CHARLESTON, S.C. (CN) — The South Carolina Supreme Court upheld a law banning most abortions after six weeks of pregnancy only months after it struck down a similar law on constitutional grounds.
The high court's 4-1 decision represented a major victory for Republican lawmakers in the deep-red state, who have struggled to restrict access to the medical procedure amid intraparty disputes and constitutional challenges.
The court also lifted an injunction that has been in effect since the state's abortion providers filed a suit in May challenging the law. As a result, abortions in the state are now illegal after cardiac activity is first detected, or after about six weeks of pregnancy, with exceptions for fatal fetal anomalies, rape, incest or to protect the mother’s life.
Gov. Henry McMaster said in a statement the court’s decision was a “historic moment” for the state.
“With this victory, we protect the lives of countless unborn children and reaffirm South Carolina’s place as one of the most pro-life states in America,” he said.
A similar "fetal heartbeat" law was passed in 2021 and went into effect after the U.S. Supreme Court’s decision in Dobbs v. Jackson. But abortion providers in South Carolina quickly challenged the law in court, arguing, among other things, that the restrictions represented an unreasonable invasion of privacy for patients under the South Carolina Constitution.
The State Supreme Court agreed with the abortion providers in a 3-2 decision in January, sending lawmakers scrambling to draft new legislation that would survive judicial scrutiny.
Debate over the contentious issue consumed the spring legislative session as moderate Republicans joined Democrats to block a bill that would ban most abortions from conception. In May, conservative lawmakers overcame filibusters in the House and Senate to pass a new anti-abortion bill. Gov. Henry McMaster quickly signed it into law.
Some Republican lawmakers acknowledged that the bill was imperiled if it failed to address the issues raised by the Supreme Court.
Others hoped a shakeup at the Supreme Court would flip the opinion in their favor.
In February, the legislature chose Justice Gary Hill to replace retiring Justice Kay Hearn, who wrote the majority opinion in the first abortion case. Hill’s selection over two female candidates through the state’s opaque legislative election process created the only all-male state supreme court in the country while raising doubts about the judiciary’s independence.
Jace Woodrum, executive director of the ACLU of South Carolina, accused the court of reversing its own precedent in a statement issued Wednesday.
“Instead of allowing us to make our own decisions and define our own paths in life, extremist legislators and hand-picked judges have forced their way into doctors’ offices, dining rooms and religious sanctuaries in an effort to control our choices and force their priorities on us,” Woodrum said.
Hill joined the majority Wednesday in an opinion written by Justice John W. Kittredge.
Kittredge said that the court’s “fractured” decision in January was not precedential in this case.
Two of the three justices then in the majority, Hearn and Chief Justice Donald W. Beatty, determined that a constitutional right to privacy protected the right of women to seek abortions.
But the third justice, John Cannon Few, focused on a different flaw in the 2021 law.
Few wrote in a concurring opinion that the state had a right to protect unborn life, but lawmakers failed to weigh that right against the legitimate interests of the mother while crafting the 2021 law. As a result, they passed an “arbitrary” law that was unconstitutional.
Republican lawmakers zeroed in on Few’s opinion during debates on the new bill.
Senator Tom Davis, a Republican attorney from Beaufort, told colleagues on the floor in April he believed Few could be swayed if they addressed his concerns.
“I want Justice Few’s vote on this,” Davis said on the Senate floor in April. “I don’t want the constitutionality of an abortion bill decided because a man replaced a woman on the state Supreme Court. I think that would be a terrible look for this state.”
On Wednesday, Few wrote lawmakers appeared to make a “sincere attempt” to address the issues he raised in the new bill. The legislature heard from experts in fetal development and considered the interests of pregnant women.
“I am certain many will find my analysis unsatisfying,” Few wrote. “Constitutional analysis, however, is not a team sport.”
Beatty wrote in a blistering dissent that medical professionals have stated there is no cardiac activity within six weeks of gestation — only the “nascent flickering of electrical impulses from a group of inchoate cells.”
“Thus, the title and content of the legislation are a misnomer if it is viewed as a six-week ban because the terminology is medically and scientifically inaccurate,” he wrote. “As such, it is the quintessential example of political gaslighting; attempting to manipulate public opinion and control the reproductive health decisions of women by distorting reality.”
Rather than address this inherent problem in the legislation, the court punted, Beatty wrote.
“This omission, however, leaves our state with no guidance as to the 2023 act's reach,” the chief justice wrote. “How can anyone know how to comply with the law — particularly where it carries the threat of criminal penalties — and how can lawyers advise their clients, in the absence of a determination of this key point?”
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