The South Carolina Supreme Court on Wednesday upheld the state’s new near-total ban on abortion by a 4-1 vote, reversing a decision it had made in January that struck down a similar ban and declared that the State Constitution’s protections for privacy included a right to abortion.
The court’s decision was not unexpected, because the makeup of the bench had changed, and Republicans in the State Legislature had passed a new abortion law in the hopes that it would find a friendlier audience with the new court. The decision in January was written by the court’s only female justice; she retired and South Carolina now has the nation’s only all-male high court.
The decision repeated what the justices said in January about a right to privacy in the State Constitution, but said the Legislature had addressed the concerns in the first law and “balanced” the interests of pregnant women with those of the fetus.
“To be sure, the 2023 Act infringes on a woman’s right of privacy and bodily autonomy,” Justice John Kittredge wrote for the majority.
But, he added, “We think it is important to reiterate: we are constrained by the express language in the South Carolina Constitution that prohibits only ‘unreasonable invasions of privacy.’
“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.”
The new law bans abortion after embryonic cardiac activity can be detected, which is generally around six weeks of pregnancy. Until now, South Carolina had allowed abortion until 22 weeks, which had increasingly made the state a haven for women seeking abortions as other Southern states banned the procedure.
The leaders of the Republican majority in the Senate celebrated the decision, saying in a statement that South Carolina was “no longer an abortion destination but a refuge for the unborn.”
They suggested they would push for a total ban on abortion, which is the goal of anti-abortion groups.
Jenny Black, the chief executive of Planned Parenthood South Atlantic, said the decision would force women to carry pregnancies against their will, and puts the “dangerous politicization of South Carolina’s highest court on full display.”
“This abortion ban is nearly identical to the ban struck down by this court just months ago — the only thing that has changed is the makeup of the court,” she said in a statement.
South Carolina, one of the nation’s most reliably red states, has become an unlikely battleground over abortion rights in the year since the United States Supreme Court overturned Roe v. Wade, which for 50 years protected a right to abortion under the federal constitution.
The state’s Republican-controlled Legislature had passed a law in 2021 banning abortion when cardiac activity can be detected, typically around six weeks of pregnancy, and that law took effect when Roe was overturned. Abortion rights advocates and medical providers sued, as they did against bans in other states, arguing that a right to abortion was protected in the state’s constitution, which clearly states a right to privacy.
The court surprised many reproductive rights supporters in January when it agreed with them. But the court’s 3-2 decision also said that right “was not absolute, and must be balanced against the state’s interest in protecting unborn life.”
Anti-abortion lawmakers had been trying to pass an even stricter ban, one starting at conception, and quickly set about trying to craft a law that would satisfy the justices’ concerns in the January decision.
They hoped to take advantage of a key change on the bench: the January decision had been written by Kaye Hearn, the court’s only female justice, who has since retired. The legislature replaced Justice Hearn with a man, who joined the majority Wednesday.
Still, Republican leadership had run into unexpected opposition from female lawmakers. Nicknaming themselves “the Sister Senators,” the only five women in the State Senate — a group that included three Republicans — blocked a near-total ban on abortion by filibustering until the legislative session ran out.
Gov. Henry McMaster, also a Republican, then called a rare special session to get the legislature to vote on a bill for a six-week ban. While the Sister Senators held out on their opposition, the men who had joined them in blocking a total ban supported the six-week law.
As long as the Legislature could not pass a new law, abortion remained legal in South Carolina until 22 weeks of pregnancy. Many lawmakers worried about statistics showing that the number of abortions in South Carolina had increased largely because so many women were coming from other states that had passed bans.
The oral arguments in the case in June revolved around whether a six-week ban affords women enough time to have what one justice in his January concurrence called “meaningful choice” in deciding whether to end a pregnancy.
A lawyer for the plaintiffs argued the law was “materially indistinguishable” from the one the court struck down in January, and that six weeks is too early for many women to know they are pregnant and make arrangements for an abortion.
Doctors date pregnancy to the first day of a woman’s last monthly period, so six weeks is roughly two weeks after she has missed a regular period. The state requires her to have multiple doctor visits and scans before she can get an abortion.
Lawyers for the state argued that the Legislature had “in very good faith” addressed the objections in the court’s January decision, adding three provisions including one that explicitly states that emergency contraception — known as the morning after pill, which prevents rather than terminates pregnancy — would remain legal.
Women could “adjust their behavior accordingly,” they argued, using pills instead of resorting to abortion.
The lawyers noted that according to the Centers for Disease Control and Prevention, 45 percent of abortions nationwide in 2020 occurred in the first six weeks, arguing that this indicated many women did in fact know they were pregnant at six weeks. (Most abortions — 93 percent — take place in the first trimester.)
Grayson Lambert, a lawyer for the state, argued that women could know they were pregnant seven to 10 days after conception, or at three to four weeks of pregnancy — before she would be expecting her regular period.
Chief Justice Donald W. Beatty, who sided with the majority to overturn the earlier ban, was dubious: “Could know?” he asked. “Anything is possible, what about probable?” He was the sole dissenter in the court’s decision on Wednesday.
In his dissenting opinion, Chief Justice Beatty wrote: “The result will essentially force an untold number of affected women to give birth without their consent. I am hard-pressed to think of a greater governmental intrusion by a political body.”