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South Carolina’s new all-male highest court reverses course on abortion, upholding strict 6-week ban

By Associated Press
Published: August 23, 2023, 8:33am

COLUMBIA, S.C. (AP) — South Carolina’s new all-male Supreme Court reversed course on abortion Wednesday, upholding a ban on most such procedures after about six weeks of pregnancy.

The continued erosion of legal abortion access across the U.S. South comes after Republican state lawmakers replaced the lone woman on the court, Justice Kaye Hearn, who reached the state’s mandatory retirement age.

The 4-1 ruling departs from the court’s own decision months earlier striking down a similar ban that the Republican-led Legislature passed in 2021. The latest ban takes effect immediately.

Writing for the new majority, Justice John Kittredge acknowledged that the 2023 law also infringes on “a woman’s right of privacy and bodily autonomy,” but said the state Legislature reasonably determined this time around that those interests don’t outweigh “the interest of the unborn child to live.”

“As a Court, unless we can say that the balance struck by the Legislature was unreasonable as a matter of law, we must uphold the Act,” Kittredge wrote.

Kittredge wrote that “we leave for another day” a determination on what the law’s language means for when exactly during a pregnancy the ban should begin, likely forecasting another long court fight on that question.

Chief Justice Donald Beatty provided the lone dissent, arguing that the 2023 law is nearly identical, with definitions for terms including “fetal heartbeat” and “conception” that provide no clarity on when the ban begins, exposing doctors to criminal charges if law enforcement disagrees with their expertise.

The Planned Parenthood South Atlantic clinic in Columbia had served only a “handful” of the roughly 30 patients scheduled for abortions Wednesday when the ruling came down, according to Dr. Katherine Farris, the group’s chief medical officer. The center — one of three clinics in the state — has paused abortions while officials work to understand the ruling’s implications. Farris added that colleagues working at South Carolina hospitals reported they also turned away patients this morning.

Beatty warned that the majority’s failure to address such a key question could lead to political retribution. He added that judicial independence and integrity were weakened by the court’s decision to backpedal on its prior ruling.

Hearn wrote the majority’s lead opinion in January striking down the ban as a violation of the state constitution’s right to privacy. She then reached the court’s mandatory retirement age, enabling the GOP-led Legislature to put Gary Hill on what is now the nation’s only state Supreme Court with an entirely male bench.

Republican lawmakers then crafted a new law to address Justice John Few’s concern, expressed in the January ruling, that the Legislature had failed to take into account whether the restrictions were reasonable enough to infringe upon a woman’s privacy rights.

Abortion providers, including Planned Parenthood South Atlantic, sued again. Planned Parenthood South Atlantic’s lawyer said during oral arguments this summer that both laws limited abortions at the same point in pregnancy and were equally unconstitutional.

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The 2023 law restricts most abortions once cardiac activity can be detected, declaring that this happens about six weeks after a pregnant woman’s last menstrual period. Lawmakers defined this as “the steady and repetitive rhythmic contraction of the fetal heart, within the gestational sac.”

But Beatty wrote that at six weeks, the fetus doesn’t exist yet — it’s still an embryo — and the heart doesn’t develop until later in a pregnancy. The American College of Obstetricians and Gynecologists says it’s inaccurate to call such “cardiac activity” a heartbeat.

“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,” Beatty wrote.

The newly sworn Hill joined Wednesday’s majority along with Few, who had previously voted to overturn the 2021 law. In a separate concurring opinion, Few wrote that the state constitution’s right to privacy does not provide blanket protections against “reasonable” invasions.

The majority opinion found a key difference in the lawmakers’ deletion of a reference to a pregnant woman having the right to make an “informed choice.” The 2023 law expanded “the notion of choice to the period of time before fertilization, certainly before a couple passively learns of a pregnancy,” Few wrote.

That change lengthens the window for couples to avoid unwanted pregnancies by promoting “active family planning.” In addition, the new law provides insured contraceptives to “almost all couples” and places responsibility on sexually active couples to actively use pregnancy tests, Few wrote.

Planned Parenthood South Atlantic’s lawyer had noted during oral arguments that such analysis ignored the possibility for failures in testing and contraceptives.

Since the U.S. Supreme Court last year overturned Roe v. Wade, the 1973 ruling that provided nationwide access to abortion, most GOP-controlled states have enacted or adopted abortion bans of some kind. All have been challenged in court.

Beatty must retire in 2024 because he, too, will reach the mandated retirement age of 72 for judges. Kittredge is the only judge who applied to replace him. The Legislature is expected to approve Kittredge and choose another new justice next year.