New Six-Week Abortion Ban Goes to South Carolina Supreme Court

The future of access to abortion in South Carolina is up in the air once again, as the state’s top court Tuesday appeared to be divided over whether to overturn a new law that’s substantially similar to an earlier six-week ban it struck down in January.

The South Carolina Supreme Court was one of the first top courts to consider if a state constitution offered more protection for abortion than the federal constitution, following the US Supreme Court’s June 2022 decision in Dobbs v. Jackson Women’s Health Organization.

In a 3-2 decision, the state top held that a so-called “heartbeat” abortion law violated the South Carolina Constitution’s right to privacy. The outcome reinstated South Carolina’s 20-week abortion law.

It didn’t take long, however, for state lawmakers to pick up the gauntlet and enact a new six-week ban, which they did on May 25. A state trial court almost immediately blocked its enforcement in late May.

Assistant Deputy Solicitor General Thomas Hydrick insisted that the January decision—written by then-Justice Kaye Hearn—isn’t precedential and, in any case, the two laws aren’t identical.

But nothing has happened between January and now to justify giving the state another “bite at the apple,” Catherine Peyton Humphreville told the court. Humphreville, who represents Planned Parenthood South Atlantic and other plaintiffs, is an attorney with Planned Parenthood Federation of America.

Different Law

Both heartbeat laws prohibit abortions once fetal or embryonic cardiac activity has been detected. They impose criminal penalties, licensing sanctions, and potential civil liability on doctors and other licensed health-care professionals.

But the 2023 law is different, Hydrick said. The state’s interest in protecting fetuses is now “compelling,” not merely “legitimate,” he said. People also now have more time to decide on whether to have an abortion—the law doesn’t actually say “six weeks,” he said.

Chief Justice Donald W. Beatty asked for evidence, saying there was nothing in the record to indicate that cardiac activity may be detected later than six weeks into a pregnancy. Hydrick referred to a study showing that 45% of all abortions nationwide are performed before the six-week mark, proving people can discover they’re pregnant with enough time to make a decision about abortion within the time period set by the statute, he said.

Humphreville disputed the study—it reported a national average, not the South Carolina average, they said.

Much of the debate centered around Justice John Cannon Few’s January concurring opinion. There, he said that the constitutional right to privacy includes the right to meaningful choice. The state’s interest in protecting fetal life therefore must be balanced against those rights.

Whether a person is given an opportunity to make a meaningful choice depends on whether they even know they’re pregnant in time to engage in a meaningful decision-making process and to make arrangements to have an abortion, Few wrote. Without knowing about a pregnancy, choice is “an illusion,” he said.

The law’s validity turned on one fact—whether a person could know that they were pregnant, Few said. There was no evidence the lawmakers considered that question, he said.

Few returned to the issue during Tuesday’s argument, asking whether the fact that lawmakers identified birth control, emergency contraception, and earlier pregnancy testing as alternatives to abortion expanded the law’s definition of “choice.”

Operates ‘Exactly the Same’

The new law operates exactly the same way as the old one, Humphreville said. They questioned the legitimacy of the state’s argument—also brought up by William Grayson Lambert, senior litigation counsel, who argued on behalf of Gov. Henry McMaster (R)—defining its interest as “compelling” instead of simply legitimate.

State lawmakers have a right to make policy decisions about when their interest becomes compelling, Justice John W. Kittredge said, pressing Humphreville on whether they agreed that the new law gives people more time to make an informed choice. The opportunity for choice is still “fleeting,” they said.

The notion that the law expanded the choices is “grasping at straws,” Humphreville said.

Prior Decision’s Effect

The attorneys disagreed on the nature of the January decision. Hydrick and Lambert insisted that it’s not precedential and that it doesn’t control this case because it concerns a different statute. But the court’s January majority specifically held that the old law violated the South Carolina Constitution’s right to make one’s own medical decisions, Humphreville said.

Much of the debate centered on Few’s concurring opinion in the earlier case. Lambert said Few didn’t institute a per se rule. His face says “he disagrees with you,” Beatty said.

Justices George C. James Jr. and D. Garrison Hill also took part in the arguments. Hill replaced Hearn on the court. Kittredge and James dissented from the January decision. Few concurred in the result only.

The South Carolina Attorney General’s Office represents the state. Planned Parenthood Federation of America, Center for Reproductive Rights, and Burnette Shutt & McDaniel PA represent the providers.

Planned Parenthood has received funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Law is operated by entities controlled by Michael Bloomberg.

The case is Planned Parenthood S. Atl. v. State, S.C., No. 2023-000896, oral arguments 6/27/23.