Texas abortion law can lead to ‘copycat’ bills in states like South Carolina

COLUMBIA, S.C. (WCSC) - The U.S. Supreme Court has so far been silent on Texas’ ban on abortions after six weeks, allowing the law to take effect Wednesday.

But, a South Carolina law also banning abortions after six weeks was blocked by a federal judge earlier this year.

Legal experts say the difference between one going into effect while the other is tied up in the courts is how they deal with enforcement.

“South Carolina does it in the traditional way saying that a prosecutor has to go after someone who violates the law,” Drexel University Law Professor David Cohen said. “Texas does it in a new way saying that the state is not involved at all. There are no prosecutors, no licensing official, it’s that private individuals get to sue a doctor or anyone else who helps with a six week or later abortion.”

Mary Ziegler, author of “After Roe: The Lost History of the Abortion Debate”, says the Texas law is able to go around Roe v. Wade, the landmark Supreme Court ruling that legalized abortions before fetal viability, whereas the South Carolina law challenges it.

“The bill prohibits any official in Texas like anyone from a governor to a state legislature to a judge from enforcing the law and instead outsources that to private citizens,” Ziegler said.

In addition, the Texas law, which Ziegler notes bans most abortions in the state, gives any non-government official the ability to bring a civil action against anyone assisting with an abortion or performing one. That potential lawsuit comes with a potential $10,000 or more fine.

“That private individual doesn’t need to be related to the patient. It can be anyone. It can be the patient’s boyfriend or it can be someone in the middle of Montana,” Cohen said.

Unlike the South Carolina law, the Texas ban doesn’t include exceptions for abortions as a result of rape or incest.

Legal experts say if this law continues to stay in effect, other states could try to pass laws with similar language.

“Other states may want to have the kind of bargain that Texas made, which is one that allows you to functionally ban abortions in court without losing in court and having to pay attorney’s fees,” Ziegler said.

Cohen echoed Ziegler and said, “I think it’s hard to imagine a world where we are not going to see copycats of this law.”

But with the high court set to take up a 15-week ban next summer, Ziegler sees why conservative states may not pass a similar ban.

“On the other hand states like South Carolina are looking at the Supreme Court and looking at the fact that the Court is taking a major abortion case for this summer and thinking they no longer have to strike the type of compromise Texas has struck,” she said. “The question is do you want to ban abortions or get rid of Roe v. Wade?”

Ziegler also said the Supreme Court’s decision to stay silent in this case is telling.

“I think the fact that the court waited this long sends a message in and of itself...Texas abortion providers framed this as an emergency and certainly the Supreme court isn’t treating it as such,” she said.

However, there is nothing stopping the South Carolina General Assembly from passing a similar law while also continuing their fight to overturn Roe.

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