Arguments over SC abortion ban return to newly all-male state Supreme Court

Organizations on both sides of debate hoping to prevail
The future of abortion in South Carolina will be back in the hands of the state’s highest court Tuesday.
Published: Jun. 27, 2023 at 5:07 AM EDT|Updated: Jun. 27, 2023 at 9:07 PM EDT
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COLUMBIA, S.C. (WCSC/AP) - The future of abortion in South Carolina will be back in the hands of the state’s highest court Tuesday.

State Republicans are hoping to restore a ban the South Carolina Supreme Court overturned earlier this year, but this time in front of the only state Supreme Court in the nation made up entirely of men.

Tuesday’s oral arguments will mark the second time since the U.S. Supreme Court struck down federal protections last summer that lawyers for the state and providers will present their arguments to the state Supreme Court. A 3-2 majority in January tossed a similar law that banned abortion once cardiac activity is detected, or at about six weeks and before most people know they are pregnant.

Organizations on both sides of the debate say they want this hearing to go in each of their favors. If not, there’s still not even a compromise they’re willing to hear to make both sides come to an agreement.

“This type of legislation is dangerous for women’s health,” Planned Parenthood South Atlantic spokesperson Vicki Ringer said.

Planned Parenthood says they believe doctors and women need to make these decisions for themselves. They say the government should not be involved in these personal, private decisions.

“So, they don’t even have time to make a decision or to give consent to be pregnant,” Ringer said. “It’s a violation of bodily autonomy, of our own healthcare rights, it’s against everything that the public says they support in South Carolina.”

On the opposing side, pro-life organization South Carolina Citizens for Life says their hearts break for the mothers during these irreversible decisions.

“We will continue to work diligently to protect the lives of the unborn until an amendment to the United States Constitution is passed,” South Carolina Citizens for Life Executive Director Holly Gatling said.

Gatling says about half of abortions happen within the six-week period already and they don’t want that number to rise.

“Our heart breaks for the lives lost,” Gatling said. “The babies lost. The human beings who will never experience a fulfilling day, a beautiful life.”

Republican Gov. Henry McMaster signed into law a similar ban in May that starts once cardiac activity is detected. That restriction has been temporarily placed on hold as the case involving the new ban moves through the courts. Meanwhile, abortion remains legal through 22 weeks in this conservative state.

The circumstances are different this time around after a change in the court’s makeup. Justice Kaye Hearn, the author of the lead opinion in January’s decision and the court’s only woman, has since left after reaching the court’s mandatory retirement age. An all-male bench with newly sworn Justice Gary Hill will hear Tuesday’s arguments.

The case will test the strength of the January ruling. State lawyers must overcome a higher bar after the state Supreme Court recently ordered them to argue why it should overturn the prior ruling. All five justices wrote their own legal explanations for the January decision in an unusual move that the state’s lawyers argue left that ruling devoid of any firm precedent.

Planned Parenthood South Atlantic’s lawyers argue that there’s no substantive difference between two laws that both limit abortions at the same point in a pregnancy. The collective opinions of the three justices in the majority all established that a roughly six-week ban violated the state constitution’s right to privacy, the lawyers wrote in a legal brief.

The new law resembles the 2021 ban that was struck down in January. But Republican lawmakers tweaked it in ways they expect will flip the vote of one justice who more narrowly joined the majority.

The state has argued in legal briefs that the new law responds directly to Justice John Few’s criticisms that the General Assembly did not consider whether or not a six-week ban gives patients enough time to learn they are pregnant to justify limiting their privacy rights involving decisions around abortion.

Lawmakers this time around took into account the patient’s opportunity to “engage in a meaningful decision-making process” and “make the necessary arrangements,” the lawyers said. They cited data from the U.S. Centers for Disease Control and Prevention that about 45% of abortions nationwide in 2020 occurred within six weeks of pregnancy and that nearly 81% occurred within nine weeks.

Planned Parenthood South Atlantic’s lawyers argued in their legal brief that the Republican-led General Assembly “mistakenly” assumed the new law’s “substantive unconstitutionality could be cured by substituting one set of magic words for another.”

This hearing is expected to start at 9:30 a.m. Tuesday in Columbia. It is not known how soon the public will learn of the court’s decision on whether to strike the bill for a second time or allow it to become the law of the state.