McMaster advances appeal of preliminary injunction of Fetal Heartbeat Act

McMaster has said he will take the case all the way to the Supreme Court if needed.
Published: Mar. 8, 2022 at 11:45 AM EST|Updated: Mar. 8, 2022 at 5:26 PM EST
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COLUMBIA, S.C. (WCSC) - Gov. Henry McMaster called on the entire Fourth Circuit Court of Appeals to review a federal district court’s preliminary injunction of the state’s Fetal Heartbeat Act.

A panel of three judges with the same court upheld a lower court’s ban of the South Carolina Fetal Heartbeat and Protection from Abortion Act last month.

“We’ve said we will take this case all the way to the United States Supreme Court, and that’s exactly what we’re going to do if we have to,” McMaster said. “There is no right more precious and more fragile than the right to life, and we will do everything in our power to protect it.”

McMaster signed the bill into law on Feb. 18, 2021. In addition to limiting abortions after a fetal heartbeat is detected, the act also requires the abortionist to give the mother the opportunity to view an ultrasound, hear the fetal heartbeat and receive information about fetal development.

Three abortion providers, Planned Parenthood South Atlantic, the Greenville Women’s Clinic and Terry Buffkin MD, filed a lawsuit challenging the law the state the same day McMaster signed it into law.

A federal district court in South Carolina immediately issued a preliminary injunction blocking the law. U.S. District Judge Mary Geiger Lewis filed an injunction to prevent the law from being enforced while the litigation continued in March of 2021.

The panel of judges from the Fourth Circuit Court reviewed the lower court’s decision to block enforcement of the entire law rather than to simply sever the “six week ‘fetal heartbeat’ abortion ban component” of the law.

The lower court reasoned the injunction was appropriate because it determined the remaining portions of the act were “‘mutually dependent on’ the six-week abortion ban,” court documents state.

“The district court reasonably determined that, notwithstanding the Act’s severability clause, its provisions were not severable,” the appeals court’s ruling states. “A straightforward review of the function of each of the provisions remaining in the Act after the removal of the six-week abortion ban reveals that the entirety of the statute was designed to carry out the ban.”

Because the provisions serve “to carry out the six-week abortion ban,” they make “little sense without the ban,” the order states, adding that the lower court did not abuse its discretion by declining to sever the remaining portions of the act.

McMaster now wants the full court to take on the issue and determine whether the court’s own three-judge panel made the correct decision in upholding the ban.

As written, the bill was said to prevent most abortions in the state. It would block doctors from performing an abortion when a fetal heartbeat is detected, which normally happens as early as about six weeks into a pregnancy. Doctors or healthcare providers who perform an abortion in violation of the law could face a felony charge with a $10,000 fine, two years in jail or both.

Critics of the measure argued that six weeks is about the time some women learn they are pregnant.

The bill includes exceptions for rape, incest, fetal anomalies and threats to the health of the mother. The bill also stipulates that doctors must give the sheriff the patient’s contact info within 24 hours if an abortion is performed on a woman who was pregnant as a result of rape or incest.

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