SC Supreme Court takes up state’s abortion ban

COLUMBIA, S.C. — South Carolina Supreme Court justices grilled lawyers over the extent of the right to privacy in a case Wednesday that could determine the scope of the state’s abortion restrictions.

The hearing marked the latest legal challenge to South Carolina’s 2021 ban on abortions after cardiac activity is detected, typically around six weeks, with exceptions for pregnancies caused by rape or incest, or those that endanger the patient’s life.

The law — previously suspended by federal courts — took effect shortly after the U.S. Supreme Court overturned Roe v. Wade. The state’s high court temporarily blocked it in August as the justices considered this case.

Julie Murray, a Planned Parenthood Federation of America staff attorney representing the challengers, argued that the state’s right to privacy, ratified in 1971, should be broadly interpreted to encompass abortion.

Justice John Kittredge said privacy is not an “amorphous” right and sought an objective legal framework for determining just how far it should extend.

Murray acknowledged that privacy is not absolute and referred to the court’s 1993 decision in Singleton v. State. In that case, the court ruled that the privacy of a man on death row would be violated if South Carolina forced medication on him solely to facilitate an execution. Therefore, Murray said the right to privacy includes bodily autonomy and therefore abortion.

When Chief Justice Donald Beatty asked if the court could simply strike down the ban without addressing that question, Murray said the court could rule in a limited way that the law posed an “unreasonable” invasion of privacy.

Justice John Few said abortion may be a “private” matter but that the state constitution allows “reasonable restrictions” to privacy rights. To determine the ban’s reasonability, Few sought data on how many women know they are pregnant at six weeks.

Justice Kaye Hearn — who at one point acknowledged she was the only woman on the bench — noted that age and socioeconomic status impact period cycles and access to tests, making it difficult to answer that question generally.

Few said it seems important if “more than a handful of women” can’t make an informed choice at six weeks, as required by the law. He expressed disappointment that the justices didn’t have more specific information.

Kevin Hall, a lawyer representing the state Legislature, argued that historical context shows the right to privacy applies only to searches and seizures. Justices questioned whether that reading might be too narrow. When asked by Few if the Legislature could therefore also restrict birth control, Hall said no.

Beatty asked if a person has the right to make their own medical decisions. Hall said that yes, that right is protected by due process. But Hall said abortion differs from medical treatments because it involves multiple interests: “the life of the unborn” and the patient.

Hearn noted that the American College of Obstetricians and Gynecologists, among many other medical associations, has said the cardiac activity typically detected around six weeks is not a heartbeat, but electrical impulses. Without “quibbling over terminology,” Hall said there is a 95% correlation between cardiac activity at that stage and live birth.

The hearing came one day after the South Carolina Senate again rejected a proposal to ban nearly all abortions in the state. A conference committee was established to work out the differences between the House and Senate bills.

Meanwhile, Beatty said the court’s decision could take some time. “We appreciate the civility,” Beatty said before adjournment.

“We didn’t want distraction from this very serious argument,” he added.

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