South Carolina Supreme Court Upholds Revised Abortion Heartbeat Bill After Blocking 2021 Version

Ryan Morgan
By Ryan Morgan
August 23, 2023Roe v. Wadeshare
South Carolina Supreme Court Upholds Revised Abortion Heartbeat Bill After Blocking 2021 Version
Demonstrators wait for lawmakers to arrive before the South Carolina Senate passed a ban on abortion after six weeks of pregnancy at the South Carolina Statehouse in Columbia on May 23, 2023. (Sean Rayford/Getty Images)

The South Carolina Supreme Court has decided to uphold a revised state law that bans abortions if a heartbeat can be detected, after having objected to a previous version of the legislation.

On Wednesday, the South Carolina Supreme Court ruled 4-1 (pdf) in favor of a law that was passed in the Republican-majority state legislature this year, known as the Fetal Heartbeat and Protection from Abortion Act, that bans abortion procedures in instances where the heartbeat of the developing baby can be detected. The decision comes after the state Supreme Court ruled (pdf) 3-2 this year to block a version of the Fetal Heartbeat and Protection from Abortion Act that passed in 2021, siding with Planned Parenthood and other abortion providers who challenged the prior law.

The Supreme Court’s latest decision comes amid a change in the court’s composition, after Justice Kaye Hearn stepped down from the court having reached the court’s mandatory retirement age. Justice Hearn had ruled against the 2021 bill in one of her final decisions before retiring on Dec. 31, 2022.

Justice David Garrison Hill was chosen by the South Carolina state assembly to replace Justice Hearn, and he ruled in favor of the 2023 version of the abortion heartbeat bill.

Justice John Cannon Few, who had ruled against the 2021 version of the heartbeat bill, also ruled in favor of the 2023 version. In his original decision, Justice Few argued that “there is no constitutional right to an abortion” in South Carolina’s state constitution, but expressed concerns with the way in which the 2021 law was specifically crafted.

On Wednesday, Justice Few wrote that he felt the South Carolina General Assembly had sufficiently revised its legislation between the 2021 and 2023 versions of the abortion heartbeat bill.

“Ultimately, the General Assembly did not attempt to simply re-enact the same legislation, as Planned Parenthood argues. Rather, it amended the 2021 Act in what appears to be a sincere attempt to comply with the narrowest reading of this Court’s ruling,” he wrote.

Chief Justice Donald Beatty, who ruled against the 2021 abortion heartbeat bill, provided the lone dissent in Wednesday’s decision, arguing that the 2023 law was still significantly similar to its predecessor and that it was unclear about the time period after which abortion procedures could be prohibited. Chief Justice Beatty warned that by allowing this 2023 version of the law, which he felt was similar enough to the 2021 version, the court’s majority jeopardized the legal principle of stare decisis; the concept that courts should closely follow the precedents they’ve set in past cases.

“Concluding the 2023 Act is valid while remaining silent as to its timing—and without clearly rejecting any implication that it is reinstating what is at least perceived to be, effectively, a six week ban—is concerning to me, and the fear of political retribution in this matter is palpable,” the chief justice wrote.

South Carolina Governor Welcomes New Ruling

Republican South Carolina Gov. Henry McMaster cheered Wednesday’s decision upholding the new abortion law.

“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,” he said in a Wednesday statement. “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 Republican governor has held the office since 2017 and voted in favor of both the 2021 and 2023 versions of the abortion heartbeat bill.

South Carolina is one of several Republican-controlled states that have sought to limit the circumstances under which an abortion can take place. Like South Carolina, new abortion legislation passed by other states have also faced legal challenges.

In June, a federal judge ruled that most aspects of a 12-week abortion ban law in North Carolina could proceed. Indiana’s state Supreme Court also ruled in favor of the state’s new abortion restrictions in June.

In July, an Iowa judge issued a temporary injunction blocking the state’s own abortion heartbeat legislation from going into effect, as it faces legal challenges.

Earlier this month, a Texas judge also issued a temporary injunction on the state’s abortion heartbeat legislation.

‘Not the End of Our Fight’: Planned Parenthood

Planned Parenthood, which opposed both versions of the South Carolina abortion legislation, expressed dismay at the law against certain abortions and the state Supreme Court’s decision to let it continue.

“As a result of this decision, health care providers in the state will be forced to turn away patients who need an abortion after about six weeks of pregnancy — before many people know they are pregnant. South Carolinians who need care past the earliest stages of pregnancy will have to travel out of state for care, seek abortion outside the health care system, or continue pregnancies against their will,” the organization said in an emailed press statement. “South Carolina has been a critical access point for abortion in the South, as it is surrounded by states where abortion is banned. Today’s ruling means people across the region will need to travel much further for abortion care.”

Planned Parenthood also raised concerns about what it considered limited exceptions to the legislation.

“S.B. 474 contains limited exceptions for the life and physical health of the pregnant person and for cases of a fetal diagnosis ‘incompatible’ with life,” the organization stated. “Survivors of rape and incest can only access care until 12 weeks of pregnancy and only if their physician reports the assault—and the survivor’s name—to law enforcement, regardless of the survivor’s wishes.”

Planned Parenthood’s South Atlantic component vowed to continue to provide abortions within the confines of the South Carolina law, while continuing to challenge the legislation. Alexis McGill Johnson, the president and CEO of Planned Parenthood Federation of America, also vowed to keep fighting the South Carolina law.

“Despite the court’s ruling, Planned Parenthood and its partners will never turn our backs on South Carolinians and will continue doing whatever we can to get patients access to the services they need,” Ms. Johnson said on Wednesday. “This is not the end of our fight.”

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