South Carolina Abortion Restriction May Be Void for Vagueness, But Doesn’t Violate Free Exercise Clause
From Bingham v. Wilson, decided today by Judge Richard Gergel (D.S.C.):
In the wake of Dobbs v. Jackson Women’s Health Organization (2022), the South Carolina Legislature enacted a ban on abortions after nine weeks of pregnancy. The Act [criminalizes] “perform[ing] or induc[ing] an abortion on a pregnant woman with the specific intent of causing or abetting an abortion” if an embryonic or “fetal heartbeat” has been detected on an ultrasound…. The Act contains three exceptions where abortions may be performed after nine weeks of pregnancy:
- the “Health Exception,” which exempts abortions performed “to prevent the death of the pregnant woman,” where the physician determines that a “medical emergency” exists, or “to prevent the serious risk of a substantial or irreversible impairment of a major bodily function, not including psychological or emotional conditions”;
- the “Fatal Fetal Anomaly Exception,” which exempts abortions after a physician determines in his or her “reasonable medical judgment, the unborn child has a profound and irremediable congenital or chromosomal anomaly that, with or without the provision of life-preserving treatment, would be incompatible with sustaining life after birth”; and
- the “Rape or Incest Exception,” which allows a physician to “perform, induce, or attempt to perform or induce an abortion” if the pregnancy was the result of rape or incest and “the probable gestational age of the unborn child is not more than twelve weeks” after the first day of the patient’s last menstrual period (“LMP”) and where the physician “report[s] the allegation of rape or incest to the sheriff in the county in which the abortion was performed” within 24 hours of performing the abortion” including the patient’s name and contact information.”
“As a matter of due process, a criminal statute that ‘fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute’ … or is so indefinite that ‘it encourages arbitrary and erratic arrests and convictions,’ … is void for vagueness.” …
Plaintiffs contend that “two features of the Health Exception render South Carolina’s Abortion Ban unconstitutionally vague: 1) ‘serious risk’ is so standardless
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