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Colorado attorney general and 19 others back South Carolina abortion law challenge

Brief filed Wednesday in federal appeals court claims law banning abortion when fetal activity is detected would tax health care systems in other states as women seek care elsewhere

In this Feb. 17, 2021 file photo, Rep. Justin Bamberg, D-Bamberg, speaks against an abortion bill at a news conference in the Statehouse in Columbia, S.C. Twenty Democratic attorneys general have voiced their support, Thursday, Sept. 7, for a lawsuit challenging South Carolina's new abortion law, arguing that the restrictive measure could harm their states by taxing resources if woman cross borders to seek care. (AP Photo/Jeffrey Collins, File)

By Meg Kinnard, The Associated Press

Twenty Democratic attorneys general, including Colorado’s Phil Weiser, have voiced their support for a lawsuit challenging South Carolina’s new abortion law, arguing that the restrictive measure could harm their states by taxing resources if women cross borders to seek care.

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“The effects of the law are not confined to limits on particular procedures in a single state: history shows that people will cross state lines to receive proper care,” Virginia Attorney General Mark Herring, on behalf of the prosecutors, wrote in an amicus brief filed Wednesday with the 4th U.S. Circuit Court of Appeals.

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“As a result, South Carolina’s restrictive abortion laws will cause many of its citizens to seek abortion care in Amici States — potentially straining their health care systems.”

Signed into law by Republican Gov. Henry McMaster shortly after its passage earlier this year, the “South Carolina Fetal Heartbeat and Protection from Abortion Act” requires doctors to perform ultrasounds to check for a heartbeat in the fetus, which can typically be detected about six weeks into pregnancy. If cardiac activity is detected, the abortion can only be performed if the pregnancy was caused by rape or incest, or if the mother’s life is in danger.

Planned Parenthood attorneys sued immediately, and the entire law has been blocked from going into effect pending the outcome of a challenge to Mississippi’s new abortion law before the U.S. Supreme Court.

Earlier this month, the high court allowed a Texas law prohibiting abortions once medical professionals can detect cardiac activity to remain in force. The move — the nation’s biggest curb to abortion rights since the court announced in its landmark 1973 Roe v. Wade decision — has been closely watched by a dozen states like South Carolina, which have enacted bans early in pregnancy that remain blocked by the courts.

Opponents have argued many women do not know they are pregnant at six weeks, especially if they are not trying to conceive. And, they argue, with such an early deadline, the law gives women little time to consider whether to have an abortion.

Laws like South Carolina’s, Herring wrote, “would create vast ‘abortion deserts'” and “harm healthcare overall by creating serious spillover effects that make it more difficult to obtain proper care for other needs, such as miscarriages and ectopic pregnancies.”

The states — “many of whom support and subsidize a range of reproductive healthcare services — stand ready and willing to provide such services to those in need,” he added.

But experts say such safe haven states could become strained if more abortion restrictions take effect in conservative parts of the country.

Abortion providers in Colorado already say they are gearing up for a potential influx in patients coming from Texas — where the ban on abortions after about six weeks makes no exception for those pregnant as a result of rape or incest. When Texas barred abortions for a month during the pandemic, the number of Texas patients in Planned Parenthood clinics in Colorado, New Mexico, Wyoming and Nevada increased 12-fold. 

“The reality is that we’re not going to be able to meet the need alone,” a Planned Parenthood of the Rocky Mountains spokesperson has said.

All but three of the attorneys general on Wednesday’s filing also come from states with Democratic governors. In addition to the District of Columbia, the states that signed onto the brief are: California, Colorado, Connecticut, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia and Washington.

In July, 20 mostly Republican-led states went on record in support of South Carolina’s law, arguing in an amicus brief that a federal judge was wrong to pause the entire measure instead of just the provision being challenged.

That ruling, Alabama Attorney General Steve Marshall argued, “treads on South Carolina’s sovereign ability to decide for itself the purposes of its legislation” and “aggrandizes the judicial power by treating the court’s injunction of the challenged provision as erasing it entirely so the whole Act collapses.”


Colorado Sun reporter Shannon Najmabadi contributed to this report


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