COLUMBIA, S.C. – A potential swing vote on the newly all-male South Carolina Supreme Court grilled lawyers over whether patients have enough time to get an abortion after learning of their pregnancy as the justices weighed whether a new ban is similarly unconstitutional to one that got shot down earlier this year.
The right to an abortion in South Carolina was back before the state's highest court Tuesday as Republicans try to restore the ban that was overturned in January.
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A 3-2 majority in January tossed a similar law that banned abortion once cardiac activity is detected, or at about six weeks and before most people know they are pregnant. Republican Gov. Henry McMaster recently signed into law a similar ban that starts once cardiac activity is detected. That restriction has been placed on hold as the case involving the new ban moves through the courts. Meanwhile, abortion remains legal through 22 weeks in this conservative state.
But lawyers for the state and abortion providers presenting their arguments for the second time since the U.S. Supreme Court struck down federal protections last summer faced a new set of state supreme court justices after a change in the court’s makeup. Justice Kaye Hearn, the author of the lead opinion in January's decision and the court’s only woman, left after reaching the court’s mandatory retirement age. An all-male bench with recently sworn Justice Gary Hill heard Tuesday’s arguments.
The outcome will test the strength of the January ruling. All five justices wrote their own legal explanations for that decision in an unusual move that the state's lawyers argue left that ruling devoid of any firm precedent.
Planned Parenthood South Atlantic's lawyer argued there’s no substantive difference between two laws that both limit abortions at the same point in a pregnancy. The collective opinions of the three justices in the majority all established that a roughly six-week ban violated the state constitution’s right to privacy, said attorney Catherine Humphreville.
Chief Justice Donald Beatty quickly indicated his agreement with the abortion provider's interpretation. Beatty read a section from the January opinion of one justice who more narrowly joined the majority back to attorney Thomas Hydrick minutes into the state's opening arguments.
Justice John Few wrote that “if a substantial percentage of pregnant women cannot know of their pregnancy in time to have meaningful discussions, engage in sufficient deliberation and prayer, and then make timely arrangements to carry out an abortion, then I cannot envision a winning argument that... the denial of that choice is not an unreasonable invasion of privacy.”
The new law resembles the 2021 ban that was tossed out in January. But Republican lawmakers tweaked it in ways they expect will flip Few's vote. State lawyers argued the 2023 law responds directly to his prior criticisms that the General Assembly did not determine whether a six-week ban gives patients enough time to learn they are pregnant to justify limiting their privacy rights involving decisions around abortion.
Planned Parenthood South Atlantic’s lawyers argued in their legal brief that the Republican-led General Assembly “mistakenly” assumed the new law’s “substantive unconstitutionality could be cured by substituting one set of magic words for another.”
Hill, the court's newest member, did not ask many questions and Few did much of the questioning. Whichever way one interprets his old opinion, the justice said, he must analyze this new law. He will consider the state’s response to his January opinion that he explained “keyed” into the legislature’s failure to address whether the limits give a choice to abortion patients.
“I promise you, I’m not changing my analysis,” Few said. “But that does not mean the outcome is the same.”
Few showed great interest Tuesday in the state's new argument that the window of a sexually active person's “choice” should be expanded to include the time beforehand when they might consider how they would respond to a pregnancy and limit that possibility by using contraception. The 2023 law encourages that behavior, Few said, as well as the use of frequent pregnancy tests.
Arguments for limiting abortion that hinge upon the availability of contraception could be used to unconstitutionally outlaw birth control in the future, Humphreville replied. It is impractical considering the possibility for testing and contraceptive failures, they added.
“People are not sitting around taking a pregnancy test every day. They have jobs, they have children, they have other determinations. They are not regularly tracking their menstrual cycles,” Humphreville said. "That does not change anything.”
State lawyers argued that legislators this time took into account the patient’s opportunity to “engage in a meaningful decision-making process” and “make the necessary arrangements." They cited data from the U.S. Centers for Disease Control and Prevention that about 45% of abortions nationwide in 2020 occurred within six weeks of pregnancy and that nearly 81% occurred within nine weeks.
The figures, according to state attorney Thomas Hydrick, show that women “can know” they are pregnant within the law's limits and obtain an abortion if they want one. Beatty responded that “anything is possible” and that “not one shred of evidence” mentioned the probability that someone knows they are pregnant at the point when cardiac activity is detected.
Hydrick also suggested that patients have more than six weeks to make a decision. A ban at cardiac activity could restrict abortion when the electrical impulses are potentially detected as late as nine weeks, he said.
A less persuaded Few told the state lawyer that “you just walked yourself into a giant hole of ambiguity.”
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James Pollard is a corps member for the Associated Press/Report for America Statehouse News Initiative. Report for America is a nonprofit national service program that places journalists in local newsrooms to report on undercovered issues.