South Carolina on path to ban all abortions in post-Roe America, experts say
If the U.S. Supreme Court overturns the landmark 1973 decision that ensured a woman’s constitutional right to an abortion, as reported Monday night in a leaked draft opinion, there would be nothing to stop South Carolina lawmakers from pushing forward with an outright ban on the procedure.
Once considered a distant possibility destined for court challenges, the idea now of a total abortion ban seems a legitimate —and potentially imminent — reality in South Carolina, according to interviews Tuesday with political and legal experts in the state.
“If the decision does come down, as it looks like it will, abortion is not going to be possible in the state of South Carolina,” said Claire Wofford, an associate professor at the College of Charleston. “Lawmakers could immediately move to ban abortion. There is that intermittent legislative step that would need to happen, but I couldn’t imagine it would take very long.”
Wofford, whose research focuses on American politics with an emphasis on the U.S. legal system, reviewed the 98-page February draft opinion obtained and published by Politico Monday night.
On Tuesday morning, the Supreme Court confirmed the authenticity of the document, in which Justice Samuel Alito argued Roe v. Wade “was egregiously wrong from the start” and declared, “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
The nation’s highest court also condemned the unprecedented leak of the draft opinion, with Chief Justice John Roberts announcing he has also directed the Marshal of the Court to launch an investigation into the source of the leak.
Wofford said the draft opinion stands to reverse “the most controversial, and in terms of gender equality, important constitutional decision we’ve ever had.”
In South Carolina, a solidly Republican state that has seen its Legislature become increasingly conservative, lawmakers have long sought to enact more abortion restrictions.
In 2016, under Republican Gov. Nikki Haley, the state signed a 20-week abortion ban into law. Since then, lawmakers have sought to impose more restrictions on when a woman can get an abortion in South Carolina.
South Carolina lawmakers last year passed a “fetal heartbeat” bill. It aims to ban abortions after a fetal heartbeat is detected, typically at the six-week mark of a pregnancy, which critics argue is before when most women know they are pregnant.
Gov. Henry McMaster has long been a vocal supporter of eliminating abortions in the Palmetto State.
McMaster has issued executive order to prohibit taxpayer money from going to Planned Parenthood and has been a proponent of a personhood bill, which would ban abortions in the state except when the life of the mother is at risk.
McMaster also has previously rejected federal money for family planning because part of the money goes toward subsidizing abortion providers.
The governor declined to comment before the print deadline about his current attitudes toward the latest development in the ongoing national abortion debate. His office said the governor believes Roe v. Wade should be overturned, saying it was wrongly decided.
McMaster also filed an amicus brief on the Mississippi case that is being considered by the U.S. Supreme Court.
“There is no fight more important than the fight for life. That is why South Carolina has stood tall and fought for life at every turn and will continue to do so until the lives of the unborn are protected once and for all,” McMaster said at the time.
McMaster has also said it should be up to the states to decide whether abortion should be legal.
U.S. Sen. Lindsey Graham, R-S.C., said in a tweet Tuesday that he would be in favor of leaving abortion up to the states, writing a state-by-state approach would be “the most constitutionally sound way of dealing with this issue.”
No trigger law in South Carolina
While South Carolina does not have a so-called “trigger law” that would immediately impose a ban on abortions as soon as the courts overturn the precedent of Roe v. Wade, lawmakers have tried to impose them as recently as January of this year.
The bill, filed by state Sen. Richard Cash, R-Anderson, is not expected to advance given that there is only two weeks left in the legislative session.
But South Carolina has been a battleground for abortion rights.
As recently as last week, the State House approved a bill that requires doctors to tell women who seek medication to have an abortion that there is an unproven way to reverse the procedure.
Last year, McMaster signed the South Carolina Fetal Heartbeat and Protection from Abortion Act into law, which triggered a lawsuit that asked the courts to prevent its enforcement that same day.
A federal district court issued a temporary restraining order blocking the law the day after McMaster signed it. A preliminary injunction issued a month later remains in effect.
The collection of bills speaks to a hunger that conservatives, particularly in the South, have in trying to outlawing abortion.
S.C. Republican Party Chairman Drew McKissick welcomed the findings of the Supreme Court’s draft opinion, but condemned the leak of the document.
“Nonetheless, South Carolina Republicans and the pro-life movement everywhere are encouraged and our work protecting the unborn isn’t finished,” McKissick said in a statement provided to The State newspaper.
No matter the decision of the court, Ann Warner, the CEO of the Women’s Rights Empowerment Network, said the advocacy group, which lobbies in the State House, would continue to make sure people know how to get care and will continue to advocate for people to have access to abortion care.
“I think it’s really important that we not speculate too much, even though it’s tempting to do so we really need to see what that opinion is, the formal opinion that comes down from the Supreme Court,” Warner said. “We won’t have to wait too much longer. It should be within a matter of weeks that we will see the official opinion. I think we’ve been seeing signals for months and months that this court is poised to significantly dismantle if not completely dismantle Roe v. Wade.”
Warner said her group is outraged over the draft opinion calling it a “radical departure” from precedent.
“Many of the people who aren’t in this lobby day in day out will be the most affected by any restriction on abortion access, people in rural areas, people from low wealth communities, people who are already encountering barriers and access to health care or to the political process,” Warner said.
This story was originally published May 3, 2022 at 2:38 PM with the headline "South Carolina on path to ban all abortions in post-Roe America, experts say."
