The South Carolina Supreme Court has overturned South Carolina’s ban on abortion at six weeks of pregnancy. This shocking decision stunned the GOP leaders in the Legislature just days before the 2023 Statehouse session.

Jan. 5: Justices split 3-2 and ruled that privacy rights in the state constitution extend to women’s right for an abortion.

The Legislature can limit “that utmost private and personal” decision to protect “unborn human life,” Justice Kaye Hearn stated in the lead opinion that women should be allowed enough time to find out if they are pregnant and make a decision about whether or not to terminate it.

“Six weeks is not a reasonable time for these two events to occur and therefore, the act violates our Constitution’s prohibition against unreasonable invades of privacy,” states the only female judge in the high court’s conclusion.

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Unusually, each justice wrote an opinion. John Few and Chief Justice Don Beatty agreed with Hearn. John Kittredge and George James, the Chief Justice, also wrote opinions that disagreed with the majority. Justices criticised and cited each other throughout the ruling’s total of 147 pages.

According to a 2016 law, abortion is still legal in South Carolina up to 5 1/2 months after a woman has been born. Nikki Haley. It strikes the 2021 law signed Gov. Henry McMaster, who banned abortions after an ultrasound detected cardiac activity. The law is often referred to as a six week ban because it can happen as early as the sixth weeks.

The ban was temporarily in effect until June 27, just days after the U.S. Supreme Court tossed out Roe v. Wade’s 1973 ruling that guaranteed abortions throughout the second trimester nationwide. That struck that the legality and practice of abortions was relegated to the states for them to decide. The six-week-old law was suspended by the S.C. Supreme Court in August after state abortion providers filed a suit claiming it violated privacy provisions of the state constitution.

The issue was a 1971 clause that was part of a larger update to the constitution approved by voters.

Critics quickly attacked the ruling.

McMaster stated that “our state Supreme Court found a right within our constitution which was not intended by the peoples of South Carolina.” McMaster stated, “This opinion clearly shows that the court has exceeded its authority.” I look forward working with the General Assembly in rectifying this error.”

A legislative grenade

This decision comes eleven weeks after state’s highest court heard arguments from lawyers representing the state as well as abortion providers. It also comes five days before Columbia returns to the Legislature on Jan. 10.

It confirms that the GOP-dominated Legislature may not pay much attention to abortion this session for the first time since years.

Republican leaders have been publicly stating for months that they expect the ruling to go their way. This was even during debates on the floor of an extended session, which was created specifically to discuss a ban on conception. The legislation was ultimately canceled in November by the Senate, which lacked the votes to extend the deadline for six more weeks. Meanwhile, the House GOP refused to accept any other form of ban.

The stalemate was likely to continue at least through 2024 when senators will be up for re-election.

The question now isn’t whether or not abortion legislation will be discussed this year, but how quickly.

Davey Hiott (R-Pickens), House Majority Leader, stated that “this caught all of us off guard.” “Now, we have to look again at where we are now and what we plan to do. This must be addressed. However, we have to decide how we will do it.

Sandy Senn (R-Charleston) said that the Legislature should stop wasting its time on the issue of division and instead ask voters their opinions — something she unsuccessfully advocated during the extended session. She predicted the outcome and warned that the only way to fix the problem was to change the constitution.

Senn was one of five senator women who opposed an outright ban.

To allow such a vote, a supermajority in both chambers of Parliament would be required to approve a referendum on the ballot. Senn believes this is still unlikely. It’s because abortion opponents fear that the results will mirror what happened last year in Kansas, where a majority of Kansas voters rejected an amendment banning abortions.

History lessons

Senn’s fellow Republicans claimed she didn’t know the law during the Senate debate. They argued that it was a matter relating to context, just like the lawyers in court.

They claimed that the privacy clause only covered searches and seizures and that lawmakers were not trying to protect abortions but to prevent government surveillance. Attorneys for the state used the 1969 notes of the study committee to support their argument.

Hearn acknowledged that “a woman’s right to bodily autonomy” wasn’t on the minds of a 1966 group without any female members. She called it irrelevant and said that what they believed six decades ago “neither guides nor ends our inquiry.”

She also added her own history lesson (which Kittredge called unfair) to show how much has changed. When the privacy amendment was being discussed, South Carolina law prohibited women from serving as jurors. The Legislature had not yet ratified the 19th Amendment to U.S. Constitution, which gave women the right of vote.

She wrote that “We cannot delegate our responsibility of declaring whether a legislative action is constitutional by blinding us to all that has happened since the amendment was approved.”

Hearn said that other precedent-setting decisions of the high court that cited privacy guarantee include a 1993 decision that stated that no prison official could force a death row inmate into taking medication to make him competent to execute.

Kittredge cited U.S. Supreme Court Justice Brett Kavanaugh when he disagreed with the majority. He used his line that abortion presents an “irreconcilable conflicts” that must still be resolved.

Kittredge asked, in an era after Roe v. Wade: “Do we look to judges for resolution of the ‘irreconcilable conflicts’ or do citizens of each state have the right to make that decision through democratic processes through their elected representatives?” This policy dispute has been resolved by the courts majority. I don’t hesitate to answer that question in another way: The constitution doesn’t mandate any outcome. It is up to the citizens of South Carolina, through their elected representatives, to decide.

This decision was very emotional for abortion defenders, who have spent decades fighting Republican efforts to end abortions. But especially the six months since.