South Carolina’s “heartbeat” abortion ban faced the state Supreme Court on Tuesday, with state attorneys arguing that the law should be allowed to take effect by reversing a lower court’s order. The law, signed by Gov. Henry McMaster last month, prohibits abortions after an ultrasound detects cardiac activity, typically around six weeks. However, a judge put the law on hold pending resolution of the case, allowing abortions up to approximately 20 weeks after fertilization.
In a previous ruling in January, the court struck down a nearly identical version of the law, citing a violation of South Carolina’s constitutional right to privacy. The opinion was written by Justice Kaye Hearn, the only female justice at the time. Since then, Hearn has been replaced due to mandatory retirement, resulting in an all-male bench.
State attorneys argued that the previous ruling had no precedent because each justice wrote their own opinion. Planned Parenthood South Atlantic, a South Carolina clinic, and two physicians filed a lawsuit challenging the ban immediately after it became law, arguing that it was essentially the same as the one struck down in January, with no intervening changes that would justify its reinstatement.
According to the state’s attorneys, Republicans in the legislature made three key changes to differentiate the updated law from the previous version, specifically addressing concerns raised by Justice John Few. The new law removed the provision claiming it provided women with an “informed choice” about abortion, revised the definition of a clinically diagnosable pregnancy, and clarified that contraceptives, including emergency contraception, were permitted.
While the court’s majority opinion in January emphasized that six weeks is insufficient time for an “informed choice,” the state argued on Tuesday that a woman can know she is pregnant within seven to 10 days after conception, allowing ample time to decide about abortion. Chief Justice Donald Beatty, who concurred with the majority in January, questioned the state’s submission of evidence supporting their claim.
State attorneys also contended that the updated law encourages women to plan ahead for unwanted pregnancies, promoting the use of contraception and pregnancy tests as viable alternatives to abortion, thus providing them with a “choice.” However, Catherine Humphreville, representing Planned Parenthood, disputed characterizing the law as “pro-choice,” arguing that the opportunity for choice with a six-week ban is short-lived and asserting that contraception does not expand choice or serve as a substitute for abortion.
Humphreville further criticized the state’s suggestion that the law expands choice, stating that relying on contraception availability in abortion bans could potentially lead to the outlawing of birth control methods like emergency contraceptives. She also argued that the emphasis on repeat pregnancy tests places an unnecessary burden on women and infringes on their right to privacy.
In conclusion, the South Carolina Supreme Court heard arguments regarding the “heartbeat” abortion ban, and a decision will be made based on the merits of the case.
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