South Carolina Supreme Court Upholds State’s Six-Week Abortion Ban
- August 25, 2023
The South Carolina Supreme Court upheld August 23 the state’s newly enacted abortion law, which largely bans the procedure after roughly six weeks of pregnancy.
South Carolina Governor Henry McMaster signed the Fetal Heartbeat and Protection Act in May. The law, which went into effect immediately but was temporarily put on hold by a state trial court, includes exceptions for rape or incest during the first 12 weeks of pregnancy, for the life and physical health of the woman, and for fatal fetal anomalies.
Planned Parenthood South Atlantic, Greenville Women’s Clinic, and two physician plaintiffs challenged the law, arguing the abortion ban violated rights to privacy, equal protection, and substantive due process under the South Carolina Constitution.
The new law is nearly identical to a 2021 statute that was permanently struck down by the South Carolina Supreme Court in January by a narrow 3-2 majority, which included a now-retired justice. The state’s high court found the 2021 law was an unreasonable invasion of privacy that was unconstitutional under article I, section 10 of the state constitution. Planned Parenthood South Atlantic v. South Carolina, No. 28127 (S.C. Jan. 5, 2023).
In its latest ruling, the state high court vacated the preliminary injunction that the trial court put in place and held the 2023 law passed constitutional muster. According to the high court, the 2023 law was materially different than the 2021 law and included additional findings and purposes.
The high court also noted that its previous decision declaring the 2021 law unconstitutional was a fragmented decision in which a majority of the justices found that the state’s constitution did not expressly include a right to an abortion.
According to the high court, the South Carolina Constitution only bars unreasonable invasions of privacy. The high court acknowledged that the 2023 law “infringes on a woman's right of privacy and bodily autonomy,” but found the legislature’s policy determination in enacting the abortion ban after the detection of a “fetal heartbeat” was reasonable.
“Through the legal and judicial lens under which we must operate, while mindful of the difficult and emotional issue before us, we cannot say as a matter of law that the 2023 Act is unreasonable and thus violates the state constitution,” the high court said.
A sole dissenting justice argued the 2023 law effectively reinstated the 2021 ban on abortion upon the detection of a "fetal heartbeat” defined under the statutes as "cardiac activity, or the steady and repetitive rhythmic contraction of the fetal heart,” which usually occurs at six weeks of gestation. However, according to medical professionals, a "fetal heart" that is capable of "contraction" does not exist until later in the pregnancy, the dissenting opinion said.
“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. 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,” the dissent said.
Planned Parenthood S. Atl. v. South Carolina, No. 28174 (S.C. Aug. 23, 2023).