The right to an abortion in South Carolina is back before the state's highest court as Republicans try to restore a ban that was overturned earlier this year — this time in front of the only state Supreme Court in the nation made up entirely of men.
Tuesday's oral arguments will mark the second time since the U.S. Supreme Court struck down federal protections last summer that lawyers for the state and providers will present their arguments to the state Supreme Court. 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 temporarily 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.
The circumstances are different this time around 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, has since left after reaching the court’s mandatory retirement age. An all-male bench with newly sworn Justice Gary Hill will hear Tuesday’s arguments.
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The case will test the strength of the January ruling. State lawyers must overcome a higher bar after the state Supreme Court recently ordered them to argue why it should overturn the prior ruling. All five justices wrote their own legal explanations for the January decision in an unusual move that the state's lawyers argue left that ruling devoid of any firm precedent.
Planned Parenthood South Atlantic's lawyers argue that 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, the lawyers wrote in a legal brief.
The new law resembles the 2021 ban that was struck down in January. But Republican lawmakers tweaked it in ways they expect will flip the vote of one justice who more narrowly joined the majority.
The state has argued in legal briefs that the new law responds directly to Justice John Few's criticisms that the General Assembly did not consider whether or not a six-week ban gives patients enough time to learn they are pregnant to justify limiting their privacy rights involving decisions around abortion.
Lawmakers this time around took into account the patient's opportunity to “engage in a meaningful decision-making process” and “make the necessary arrangements," the lawyers said. 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.
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."
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