The South Carolina supreme court will hear arguments on the constitutionality of the state’s new abortion law three weeks from now, according to an order issued by the court on Tuesday.
The five justices of the court also unanimously agreed to reject an appeal from the state seeking to lift a temporary injunction against the enforcement of the law issued last month by S.C. circuit court judge Clifton Newman. In other words, the court will not allow the state to enforce its new abortion ban prior to hearing arguments on its constitutionality on June 27, 2023 at 9:30 a.m. EDT.
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 piece of legislation struck down by the court in January. That 3-2 decision specifically focused on the six week requirement of the law, which the court temporarily blocked in August of 2022 after it 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).
“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. “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Hearn is no longer on the court, however, having been replaced by justice Garrison Hill.
Also, the law justices will be addressing is not the same. Assistant deputy solicitor general Thomas Hydrick told judge Newman last month the new law “was intentionally designed to address some of the alleged defects in (the) prior law.”
Planned Parenthood attorneys disagreed, saying “it’s the exact same time limit.”
So … what’s different about the new law? As I noted during a recent edition of our ‘Week in Review’ program, lawmakers made several changes to the 2021 measure this year. First, they removed language related to a woman making an “informed choice” regarding her pregnancy – language which justice John Few deemed incompatible with their imposition of an arbitrary six-week timeline.
Lawmakers also inserted specific medical definitions related to this six-week timeline – thereby addressing Few’s concerns about the time limit being arbitrary.
Will those changes be enough to sway Few?
(Click to view)
“I hope they uphold the constitutionality of the fetal heartbeat bill,” state senator Tom Davis told me, saying the new law represented a “balancing of the rights of the unborn child with the right of a woman to sovereignty over her own body.”
“These are two competing rights,” Davis said, although he acknowledged “not all my colleagues accept that.”
According to Davis, the margin of the court’s upcoming decision is every bit as important as the decision itself – which is widely expected to be favorable to the new law.
“I think it’s important we get the vote of justice Few,” he said. “And I think his vote is obtainable.”
According to Davis, absent that critics of the law would “very cynically but very accurately” be able to point to a 3-2 ruling as attributable to Hearn’s retirement – not any substantive changes to the law.
“If the law is only upheld because the lone female justice is no longer on the court, I think that would send a horrible message to the people of South Carolina – especially to the women of South Carolina,” Davis told me.
State senator Josh Kimbrell – who worked with Davis on the legislation – agreed with Davis that Few’s vote was in play and that the new law’s provisions ”ought to address” his concerns.
“Up until senator Davis’s remarks on the floor, there had been no meaningful legislative effort to address justice Few’s findings in his controlling opinion on the heartbeat legislation earlier this year,” Kimbrell said. “The legislature was risking a repeat of the mistakes made in the original bill that was found unconstitutional. We now have a very high probability of having the revised legislation upheld.”
Abortion supporters said they would continue to oppose the law in the court of public opinion but acknowledged the decision as to its legality was now up to the five justices.
“It’s kind of out of our hands at this point,” state representative Heather Bauer said.
The court’s decision to hear the case within three weeks represents an expedited schedule for the submission of motions and responses ahead of this month’s oral arguments.
“We’re pleased the court granted our motion with such urgency,” attorney general Alan Wilson said in a statement responding to the order. “We look forward to making our arguments in court and defending the rule of law and right to life.”
THE ORDER …
(Via: S.C. Supreme Court)
ABOUT THE AUTHOR …
Will Folks is the founding editor of the news outlet you are currently reading. Prior to founding FITSNews, he served as press secretary to the governor of South Carolina. He lives in the Midlands region of the state with his wife and seven children.
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