As this news outlet predicted it would months ago, South Carolina’s supreme court upheld the state’s newest six-week abortion ban this morning.
By a 4-1 margin, the court ruled that state lawmakers properly addressed concerns about the six-week requirement contained in a previously passed law which justices originally deemed “arbitrary” and thereby unconstitutional.
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 new law contained the same six-week language, but it omitted several words justices previously deemed problematic.
“The judiciary’s role is to exercise our judgment as to whether the legislative weighing of competing interests was within the range of possible, reasonable choices rationally related to promoting the legislature’s legitimate interests,” justice John Kittredge wrote. “Having concluded that it was, we consequently defer to the legislature’s gauging of the profound, competing interests at stake.”
(Click to view)
Chief justice Donald Beatty dissented – offering a stinging rebuke of his colleagues and state lawmakers. Specifically, Beatty hit on a theme this news outlet has hammered away at in recent years – judicial independence (or rather the lack thereof).
“I am hard-pressed to think of a greater governmental intrusion by a political body,” Beatty wrote. “This outcome is not an affirmation of the separation of powers, as the majority declares, but an abdication of this court’s duty to ascertain the constitutionality of the challenged legislation.”
In a footnote to his dissent, Beatty hinted his colleagues may have been cowed by their legislative overlords.
“The fear of legislative reprisal is palpable,” he wrote. “The lack of judicial independence renders a court powerless and places it on the edge of a slippery slope to irrelevance.”
The court’s decision came just nine months after the it struck down the previous law, which was nearly identical, by a 3-2 margin. Both laws were challenged by the South Atlantic office of national abortion provider Planned Parenthood on the grounds they violated privacy protections of the S.C. Constitution (Article I, Section 10).
Some very important words … or rather the removal of two very important words.
In the 2023 law, legislators addressed concerns raised by associate justice Few about women having the opportunity to make an “informed choice about whether to continue a pregnancy.” That term – “informed choice” – was at the heart of the previous 3-2 decision. Few – the swing vote in that ruling – insisted the language was incompatible with their imposition of an arbitrary six-week timeline.
The new law contained no mention of “informed choice,” and also specifically established the scientific basis for the six-week time frame it imposed.
In arguing before the court earlier this year, assistant deputy solicitor general Thomas Hydrick said the 2023 law “was intentionally designed to address some of the alleged defects in (the) prior law.”
“I cannot say the abortion restrictions included in the 2023 act are an unreasonable invasion of privacy,” he wrote. “First, the state’s interest in protecting the lives of unborn children is clearly articulated in the 2023 act. The elimination of the interest of ‘informed choice’ from the 2021 act leaves this interest in life – which includes the life and health of the mother – as the sole purpose of the 2023 act.”
“With this purpose stated more clearly and without the countervailing statutory interest of informed choice, the correlation between reaching the threshold of a fetal heartbeat and the likelihood of a live, healthy birth stands out more clearly as a reasonable standard by which to regulate most abortion,” Few added.
Legislative opponents of the new law claimed the court’s decision would put women’s health at risk – and vowed the issue was far from resolved.
“Because of what the legislature and the court have done, women will suffer and die who shouldn’t have to in America,” state representative Heather Bauer told me. “This is shameful and this issue is anything but settled.”
THE OPINION …
(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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