SC Supreme Court rules state’s contested 6-week abortion ban is constitutional, can go into effect

The S.C. Supreme Court ruled Wednesday the state’s new six-week abortion ban is constitutional, allowing the law to go into effect.

The 4-to-1 ruling comes after a new justice was elected and the General Assembly rewrote a previous six-week law. Earlier this year, the previous iteration of the court had ruled 3-2 against a different version of a six-week abortion ban, saying at the time that it violated a woman’s constitutional right to privacy.

The S.C. Supreme Court, made up of five male justices, in June 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. Before Wednesday’s decision, the state’s 20-week abortion law was in place, making South Carolina an unlikely abortion destination in the Southeast.

Specifically, South Carolina’s new law bans abortions after cardiac activity can be detected, usually around the six-week mark of pregnancy. Critics of the six-week ban say most women don’t even know they’re pregnant at that point.

Lawmakers included four exceptions in the six-week law: for rape and incest up to 12 weeks of pregnancy, in cases of fatal fetal anomaly, and in cases protecting the mother’s life.

Writing for the Supreme Court majority, Justice John Kittredge said the General Assembly crafted a law that balanced the rights of the mother and the unborn fetus.

“The legislature has made a policy determination that, at a certain point in the pregnancy, a woman’s interest in autonomy and privacy does not outweigh the interest of the unborn child to live,” Kittredge wrote.

Justice John Few, who voted to strike down the previous six-week law, switched his vote in this decision.

He cited changes made by the General Assembly to ensure access to contraception, including emergency contraception called “Plan B.”

“The most impactful change from the 2021 Act to the 2023 Act is actually a category of changes that are designed to approach the idea of choice in terms of promoting active family planning,” Few wrote in a concurring opinion. “First, the 2023 Act encourages couples to avoid unwanted pregnancies by providing insured access to contraceptives.”

Few also cited arguments made by the state Attorney General’s Office that said a woman can learn if she is pregnant before the six-week mark with a home pregnancy test and can have a blood test to confirm.

Limiting the right to an abortion was made possible when the U.S. Supreme Court overturned Roe v. Wade in its 2022 Dobbs decision. It allowed states to decide whether abortion was legal in their states.

In order to ensure South Carolina’s new six-week law would be upheld, the Republican-led General Assembly also changed the make up of the state’s Supreme Court in hopes for a more favorable decision.

The S.C. Supreme Court’s January 2023 decision striking down the 2021 six-week law was written by former Justice Kaye Hearn, who reached the mandatory 72-year-old retirement age this year. Hearn, who was the only woman on the state Supreme Court, was replaced by Justice Gary Hill.

After Hill’s election by the General Assembly, Republican lawmakers were confident they would have a 4-to-1 vote to uphold the revised six-week law.

In his dissent to Wednesday’s ruling, Chief Justice Donald Beatty showed a side-by-side comparison of definitions and the text of the 2023 law compared to the 2021 law to show they were similar if not identical.

Beatty also argued that the calculation for pregnancy starts from a woman’s last known menstrual period, so a woman may only have four weeks to learn she’s pregnant, rather than six.

“Unless they are constantly testing themselves in an effort to become pregnant, many women do not even know they are pregnant until their menstrual cycle is late (which can be five weeks LMP or more),” Beatty wrote.

The decision appears to go against public sentiment on the issue, at least according to one poll.

A Winthrop University Poll released in May found 37% of South Carolinians supported a ban on most abortions after six weeks, while 43% were against such a ban.

Higher percentages supported exceptions to a ban.

The poll found 81% of people supported an exception to protect the life of a mother, 78% said abortion should be allowed if the pregnancy was the result of rape, and 57% said abortion should be legal if the baby would be born with severe disabilities or health problems.

Gov. Henry McMaster, who signed the new six-week law in a small ceremony in May, lauded the court’s decision.

“The Supreme Court’s ruling marks a historic moment in our state’s history and is the culmination of years of hard work and determination by so many in our state to ensure that the sanctity of life is protected,” McMaster said in a statement Wednesday. “With this victory, we protect the lives of countless unborn children and reaffirm South Carolina’s place as one of the most pro-life states in America.”

The conservative policy organization Palmetto Family Council called the court’s decision the most “monumental victory for life” in the history of South Carolina.

“Not only does this law protect the lives of preborn babies, it also ensures expectant mothers receive the care they need; especially in the event of a life-threatening condition for them or their baby,” said Palmetto Family Council Interim President Mitch Prosser. “This is a great victory that we will celebrate, but we are not finished yet. Palmetto Family will continue to work toward the goal of not only making abortion illegal, but unthinkable in South Carolina and across the country.”

Planned Parenthood South Atlantic, which originally challenged the abortion law in court, said in a statement it will keep its doors open at its South Carolina clinics to provide abortions where they’re allowed under the restrictions.

But what’s allowed under the law is not enough, said Jenny Black, president and CEO of Planned Parenthood South Atlantic.

“This abortion ban takes away people’s ability to control what happens to their bodies, forcing many South Carolinians to remain pregnant against their will,” Black said. “Planned Parenthood and our partners will keep fighting for our patients’ ability to control their own bodies, lives, and futures — no matter what.”