All-male South Carolina Supreme Court hears challenge to new abortion ban

South Carolina’s “heartbeat” abortion ban was back before the state Supreme Court on Tuesday, as state attorneys argued a lower court’s order should be reversed and the law should be allowed to take effect.

The legislation, which passed and was signed into law last month by Gov. Henry McMaster (R), bans abortions after an ultrasound detects cardiac activity, which is usually at about six weeks. A judge put the law on hold until the case is resolved, meaning abortion is still allowed up to about 20 weeks after fertilization. 

The court struck down a nearly identical version of the law in January, ruling it violated South Carolina’s constitutional right to privacy. But that 3-2 opinion was written by Justice Kaye Hearn, the court’s only woman. Hearn has since been replaced after reaching mandatory retirement age, and the justices are now all men.

In the January decision, all five justices wrote their own opinions, a move that the state’s lawyers argued meant the ruling had no precedent and could be set aside. 

The lawsuit was filed by Planned Parenthood South Atlantic, a South Carolina clinic and two physicians almost immediately after the ban became law. They argued the ban was essentially the same as what the court ruled against in January, and there was nothing that happened in the interim that allowed the state to try again.

According to attorneys for the state, Republicans in the legislature made three key changes to distinguish the updated version of the law from the previous version based specifically on questions raised by Justice John Few— a potential swing vote.  

The new law removed a legislative finding that the bill gave women an “informed choice” about having an abortion; it changed the definition of a clinical diagnoseable pregnancy; and it changed the definition of contraceptives to clarify that contraceptives are allowed under the new law, including emergency contraception.

In January, the court’s majority opinion noted that six weeks is not enough time for an “informed choice.” On Tuesday, the state argued that a woman has the ability to know she is pregnant within seven to 10 days after conception, which would still leave a period of weeks for them to make a decision about having an abortion.

“I think a woman can know they are pregnant by that time. …We also know as a matter of statistics and evidence they do know they are pregnant by that time,” Assistant Deputy Solicitor General Thomas Hydrick said.  

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Chief Justice Donald Beatty, who concurred with the majority in January, responded that “anything is possible” and that the state submitted “not one shred of evidence” to show the probability that someone knows they are pregnant when a fetal “heartbeat” is detected.

State attorneys also argued that the updated law encourages women to think in advance about how they would respond to an unwanted pregnancy, and encourages the use of contraception and pregnancy tests. That gives them alternatives to abortion, and gives them “choice.”

Catherine Humphreville, arguing for Planned Parenthood, disagreed with Justice John Kittredge characterizing the law as “pro choice” legislation.

Humphreville said the opportunity for choice with a six-week ban is “fleeting,” adding that the state was “grasping at straws” by suggesting the law expanded choice. 

Humphreville argued contraception does not expand choice and is not a substitute for abortion. Any abortion bans that hinge on the availability of contraception could later be used to outlaw birth control, like the emergency contraceptive Plan B, Humphreville said.

Humphreville said by encouraging repeat pregnancy tests, the state is shifting the burden onto women to avoid violating the right to privacy. 

“As a practical matter, that is not what women are doing. People are not sitting around taking a pregnancy test every day. They have jobs, they have children, they have other determinations. They are not regularly tracking their menstrual cycles,” Humphreville said. “That does not change anything.”