Fate of SC’s six-week abortion ban now rests with state Supreme Court

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Published: Oct. 19, 2022 at 7:25 PM EDT
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COLUMBIA, S.C. (WIS) - The fate of South Carolina’s current abortion law, and if it can be legally enforced, now lies with the state’s five Supreme Court justices.

On Wednesday, they heard arguments and questioned attorneys for about two-and-a-half hours in a legal challenge brought by abortion providers, who claim South Carolina’s “Fetal Heartbeat Law” violates the state constitution.

The law — which bans most abortions after fetal cardiac activity has been detected, typically around six weeks — has been on the books since Gov. Henry McMaster, a Republican, signed it in February 2021. But it had been blocked in federal courts until late June of this year, following the US Supreme Court’s overturn of Roe v. Wade.

The law was then blocked again in August by the state Supreme Court. Since that ruling, abortion has been legal in South Carolina before 20 weeks, though the state’s abortion clinics only offer the procedure in the first trimester.

There is no deadline for justices to issue their decision after hearing arguments Wednesday in downtown Columbia.

“Our decision will not be based on politics. It will not be based on our cultural differences. It will be based purely on what we believe the law says and requires in this instance,” Chief Justice Donald Beatty told those in the courtroom.

Attorneys representing abortion providers in South Carolina’s three clinics claim the current six-week abortion law violates rights in the state constitution to privacy and equal protection.

“As we’ve been clear in this case, there is a lot at stake here beyond abortion. What is at issue, in this case, is women’s right to determine what to do with their own bodies and how the course of their own lives will go,” Planned Parenthood attorney Julie Murray told reporters following the hearing.

Justices questioned if they find the six-week ban unconstitutional, where they draw the line on laws regarding when abortions can happen and other issues of bodily autonomy.

“I just wonder if we stretch this concept of privacy, where are we on laws that we accept are valid regarding prostitution, bigamy, polygamy, assisted suicide?” Justice John Kittredge asked Murray, who responded abortion providers are not asking justices to set new policy on abortion.

Attorneys for the state maintained abortion protection is not covered by the right to privacy, which they contended is limited to search and seizure.

They said that right was intended to protect South Carolinians from electronic surveillance from the government when voters approved its addition to the constitution in the 1970s.

“It cannot be reasonably suggested that the term ‘privacy’ in Article 1, Section 10 had anything to do with abortion,” Kevin Hall, an attorney for the state’s Republican House Speaker and Senate President, said.

Justices also questioned what would stop the legislature from passing other laws, like one to ban birth control, if the right to privacy is as narrow as the state argued it is.

“I understand you want to win this case, but you don’t have to emasculate the privacy rights of South Carolinians to do so,” Justice John Few said to Hall.

Both parties told reporters afterward that they can’t speculate on when justices will issue a ruling.

“I feel like we stuck to the rule of law and the plenary authority of the General Assembly, the governor, and the executive branch to pass and sign laws or legislation into law, and so I feel very guardedly optimistic that hopefully, our arguments will carry the day,” South Carolina Attorney General Alan Wilson, a Republican, said. “We’ll know in a few months or so.”

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