocking a strict abortion ban from taking effect. File/Jamie Lovegrove/Staff

COLUMBIA — The U.S. Supreme Court decided May 17 to take up a lawsuit over Mississippi's 15-week abortion ban, paving the way for a potential rollback of longstanding precedent that could have significant implications for South Carolina's more restrictive law.

If the increasingly conservative court sides with Mississippi by reversing or substantially amending the landmark 1973 Roe v. Wade decision that found women have a constitutional right to abortion access before a fetus can survive outside the womb, it could create an opening for South Carolina's law to eventually take effect.

"That could be huge for South Carolina," said Mary Ziegler, a law professor at Florida State University who specializes in reproductive law and recently wrote a book on the history of abortion rulings.

Many legal experts, including Ziegler, say it's unlikely the court would have opted to hear arguments to the Mississippi law, which lawmakers passed in 2018 but lower courts blocked, unless a majority of the justices were open to the possibility of allowing the 15-week ban and setting a new standard for permissible abortion restrictions.

If that happens, they could either set a new standard for when states can limit abortion, such as when the fetus is capable of feeling pain, or they could leave that limit open and decide it in future cases.

"Then the question for South Carolina would be, if viability isn't the limit, what is the limit?" Ziegler said. "And South Carolina lawmakers are banking on the idea that it's a heartbeat. That's the alternative that they're proposing."

On the other hand, if the court sides with the lower courts that initially blocked Mississippi's law, it would further cement the existing limits on abortion restrictions, dooming South Carolina's chances of success.

Viability, the stage when a fetus could survive outside of the womb, has historically been considered to occur around 24 weeks into a pregnancy.

South Carolina already bans abortion at 20 weeks beyond fertilization — what doctors actually consider a gestational age of 22 weeks — under a law signed in 2016 that hasn't been challenged in court. The law provides exceptions only if the mother’s life is in jeopardy or a doctor determines the fetus can’t survive outside the womb.

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The ban only affected abortions in hospitals, since none of the three abortion clinics in South Carolina provided abortions beyond 15 weeks.

Earlier this year, South Carolina lawmakers approved a new law that would ban abortions after an ultrasound detects a "fetal heartbeat," which typically occurs around six to eight weeks into pregnancies. The bill included exceptions for cases of rape, incest, if the mother's life is in jeopardy or if the fetus has a fatal anomaly.

About a dozen states around the country have passed similar laws as part of a nationwide conservative movement against abortion access, boosting the odds that the Supreme Court may consider them.

All of those efforts, including South Carolina's, have been blocked by lower courts, which are bound to follow Supreme Court precedent. But if a new ruling from the high court changes the standard for Mississippi, it could have ripple effects for those other states around the country.

"It could mean that South Carolina's bill will be constitutional, but there are a lot of steps that would need to be taken for that to be the case," Ziegler said.

The vast majority of abortions in South Carolina occur in the first 14 weeks of pregnancy, according to 2019 data from the state's health agency. About 46 percent are performed in the first six weeks of pregnancy and about 54 percent are performed between 7 to 13 weeks.

While South Carolina waits for a ruling in the Mississippi case, which is unlikely to come before the summer of 2022, state Attorney General Alan Wilson and Gov. Henry McMaster are appealing the decision of U.S. District Court Judge Mary Geiger Lewis blocking the law to the 4th Circuit Court of Appeals.

While Wilson declined to directly comment on the potential impact of the Mississippi case on South Carolina's law, he called the Supreme Court's decision to take it up "a very positive development for the protection of the right to life."

Follow Jamie Lovegrove on Twitter @jslovegrove.

Jamie Lovegrove is a political reporter covering the South Carolina Statehouse, congressional delegation and campaigns. He previously covered Texas politics in Washington for The Dallas Morning News and in Austin for the Texas Tribune.

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