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The GOP is learning just how hard it is to legislate abortion

South Carolina’s state senate on Thursday refused to pass a bill that would outlaw abortion after fertilization, with some exceptions, despite a Republican majority in that body. In South Carolina, as in states like Michigan, Kansas, Idaho, and Indiana, the challenge of legislating such extreme bans is becoming increasingly apparent — and abortion is becoming a landmine issue for Republicans.

Five Republican senators joined Democrats in opposing the bill in South Carolina’s senate, with GOP Sen. Tom Davis threatening a filibuster should the measure as written come to a vote. Davis joined all three Republican women in the senate, as well as one male GOP colleague, in filibustering the House’s severe restrictions; Davis and one woman Republican senator, Penry Gustafson, voted in favor of the compromise measure.

South Carolina has already passed an onerous law banning abortion after six weeks, with exceptions up to 20 weeks in the case of rape or incest. The compromise legislation the senate did pass reduces that time period to 12 weeks and requires police to collect DNA from an aborted fetus.

It is more restrictive than the so-called Fetal Heartbeat Bill the General Assembly passed last year, before the Supreme Court decided the Dobbs vs. Jackson case, which overturned Roe v. Wade, but avoids the total ban with no exceptions that House Republicans initially attempted to pass. That ban is stayed while South Carolina’s Supreme Court hears a challenge to the law under the right to privacy, and the state’s pre-Dobbs 20-week ban is presently in effect, the Associated Press reported Thursday.

Thursday’s defeat of the South Carolina bill, as well as a number of legal challenges to similarly restrictive measures in states like Idaho, North Dakota, and Indiana and ballot measures to protect abortion rights in Michigan and Kansas, speaks to the practical difficulties in passing and enforcing abortion bans.

“We have a tendency to think of banning abortion as an on-off switch,” Rachel Rebouché, the dean of Temple University’s Beasley School of Law, told Vox on Saturday. But in a post-Dobbs landscape, “the amount of legal complexity is going to amplify.” That is playing out, she said, in states like Idaho and North Dakota where restrictions have faced court challenges, and in legislatures as the dangers of severely restricting abortion access become clear.

South Carolina got a reality check on abortion restrictions

South Carolina’s House of Representatives wrote the thwarted bill banning abortion after fertilization; although it passed there, and the 30-member Republican majority in the Senate had enough votes to pass it, they didn’t have a filibuster-proof majority. Senate Democrats exploited that vulnerability, and made a coalition with Davis, as well as Sens. Katrina Shealy, Sandy Senn, and Penry Gustafson — all women — and one other Republican.

“Yes, I’m pro-life,” Shealy, who had previously voted for abortion restrictions, said during Thursday’s special session. “I’m also pro-life for the mother, the life she has with her children who are already born. I care about the children who are forced into adulthood that was made up by a legislature full of men so they can take a victory lap and feel good about it.”

Ultimately, Republicans had to go back to the negotiating table and came out with a six-week ban and more onerous restrictions on abortions after rape and incest. The original bill, which passed the House, had exceptions for rape and incest, as well as the life and health of the mother, Rep. Neal Collins (R) told Vox. “The Senate […] passed a bill that bans abortion after six weeks, with the same exceptions as well as [exceptions for] fetal anomalies, which is pretty much the same exact bill that we passed last year, we called it the Fetal Heartbeat Bill.”

Now, the bill will have to go back to the House, which can either concur with the Senate version of the bill, or not — in which case the General Assembly would have to form a committee of three Democrats and three Republicans from each chamber to try and come to a compromise that suits both chambers. That could happen as soon as next week.

The new bill restricts the exceptions for rape and incest to twelve weeks, a significant departure from the Fetal Heartbeat Bill which allows exceptions up to 20 weeks. The new bill also requires two doctors to affirm that fetal anomalies are fatal, and mandates that DNA from an abortion due to rape and incest go to law enforcement. “I presume that’s for evidence-gathering in case they’re going after whoever is raping or committing incest,” Collins said.

The special session brought into stark relief what happens when the rhetoric of anti-choice politicians clashes with real life — real people’s problems, needs, and beliefs — after the Supreme Court demolished the legal guardrails of Roe v. Wade and Planned Parenthood v. Casey, Senate Minority Leader Brad Hutto (D) told Vox.

“[Anti-choice legislators] could make whatever political points they wanted to, because they had a backstop,” he said. “They knew nothing they passed was ever going to go into effect. They could pass all they wanted to, and it didn’t matter — and it allowed them to let their rhetoric to just soar to the red meat of their party, because they could gin up the party knowing that nothing they said was ever going to be enacted into law. Then, all of a sudden […] it’s like the dog that caught the bus.”

