In a recent decision, South Carolina’s newly constituted all-male Supreme Court has upheld a ban on most abortions after six weeks of pregnancy.
The 4-1 decision contrasts with the court’s previous stance, which had struck down a similar ban passed by the Republican-led Legislature in 2021. This new ban is now in effect, and its implications are generating discussion across the state.
The Loss of a Woman’s Perspective
The ruling is a significant shift in the state’s abortion policy that follows the replacement of the only woman on the court, Justice Kaye Hearn, due to her reaching the mandatory retirement age.
The Opinion Behind the Decision
Writing on behalf of the majority, Justice John Kittredge said that the new law does encroach on “a woman’s right of privacy and bodily autonomy.”
However, Kittredge argued that the state Legislature’s judgment was based on the idea that these interests are outweighed by “the interest of the unborn child to live.”
Open for Debate
Kittredge also noted that the precise timing of when the ban should begin during a pregnancy remains an open question, suggesting the potential for further legal debates on this matter.
Ambiguous Medical Terms
Chief Justice Donald Beatty, the only court member to vote against the ban, worried that the law’s ambiguous terms like “fetal heartbeat” and “conception,” could expose medical professionals to criminal charges if their opinions differ from law enforcement.
The Decision’s Impact
The impact of the decision became clear as the Planned Parenthood South Atlantic clinic in Columbia halted most abortions while seeking clarity on the ruling’s implications.
The Dr. Weighs In
Dr. Katherine Farris, the Clinic’s chief medical officer, reported that they had to turn away several patients who were scheduled for abortions.
The Court’s Transition
Previously, Justice Hearn wrote the majority opinion that said the earlier ban was unconstitutional, based on the state constitution’s right to privacy.
Her retirement allowed the Republican-dominated Legislature to appoint Gary Hill, turning South Carolina’s Supreme Court into the only one in the nation with an all-male bench.
The New Law’s Backlash
Republican lawmakers drafted the new law to address concerns raised in the previous ruling about the restrictions infringing upon women’s privacy rights.
A New Legal Challenge
This prompted another legal challenge by abortion providers, including Planned Parenthood South Atlantic, who argued that both bans restricted abortions at the same point in pregnancy and were equally unconstitutional.
The 2023 law restricts most abortions when cardiac activity can be detected, approximately six weeks after a woman’s last menstrual period.
Only an Embryo
Beatty argued that at this stage, the entity is still an embryo, and the heart doesn’t develop until later. He emphasized that the term “cardiac activity” inaccurately equates to a heartbeat.
The court’s newly appointed Justice Hill voted in favor of the new ban, along with Justice Few, who had previously voted to overturn the 2021 law. Few wrote that the state constitution’s right to privacy does not universally protect against “reasonable” intrusions.
An Informed Choice
A major change highlighted by the majority was the removal of a reference to a pregnant woman’s right to make an “informed choice.” The 2023 law broadened the concept of choice to include the time before fertilization in hopes to promote proactive family planning.
Testing and Contraceptives
The law also provides insured contraceptives and attempts to place the responsibility on sexually active couples to actively use pregnancy tests.
Possibility of Failure
This has also received criticism as it ignores the possibility of failures with testing and contraceptives.
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