South Carolina’s six-week abortion ban temporarily blocked by state Supreme Court

In a unanimous decision, the South Carolina Supreme Court has temporarily blocked the state’s six-week abortion ban.

The six-page order was signed Wednesday, Aug. 17, by all five sitting justices.

The order means that for the time being as litigation continues, the state’s abortion clinics can proceed with abortion procedures up until 20 weeks of pregnancy, which was state law prior to the Legislature passing the six-week ban last year.

Gov. Henry McMaster and Attorney General Alan Wilson said they’ll continue to defend the six-week law.

In a statement, McMaster’s spokesman Brian Symmes said, in part, “we’re confident that we will prevail in state court.”

In their order blocking the law, the state’s Supreme Court justices said that although the U.S. Supreme Court ruled in June there is no right to privacy in the federal Constitution, it is an “arguably close question” whether South Carolina’s own Constitution affords some right to privacy that may affect state laws concerning abortion.

“At this preliminary stage, we are unable to determine with finality of the (six-week abortion) Act under our state’s constitutional prohibition against unreasonable invasions of privacy,” the justices wrote. In the ruling, the justices referred to a section in the state’s Constitution that says that “the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures and unreasonable invasions of privacy shall not be violated.”

The court’s order set forth a schedule whereby each side in the case — abortion providers and various state government officials — would file briefs with the court.

“While we are disappointed, it’s important to point out this is a temporary injunction,” Wilson said in a statement. “The court didn’t rule on the constitutionality of the Fetal Heartbeat law. We will continue to defend the law.”

The unanimous decision Wednesday by the South Carolina Supreme Court comes as the Legislature considers a more restrictive abortion ban after the U.S. Supreme Court overturned Roe v. Wade.

On Tuesday, the House Judiciary Committee advanced a near-total abortion ban that would allow only the life and health of the mother as an exception for a legal abortion. And on Wednesday, right across the street from the S.C. Supreme Court, South Carolina senators took public testimony on a more restrictive abortion law.

The House is scheduled to return to session Aug. 30, with the Senate expected to return after Labor Day.

House Speaker Murrell Smith, R-Sumter, said in a tweet Wednesday that the six-week ban “is the overwhelming will of the South Carolina Legislature, and therefore a reflection of the will of the people of this state.”

While “disappointed” in the temporary block of the six-week law, Smith, an attorney, said, ”I remain confident of the law’s constitutionality and look forward to it being the law of our state once again.”

South Carolina’s six-week ban, which prohibits abortions typically around six weeks of pregnancy and allows for certain exceptions, had been blocked by the federal courts but took effect in June after the U.S. Supreme Court’s decision to overturn Roe.

In response the state court’s temporary block Wednesday, Jenny Black, president and CEO of Planned Parenthood South Atlantic said in a statement, “We applaud the court’s decision to protect the people of South Carolina from this cruel law that interferes with a person’s private medical decision.

“For more than six weeks, patients have been forced to travel hundreds of miles for an abortion or suffer the life-altering consequences of forced pregnancy. Today the court has granted our patients a welcome reprieve, but the fight to restore bodily autonomy to the people of South Carolina is far from over.”

Joe Cunningham, the Democratic nominee for governor who has made abortion rights a focus of his campaign, said in a statement Wednesday he was relieved by the court’s decision, calling the ban an invasion of privacy.

“This draconian law is not based in science and strips women of their fundamental freedoms. This law is bad for South Carolina families, doctors and businesses,” Cunningham said. “Our fight is far from over but today’s ruling is another sign that the people of South Carolina want more freedoms — not less.”

Will SC lawmakers slow total ban due to court’s ruling?

McMaster told reporters Thursday that the state Supreme Court’s decision to temporarily block the “fetal heartbeat” law could lead the Legislature to slow down its deliberations on further restrictions.

“That may be the impact of it, it may not be, but I know that … I have been encouraged by the deliberate, careful steps that have been made in the Legislature and by those supporting and opposing what has been proposed,” he said.

McMaster’s office said it was confident the law ultimately will be upheld, despite the constitutional privacy argument.

“When that provision was put into the constitution, that was in the context of eavesdropping and electronic surveillance and things of that nature,” McMaster said.

The governor also threw cold water on a controversial Senate proposal that’s drawn national attention because it would outlaw, in part, websites that provide abortion information to residents. McMaster said that bill would go too far and is unconstitutional after Cunningham’s campaign sent a text to potential donors that said McMaster wanted to ban websites with information on abortion resources.

The bill, filed by state Sen. Richard Cash, R-Anderson, would ban abortions, except to protect the life of the mother. It also would ban people from seeking information about abortion and websites from providing information to state residents about how to obtain an abortion.

“Everyone has a constitutional right of the First Amendment to say things, to speak. We know that,” McMaster said. “Such a restriction, I think, I’m confident would not pass the House or the Senate. Sen. (Shane) Massey, Rep. (John) McCravy, have both said that particular provision is not going to see the light of day, and I don’t think it will.”

Reporter Joseph Bustos contributed to this report.