JULY 5, 2022
DAVID M. RUBIN
dmrubin@syr.edu
The world must seem so simple to Governor Henry McMaster. Now that the U.S. Supreme Court has, in the Dobbs decision, handed him the opportunity to outlaw abortion entirely in South Carolina, he is lusting to do it. He plans on calling a special session of the Legislature to produce a bill that bans abortion even in cases of rape, incest, or the imperiled health of the mother. It's all so simple....to him.
And simple to Supreme Court Justice Brett Kavanaugh, too. In Dobbs Kavanaugh confidently predicted the Court was withdrawing from balancing the interests of a pregnant woman with those of the fetus. But Kavanaugh and McMaster are both deluded about the finality of Dobbs. The legal, emotional, medical, and ethical fallout is just beginning.
Before the Republican majority in Columbia turns women into incubators and shreds our right to privacy, it must confront these likely scenarios If a woman has an ectopic pregnancy that her doctor believes could kill her, can she abort the pregnancy?
If a pregnancy is causing a woman to suffer high spikes in blood pressure, should she be able to abort the pregnancy, or risk dying? If an ultrasound image shows that a woman is carrying a fetus without a skull, but with a heartbeat, should she be able to abort the pregnancy? If a woman suffers a miscarriage or her child is stillborn, should the police investigate, and should a zealous prosecutor bring charges of murder? If the woman visits her doctor and is experiencing a miscarriage, can the doctor assist to make sure she doesn't die of sepsis, or will the doctor and mother be charged with murder?
What is the legal status of embryos produced during in vitro fertilization? Must all such embryos be implanted into the woman, or can some be discarded or frozen for future use? Does the State control the disposition of these embryos, or should that be the decision of the couple who produced them? Does the State intend to outlaw in vitro fertilization entirely, rather than risk the destruction of embryos?
If a pregnant woman leaves her home in South Carolina and obtains an abortion in a state where it is legal, can she be prosecuted when she returns to South Carolina? How would the authorities know she did it? Would they have a right to seize her electronic devices to examine her travels, communications and web searches? Would such "evidence" be admissible in a court? What about the Fifth Amendment right against self-incrimination and her right to privacy? Could South Carolina charge her doctor in another state with murder? Will medication abortion be legal in South Carolina? Will the "morning after pill" be legal? Will the use of contraceptive devices be legal? Will the great Republican minds in the Legislature find the answer to the question: "When does life begin?" Will victims of rape or incest be required to report the crime to police? If they do, will the police demand that the rape or incest victim carry the unborn child to term? If the fetus is aborted, will the victim face a murder charge? Will the Legislature make it illegal to provide information to women in South Carolina about the availability of abortion services in other states? Can a woman or her partner be prosecuted for using the Internet to learn about the availability of abortion services in other states?
Can a provider of abortion services pay the Post and Courier for an ad explaining how to obtain an abortion in a neighboring state? If the Post and Courier publishes the ad, has it broken the law? Would punishing the Post and Courier violate its First Amendment rights? Could this DCDP website legally
publish an abortion services ad or otherwise offer abortion advice without risking prosecution?
Just such a case, Bigelow v. Virginia, was decided by the Supreme Court in 1975 (although I would not expect the Republicans in Columbia to know it). The ad came from a New York City provider of abortion services. It was published in a Virginia newspaper to educate women in Virginia who might be in need of the service. At the time, abortion was not yet legal in Virginia, and communicating about it was also illegal. The newspaper was therefore punished for having run the ad, It appealed, arguing the ad was speech protected by the First Amendment. The Supreme Court agreed. Bigelow was decided nearly 50 years ago, when the Supreme Court protected civil liberties, unlike today, when only the Second Amendment is accorded broad and ever-expanding protection by this reactionary Court.
Every one of the fact patterns discussed above, and a thousand variations, will occur in South Carolina if McMaster and the Republican Legislature race down this road. Police forces, prosecutors, grand juries, petit juries, and judges will be overwhelmed and exhausted. Some prosecutors will refuse to prosecute.
Some sheriffs will not investigate. Juries will engage in nullification. Doctors will defy the law to save their patients. Perhaps, after twenty years of this societal chaos, we will return to a saner world
in which a woman and her doctor alone make these decisions. But for now, Democratic legislators in Columbia should loudly raise these questions and make Republicans answer them. Then vote against whatever Draconian legislation McMaster and his henchmen propose. Between now and November, right-thinking people must use the issue of privacy and a woman's right to reproductive freedom as a tool to energize voters. Replacing McMaster with Joe Cunningham is a necessary start, as is putting
more Democrats in the Legislature. It can be done.