All male South Carolina Supreme Court upholds ‘fetal heartbeat’ abortion ban

South Carolina’s law banning abortion after detection of a “fetal heartbeat” is legal, and there is no constitutional right to an abortion, the all male state Supreme Court ruled Wednesday. 

The legislation, which was signed into earlier this spring by Gov. Henry McMaster (R), bans abortions after an ultrasound detects cardiac activity, which is usually at about six weeks. 

However, the Court did not address whether there was a specific period involved or attempt to define “fetal heartbeat.” 

The court ruled 4-1, with Chief Justice Donald Beatty as the lone dissenter.

The court struck down a nearly identical version of the law in January, ruling it violated South Carolina’s constitutional right to privacy. 

But that 3-2 opinion was written by Justice Kaye Hearn, the court’s only woman. Hearn was replaced after reaching mandatory retirement age, and the justices are now all men.

Writing for the majority, Justice John Kittredge said the law infringes on “a woman’s right of privacy and bodily autonomy,” but also noted that almost every law does as well. 

“The legislature has made a policy determination that …  a woman’s interest in autonomy and privacy does not outweigh the interest of the unborn child to live,” Kittredge wrote. “We cannot say as a matter of law that the 2023 Act is unreasonable and thus violates the state constitution.”

In addition, the majority noted that since the law contains exceptions for the life and health of the mother, as well as for medical emergencies, fatal fetal anomalies, rape and incest, “we are not confronted with any plausible argument or concrete situation that suggests compliance with the Act poses significant or unconstitutional threats to a mother’s life or health care, or that it will result in medical providers delaying necessary or life-saving health care.” 

The lawsuit was filed by Planned Parenthood South Atlantic, a South Carolina clinic and two physicians almost immediately after the ban became law. 

They argued the ban was essentially the same as what the court ruled against in January, and there was nothing that happened in the interim that allowed the state to try again.

The Court acknowledged the earlier decision striking down the 2021 law, but made numerous references to the fact that the 2023 law was different. The earlier decision based on an older version of the law “does not dictate the constitutionality of the amended version of the Fetal Heartbeat and Protection from Abortion Act.”

Republicans in the legislature made key changes to distinguish the updated version of the law from the previous version, in an attempt to answer key questions raised by the justices in the January decision.

The new law removed a legislative finding that the bill gave women an “informed choice” about having an abortion; it changed the definition of a clinical diagnosable pregnancy; and it changed the definition of contraceptives to clarify that contraceptives are allowed under the new law, including emergency contraception.

In a statement, McMaster celebrated the ruling.

“The Supreme Court’s ruling marks a historic moment in our state’s history and is the culmination of years of hard work and determination by so many in our state to ensure that the sanctity of life is protected,” McMaster said.

“With this victory, we protect the lives of countless unborn children and reaffirm South Carolina’s place as one of the most pro-life states in America.”

Updated at 11:39 a.m.