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The South Carolina supreme court heard arguments on the constitutionality of the state’s newest six-week abortion ban this morning (June 27, 2023) – debating whether to lift a temporary injunction of the law issued by S.C. circuit court judge Clifton Newman earlier this month.
State lawmakers passed – and governor Henry McMaster signed into law – Act No. 70 of 2023 on May 25 of this year. The new law holds that “no person shall perform or induce an abortion on a pregnant woman with the specific intent of causing or abetting an abortion if the unborn child’s fetal heartbeat has been detected.”
Exceptions exist for medical emergencies, rape or incest.
The law is very similar to a 2021 piece of legislation struck down by the court in January after the U.S. Supreme court overturned Roe v. Wade – putting the states back in charge of regulating abortion.
The state supreme court’s 3-2 decision focused specifically on the six-week requirement of the 2021 law – which was challenged by the South Atlantic office of national abortion provider Planned Parenthood on the grounds it violated privacy protections of the S.C. Constitution (Article I, Section 10).
A narrow majority of justices concurred with that assessment …
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“The decision to terminate a pregnancy rests upon the utmost personal and private considerations imaginable, and implicates a woman’s right to privacy,” the majority opinion written by associate justice Kaye Hearn noted at the time. “While this right is not absolute, and must be balanced against the State’s interest in protecting unborn life, this Act, which severely limits — and in many instances completely forecloses — abortion, is an unreasonable restriction upon a woman’s right to privacy and is therefore unconstitutional.”
Hearn reached the state’s mandatory retirement age for judges and is no longer on the bench. Legislators picked justice Garrison Hill to take her place – and he took his seat back in February. South Carolina now has the only state supreme court in America without a woman serving on the bench.
The composition of the court isn’t the only thing that’s changed. The S.C. House has, by some accounts, moved to the right since the 2021 law was passed – something Hearn acknowledged in an SCETV interview released earlier this month.
“In the last legislative election many more Republicans were elected, and some of them were extremely conservative on many issues, and that changed the face of the General Assembly a good little bit,” she said. “I’m sure that our Planned Parenthood decision didn’t help.”
Despite these change in lawmakers, the 2023 abortion bill’s only material alterations address concerns expressed by associate justice John Few in his concurring opinion from earlier this year. Elected by legislators in 2016, Few is by all accounts a conservative jurist – and his ruling in favor of Planned Parenthood shocked many observers of the court.
Although a surprising defeat for conservatives and an unplanned victory for progressives, Few’s opinion was far less a repudiation of the state’s ability to ban abortion than it was a repudiation of flaws in the 2021 law.
(Click to View)
Few’s main gripe with the 2021 ban centered around the S.C. General Assembly’s failure to verify that women had ample time to make an “informed choice” – considering language contained in the statute afforded them the opportunity to do so. The 2021 law reads that “in order to make an informed choice about whether to continue a pregnancy, a pregnant woman has a legitimate interest in knowing the likelihood of the human fetus surviving to full-term birth based upon the presence of a fetal heartbeat.”
In the course of oral arguments over the 2021 law, Few found no evidence lawmakers had properly addressed this issue while crafting the law.
“The General Assembly’s failure even to consider this necessary factual question was arbitrary and renders the Fetal Heartbeat Act unconstitutional,” he wrote.
The new version of the law sidesteps this issue entirely by removing any reference to “informed choice.” Additionally, lawmakers have since publicly debated the issues Few’s opinion raised, so that attorneys representing the state won’t again be put in a position to have to defend what looks like a legislature passing laws without considering their consequences.
Few also objected to the “arbitrary” nature of the six-week deadline in the initial law. Lawmakers responded by adding language explaining addressing their reasoning to the new version of the law.
Few’s aforementioned gripes weren’t what killed the law though, the privacy concerns voiced loudest by liberal justices Hearn and chief justice Donald Beatty dominated the 2021 majority opinion. Few, though clearly concerned about privacy in his 2021 ruling, made it clear that his determination on the issue wasn’t absolute.
(Click to View)
“The existence of these privacy interests does not give rise to a ‘right’ to abortion,” Few wrote. “Nor do these interests alone render the Fetal Heartbeat Act unconstitutional … the extent to which abortion should be regulated is a legislative or political — question.”
Few cited the state’s 1974 abortion ban statute, which is still law in the Palmetto State, as a “noncontroversial, indisputably reasonable “invasion”” of privacy interests.
Assistant deputy solicitor general Thomas Hydrick said the 2023 law “was intentionally designed to address some of the alleged defects in (the) prior law” when arguing against the issuance of an injunctive order earlier this month.
Hydrick, who also argued the case before the supreme court, characterized the central question of the hearing as the applicability of the 2021 ruling to the 2023 law. Hydrick reasoned that the new law is: a) materially different than the former statute, and b) that the court isn’t bound by precedent even if one disagrees that the law has been materially changed.
This first dispute centers around the legal concept of “stare decisis,” which translated from Latin means “let the decision stand.” Stare decisis is a longstanding concept in common-law based legal systems that directs judges to defer to previous decisions when a similar situation comes before the court again.
This principle is far from absolute, though, and associate justice John Kittredge pointed to a previous South Carolina supreme court ruling which held that one decision is not enough to create binding precedent.
“We’re not locked in,” Kittredge said.
Kittredge emphasized the importance of courts retaining the ability to reexamine prior decisions.
(Click to View)
“If we went back in history and we looked at Dredd Scott, Plessy v. Ferguson, Korematsu – gosh, don’t we all wish those had been overruled before the sun set those days?” he said.
Kittredge acknowedged if the bill was essentially unchanged, Planned Parenthood’s stare decisis challenge would hold greater weight.
Catherine Peyton Humphreville, a New York City attorney who represented the complainants in court, argued the new bill has the same sponsors as the original bill – and that those sponsors have publicly stated they were “re-establishing a ban on abortions once a fetal heartbeat is detected.”
Humphreville further argued the court faced a separation of powers issue. While attorneys for the state cast this issue as one of the legislature’s rights to make laws – the complainants see it as an opportunity for the judiciary to use its power to police the constitutionality of those laws.
How will the justices use their power? If one thing was made clear today, it is that Beatty – who sparred with Hydrick throughout the proceedings – has no intention of changing his mind. It seems unlikely associate justices Kittredge or James will change their minds, either, given the lack of material changes to the law (and comments in court indicating their willingness to set stare decisis aside).
Hill, a newcomer to the bench, interjected little during today’s proceedings. While it would be irresponsible to guess how he will rule, it seems unlikely lawmakers would have elevated him to the bench had he intended to go against them on such a high-profile issue.
And that brings us back to justice Few. If legislators indeed succeeded in “fixing” their bill – and he finds the objections he raised satisfactorily resolved, he could very well rule in favor of the amended abortion ban.
Stay tuned for coverage of the court’s ruling as soon as it is handed down …
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ABOUT THE AUTHOR …
(Via: Travis Bell)
Dylan Nolan is the director of special projects at FITSNews. He graduated from the Darla Moore school of business in 2021 with an accounting degree. Got a tip or story idea for Dylan? Email him here. You can also engage him socially @DNolan2000.
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