SC’s 6-week abortion ban faces heat in Supreme Court arguments as state seeks to defend it
For the second time in less than a year, the South Carolina Supreme Court is considering constitutional challenges against a six-week abortion ban critics say unduly burdens a woman’s right to reproductive care.
The S.C. Supreme Court, made up of five male justices, on Tuesday heard oral arguments over whether a revived six-week abortion ban in South Carolina violates a woman’s right to privacy under the state’s constitution. For now, the abortion ban remains temporarily suspended as the court continues to mull its constitutionality. In the meantime, the state’s previous ban at about 20 weeks remains in effect.
Tuesday’s hearing serves as the latest battle in a years-long war over how restrictive abortion access should be in South Carolina. In May, shortly after the General Assembly passed a six-week abortion ban that would prohibit abortions once fetal cardiac activity is detected — S. 474 — Gov. Henry McMaster signed the bill into law.
Plaintiffs, including Planned Parenthood South Atlantic, the Greenville Women’s Clinic and two physicians who provide abortions in South Carolina, argued the ban is essentially a replica of a previous six-week abortion ban — S. 1 — that was struck down as unconstitutional by the state Supreme Court in January and, for that reason, S. 474 is also unconstitutional.
“My clients are back here today because the General Assembly ignored this Court’s ruling and enacted a virtually identical law, Senate Bill 474, which also ban abortions at six weeks,” said Planned Parenthood attorney Catherine Humphreville. “Aside from the obvious similarities on the face of the bills themselves, you can take it from the sponsors of the bill that the law is the same. They said they were, quote, ‘Reestablishing the ban on abortions after a fetal heartbeat is detected.’”
Indeed, the court wasted little time Tuesday in pressing the state on how the now-contested law differs from the previous ban.
“I want you to pinpoint exactly the material differences between the 2021 act and this court’s decision in January and the current 2023 act, and tell us how those reported differences impact our analysis on Article One, section 10,” state Supreme Court Justice John Kittredge said to Assistant Deputy Solicitor General Thomas Hydrick, one of two attorneys representing the state.
Article One, section 10 of the South Carolina Constitution, which provides a right to privacy, is what the court relied upon in nullifying S. 1. In its majority opinion striking down the state’s previous law, the Supreme Court said including a finding about a woman’s “informed choice” was contradictory to other provisions within the ban.
Lawyers for the state said to address the court’s previous concerns regarding the ban, the Legislature made three changes to the law by: one, repealing a legislative finding involving a woman’s informed choice to receive an abortion; two, changing the definition of a clinical diagnoseable pregnancy; and three, changing the definition of contraceptives to clarify that contraceptives are permissible under the new law and include emergency contraceptives that would be available after conception.
Lawyers from Planned Parenthood on Tuesday asked the justices “not to create ... an arbitrary line in determining pregnancy, but to look at this Court’s precedent and claim from day one that (S. 474) is an unreasonable invasion of privacy,” Humphreville said.
But the state argued the court’s January decision did not create a binding precedent that automatically renders S. 474 unconstitutional.
“The state’s argument would be that no one opinion established a rule of law. And in the absence of that rule of law, this court can actually look at the scope of the privacy provision,” Hydrick said.
State Supreme Court Justice John Few, who voted with the majority in the court’s January decision, agreed.
“Even if we adhere to (our January decision), we still have to analyze (S. 474) on a constitutional level,” Few told Humphreville.
The contested law bans abortions at around six weeks of pregnancy, or once fetal cardiac activity is detected, at a time when most people don’t know that they’re pregnant. With only three small abortion clinics in South Carolina — Charleston, Columbia and Greenville — plus an appointment backlog and new requirements to get an abortion, abortion-rights backers say the law is essentially a near-total ban.
The arguments
Tuesday’s hearing lasted about 70 minutes and was marked by active participation by all five justices. Among them, they peppered the lawyers with dozens of questions on topics ranging from obscure legal terms such as “collateral estoppel” to practical situations such as how much time a woman would have between her recognition of being pregnant and being able to get an abortion.