South Carolina legislators are now understanding, as well, that a full abortion restriction is not popular with voters, Hutto said. National polling on the topic indicates as much; a Pew Research study released just prior to the Supreme Court’s decision to overturn Roe v. Wade, shows that 61 percent of Americans support abortion in all or some cases. Those numbers can be abstract when extrapolated to a legislative district. But legislators are now having to confront what those numbers mean in context; in a Facebook post dated August 30, Collins wrote that he polled his most conservative constituents regarding abortion access. Of the 43 surveys which were returned, “The results clearly show the vast majority of even very conservative people want exceptions to abortion,” he wrote.

“Even churchgoing, Southern Baptist, conservative ladies” by and large aren’t willing to impose their own beliefs about abortion onto others, Hutto said, challenging the monolithic concept of southern voters and indicating that abortion could be a major issue in the November midterms — even in a conservative state like South Carolina. “The governor’s race in South Carolina is now competitive,” Hutto said. Gov. Henry McMaster, a Republican who ascended to the office when Nikki Haley left to join the Trump administration, indicated he would sign a total abortion ban if it came across his desk; with that statement on the record, and abortion becoming an increasingly contentious issue for voters, Democrats have at least a chance at taking the governor’s mansion in November. “Choice is on the ballot,” Hutto said.

There are many levers of pressure against abortion restrictions

Among the several states with abortion bans on the books, only some have actually been able to go into full effect in the wake of the Dobbs decision. Mississippi, Louisiana, Arkansas, Oklahoma, South Dakota, Missouri, Idaho, and Tennessee all have in place bans on nearly all abortions, with only some states offering exceptions in the case of serious health risks to the parent. Six-week bans have taken effect in Ohio, Kentucky, and Georgia, but are being challenged in court, as is Florida’s 15-week ban, the Idaho, Louisiana, and Kentucky laws, and a Wisconsin ban dating from 1849, according to CNN.

Lawsuits are a meaningful method of fighting these laws, or at least delaying them, even after Dobbs, Rebouché told Vox. “Overturning Roe has not kept abortion out of courts,” she said, adding that “it’s a matter of time” before the bans enacted face a challenge of some sort. That could look like state-level legislation protecting abortion, referenda to codify abortion rights in state constitutions, and pressure from international human rights bodies and corporations, though neither of those bodies have any legislative or enforcement power.

“Some of our states are really outliers in the international order on abortion,” Rebouché said. “International rights bodies have taken countries to task over these kinds of things,” and “stigma and shame” can be very powerful motivators.

But securing the right to abortion right now depends on the interplay between voter participation and the courts, a dynamic that played out recently in Michigan. Voters will have a referendum on their midterm ballots in November, after the state’s supreme court knocked down a state election board’s decision to omit the measure from the ballot over typographical errors on petitions calling for the referendum, as the New York Times reported Thursday.

In August, Kansas voters soundly defeated the legislature’s attempt to inject language into the state’s constitution explicitly stating that it does not grant the right to an abortion, as the Associated Press reported at the time. The Kansas Supreme Court in 2019 had affirmed the right to an abortion under the state’s Bill of Rights; the August referendum upheld that judgement.

“Kansas was a shock to everyone’s systems,” David Cohen, a professor at Drexel University’s Thomas R. Kline School of Law and Rebouché’s co-author on a paper about the post-Dobbs legal landscape called “The New Abortion Battleground,” told Vox. “I don’t think anyone saw what happened coming.” Michigan, though, “is going to give us a big look at the future,” in terms of how states might navigate around abortion bans and legally enshrine the right to abortion. California and Vermont have such referenda on their ballots this coming November, but the outcome in those situations is likely more predictable than in Kansas, Michigan, or Kentucky, which has a ballot initiative to eliminate Kentuckians’ right to abortion under the state constitution.

In the long term, the Supreme Court’s makeup will have to change before there’s any real challenge to Dobbs, Cohen said. “As soon as that happens, [progressives] will be the ones asking the court to overturn precedent,” which could take the form of arguments on the grounds of religious freedom, the vagueness of anti-abortion legislation, equal protection claims, and right to travel claims, Cohen said.

In the meantime, should support for abortion rights rally voters in November, as Democrats are hoping it will, the calculus of what’s possible at the federal level could change, too, Cohen said. While a number of Republican senators have tried to propose nationwide restrictions on the right to abortion, others, like Sen. Roger Marshall (R-KS) have discerned that the momentum and appetite for such measures isn’t there. “I just don’t see the momentum at the federal level,” he told the Washington Post on July 25 — before the anti-abortion measure in his own state failed.

As legislators are forced to confront how unpopular abortion bans actually are and how difficult they are to enforce, there’s potentially more room for pushback in the form of legal protections. The Women’s Health Protection Act, which failed in the Senate in May and which President Joe Biden has promised to sign should it pass, could have a chance if Democrats hold on to the House and pick up enough Senate seats. “Would I ever put money on that? No,” Cohen said. “But there’s a chance.”

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