Judge blocks SC’s 6-week abortion ban, punting legal case to all-male Supreme Court

South Carolina’s new six-week abortion ban is on hold, after a judge on Friday blocked the law from being enforced, sending the legal challenge back to the state Supreme Court to decide for the second time whether the ban is constitutional.

Circuit Court Judge Clifton Newman made the decision Friday from the bench at the Richland County Courthouse.

Later Friday, Gov. Henry McMaster tweeted that his lawyers filed an emergency motion, requesting the S.C. Supreme Court to “resolve this issue quickly.” The high court will now decide whether it takes the case.

”They (Supreme Court) may change their view,” said Newman, whose order keeps the state’s previous 20-week abortion law in place for now. “My view is the status quo should be maintained and the matter should be reviewed by Supreme Court as expeditiously as they determine that they want to review it.”

McMaster signed the “fetal heartbeat” ban into law Thursday, triggering an immediate lawsuit by Planned Parenthood South Atlantic, the Greenville Women’s Clinic and two doctors who perform abortions in South Carolina, asking for an immediate temporary restraining order that bars the ban from taking effect.

The governor held the bill signing with his wife, Peggy, Lt. Gov. Pamela Evette and five Republican lawmakers.

The media was not invited to attend.

“We will continue fighting to protect the lives of the unborn in South Carolina and the constitutional law that protects them,” McMaster tweeted Friday after Newman’s decision. “I hope that the Supreme Court will take this matter up without delay.”

The law, temporarily blocked for now, bans abortions at about six weeks of pregnancy, or after fetal cardiac activity can be detected, before most people know that they’re pregnant. It includes exceptions for rape and incest at 12 weeks, fatal fetal anomaly and the mother’s life.

However, given the number of abortion clinics in South Carolina — there’s only three, located in Charleston, Columbia and Greenville — plus an appointment backlog and a new requirement to get an abortion, the ban’s critics say lawmakers have essentially passed a near-total ban.

“Many women, including many of my patients, have no reason to suspect they may be pregnant as early as 6 weeks LMP (last menstrual cycle). For a woman with an average menstrual cycle of a period every 28 days, 6 weeks LMP is just two weeks past a missed period,” Dr. Terry Buffkin, a board-certified OBGYN who is licensed to practice in South Carolina and is the co-owner of the Greenville Women’s Clinic, said in the lawsuit.

Buffkin continued, “Many women also do not have any of the physical indicators of pregnancy, including a missed period, during early pregnancy. Many women do not menstruate at regular intervals and/or sometimes go beyond 6 weeks without experiencing a menstrual period, and therefore may not realize they are pregnant when they miss a period for that reason.”

Abortion providers take SC to court over 6-week ban

The South Carolina Supreme Court has already reviewed and ruled on a similar six-week ban.

In January, the state Supreme Court struck down the 2021 six-week ban, also signed by McMaster, ruling 3-2 that the law violated the state Constitution’s right to privacy.

After months of Republican infighting over abortion restrictions following the U.S. Supreme Court’s 2022 Dobbs decision, overturning the landmark case Roe v. Wade, lawmakers passed S. 474, believing this time it’ll be upheld by the high court.

With a ban at conception off the table, Republican lawmakers pushed for six weeks to curb the number of abortions performed in South Carolina, in part driven by high numbers of out-of-state visitors seeking the procedure because many nearby states have more restrictive laws.

Vicki Ringer, the director of public affairs for Planned Parenthood South Atlantic, told reporters Friday that Planned Parenthood commends the injunction so the clinics can continue services.

“Women can get the care they need, and we don’t care where they come from,” she said. “No matter what state they live in, we will welcome them and we will care for them. Medical care abortion access should not be limited by anyone’s zip code.”

Since the court’s decision in January — which kept abortions illegal past about 20 weeks — Justice Kaye Hearn, who wrote in the majority and was the only woman on the court, has retired because of the state’s 72-year age limit for judges.

In her place, the Republican-controlled Legislature elected now-Justice Gary Hill, resulting in an all-male court.

“We’ve defended the right to life in court before, and we’re prepared to do it again in this lawsuit brought by Planned Parenthood,” S.C. Attorney General Alan Wilson said Friday.

In a statement late Thursday, White House press secretary Karine Jean-Pierre said, “South Carolina’s ban will cut off access to abortion for women in the state and those across the entire region for whom South Carolina is their closest option for care.”

Arguing against the restraining order, Thomas Hyrdick, an assistant deputy solicitor general for the S.C. Attorney General’s Office, said the ban was specifically designed to address concerns brought up in the S.C. Supreme Court’s January decision.

“This again is a new law,” Hydrick said.

Planned Parenthood attorney Kathleen McDaniel told the judge Friday that while the 2021 six-week law was in effect for six weeks — it took effect after the U.S. Supreme Court’s Dobbs ruling but was later blocked — Planned Parenthood, which operates the Columbia and Charleston clinics, had to cancel 409 abortions before the state Supreme Court made its ruling.

As of Friday, McDaniel said Planned Parenthood had 75 women in its offices scheduled to have abortions.

Only five of those women are less than six weeks pregnant, McDaniel said.

McDaniel argued Friday that the six-week ban signed Thursday by McMaster is almost the same as the 2021 law struck down, but said this time the ban is more restrictive, noting the law’s exceptions only go up to 12 weeks, instead of 20.

“So it is a further more egregious violation of constitutional rights,” McDaniel told reporters after the hearing.