It took a near perfect storm of factors — including a Democratic filibuster and pressure to get real business done before the end of a session — but the legislature of a very red state, South Carolina, has killed a bill that would have sought to ban an estimated 97 percent of the state’s legal abortions.
This year’s state legislative sessions have featured a big wave of anti-abortion activity in Republican-controlled jurisdictions. Like the most recent and most notorious example, Iowa’s proposed law (it is awaiting action from GOP governor Kim Reynolds) requiring ultrasounds for women seeking abortions and then banning them when a fetal heartbeat is detected (as early as six weeks into a pregnancy), nearly all of them violate federal constitutional precedents protecting the right to choose before fetal viability (usually about 24 weeks into pregnancy). Other than election-year posturing, such “laws” mostly represent efforts to set up a definitive challenge to Roe v. Wade in anticipation of Donald Trump’s getting another Supreme Court appointment and overruling the pro-choice majority recently confirmed in the 2016 Whole Women’s Health v. Hellerstadt decision.
That decision also spelled doom for the alternative right-to-life strategy of shutting down abortion providers through bogus health and credentialing requirements. So the RTL movement has mostly resigned itself to waiting for Trump to save their bacon and laying the groundwork for a judicial victory against reproductive rights.
In South Carolina, the legislature’s Republican majority was happily contemplating a bill to ban a particular abortion method used in rare late-term abortions when a pro-choice Democratic state senator called their bluff, offering an amendment to ban all abortions (with exceptions for cases of rape, incest, or threats to the life of the woman) and daring them to pass it.
If his proposal had passed, Hutto said he’d be giving Republicans what they wanted: the most direct way to challenge the 1973 U.S. Supreme Court decision that overturned state bans on abortions. No other state would have such a broad abortion ban.
“I’ve heard all along that y’all want a challenge to Roe v. Wade. This is a straight up challenge,” the Orangeburg Democrat said.
Hutto’s Republican colleagues very nearly rose to the bait, passing his amendment by a 28-10 margin. Republican governor Henry McMaster said he’d sign the bill if it came to his desk, despite its blatant unconstitutionality (it was also supported by Lieutenant Governor Kevin Bryant, a primary opponent of McMaster’s). But then, on final passage of the underlying measure, after three days of a Democratic filibuster, six Republican senators voted with all the Democrats to send the bill back to a committee, effectively killing it for the year.
This was at most a symbolic victory for the pro-choice cause — much like the symbolic defeats it has suffered in state after state as bills sure to languish unenforced or face federal court injunctions have passed. The fact that most of the state’s Republican pols lined up immediately behind an extremist gesture mockingly offered by one of their opponents was not a good sign. And the whole incident is best understood as pre-season training for the pitched battles sure to occur in an awful lot of states if Trump gets another Justice and Roe is overturned or significantly modified.