Few centered most of his questions around the state’s new purported interest in ensuring that women are more responsible in initially detecting a pregnancy.
Pressing Humphreville, Few said the state was arguing that it was actually expanding a woman’s or couple’s choice in reproduction by urging the responsible use of contraceptives and pregnancy tests when they engage in behavior that may lead to pregnancy rather than narrowing their window of choice from the time they learn they are pregnant.
“Is that not a valid state interest?” Few asked Humphreville.
“I don’t think that that’s an expanded interest in choice, your honor,” Humphreville said. “If it’s the Legislature’s determination that a six-week ban is dependent on that form of choice, then it’s possible that later on the Legislature could determine that birth control or (the contraceptive) plan B should be illegal.”
The plaintiffs’ arguments to the justices lacked evidence showing that women don’t have the ability to determine whether they’re pregnant via an over-the-counter pregnancy test before missing their menstrual cycle.
Planned Parenthood argues that after a woman misses her menstrual cycle, an over-the-counter pregnancy test is 99% effective, but Humphreville was unable to provide Few the accuracy percentage for the same test used prior to a woman missing her cycle.
“I don’t have the answer to that, your honor,” Humphreville said. “What are more accurate is blood tests; however, there are additional obstacles to people obtaining a blood test” to determine whether they’re pregnant.
Chief Justice Don Beatty took perhaps the most active role in questioning the two attorneys for the state, Hydrick and Grayson Lambert, repeatedly taking issue with their characterizations of numerous matters in the case.
Early in the hearing, Hydrick told the justices that “women can know as soon as seven to 10 days after conception that they are pregnant, and that would still leave a period of certain weeks for them to make a decision (whether to have an abortion). ... I think a woman can know they are pregnant by that time. … We also know as a matter of statistics and evidence they do know they are pregnant by that time.”
Beatty objected: “Where is this evidence? We keep talking about the evidence. There’s not one shred of evidence admitted in this record.”
Beatty also questioned state lawyer Lambert about a distinction in the contested law that gives a woman three months to decide on an abortion in a case of rape or incest, but only six weeks in other cases.
“Why is it,” asked Beatty, “that the life of an unborn child is so valuable, and so compelling at that point (at six weeks)... but if a rapist is the source of the sperm, then the life of that child doesn’t matter too much any more? You get 12 weeks to decide if you are going to have an abortion.”
When Lambert said the language concerning the three-month delay when a rape is involved represents a “legislative compromise,” Beatty told him, “So your compelling interest is really not compelling at all.”
Lambert replied that the Legislature, “as the policy making body of the state, determined that there were other interests that might necessitate a separate treatment in certain instances, such as rape or incest.”
Newly all-male court will decide
While certain features of Tuesday’s hearing were seemed familiar, such as the woman’s privacy issue, the court’s makeup did not.
In February, the General Assembly voted to replace retiring Justice Kaye Hearn — who, before reaching the state-mandated retirement age of 72, was the only woman on the bench — with Judge Gary Hill, marking the first time in more than three decades the high court would not have a female justice on the bench.
Hearn wrote the court’s majority 3-2 opinion against the previous abortion ban in January, which also included state Supreme Court Chief Justice Donald Beatty and Justice John Few. Justices John Kittredge and George James dissented.
The now-contested law capped months of Republican infighting over abortion restrictions following the U.S. Supreme Court’s 2022 Dobbs decision, after the state House last year first passed its own ban at conception and refused to debate the Senate’s proposed six-week ban, despite an unwillingness by the upper chamber to pass a total ban on abortion Both chambers passed similar versions of a six-week ban this year and, after a months-long standoff, the House agreed to the Senate’s proposal.
Last month, Senate Majority Leader Shane Massey, R-Edgefield, highlighted state health data that showed, at the previous 20-week ban, South Carolina reported 6,279 abortions in 2021 and 7,277 abortions in 2022 — an increase, in part, due to out-of-state visitors from states with stricter abortion restrictions.
The Supreme Court made no ruling Tuesday, and justices did not signal when they might rule.
John Monk contributed reporting.
This story was originally published June 27, 2023 at 12:16 PM.
