Follow the Law

 Federal judges have a way of getting in the way of Southern politicians who want to bend the law of the land to their own ends. Back in the 1960s, five federal judges from the Deep South, most appointed by a Republican president, put themselves in the eye of the civil rights storm to force states to desegregate schools and follow the rule of law, as historian Jack Bass wrote in his 1981 book, Unlikely Heroes.

Now comes U.S. District Judge Mary Geiger Lewis in South Carolina, who reminds us how state legislators might not always get what they want, just because they pass a law. If something is unconstitutional on its face, then it can be put on hold. 

That’s what happened last week when Lewis issued an injunction stopping a recently passed ban on almost all abortions in South Carolina. In February, Gov. Henry McMaster signed into law a bill that banned abortions after detection of a fetal heartbeat, not viability of the fetus, as is the current legal standard. A fetal heartbeat can be detected around six weeks after conception, whereas viability is presumed to start at 20 weeks. Abortions currently are illegal after viability, but not before. Some 96% of abortions in South Carolina occur after six weeks but before 20 weeks, according to court records.

What Lewis wrote in a 22-page opinion is notable for how it bashed state arguments that the judge should deny the injunction, but also how people need to realize judges enforce the law, not reactionary politics of the moment.

Lewis wrote that granting a motion by Planned Parenthood to stop enforcement of the new law wasn’t even a close call. “In fact, based on the law, the Court is unable to fathom how another court could decide this issue differently,” she wrote, citing multiple cases from across the country that held abortion is legal until viability. Lewis then described how the group was likely to succeed in proving the new law was unconstitutional.

But, her message on how “judges are not politicians in robes” should sink in to politicians who try to use the courts for political purposes. Across the country, legislatures have passed fetal heartbeat bills, assuming that three new Supreme Court justices appointed by President Trump would overturn the landmark Roe v. Wade decision that struck down laws prohibiting abortion.

“When the history of the District of South Carolina Court is written, it will show that we were neither liberals nor conservatives, Democrats nor Republicans,” Lewis concluded. “It will instead establish that we did our level best to follow the law. That is certainly what the Court has done here.”

Hear, hear.