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SC high court refuses to take up latest abortion challenge, lets ban stand at 6 weeks


SC high court refuses to take up latest abortion challenge, lets ban stand at 6 weeks

Nov 17, 2023 | 12:27 pm ET
By Seanna Adcox
SC high court refuses to take up latest abortion challenge, lets ban stand at 6 weeks
*The South Carolina Supreme Court in Columbia. (Mary Ann Chastain / Special to the SC Daily Gazette)

COLUMBIA — South Carolina’s high court refuses to directly take up abortion providers’ latest attempt to overturn the state’s abortion ban, keeping it illegal roughly six weeks into a pregnancy.

Justices unanimously denied the request from Planned Parenthood and the Greenville Women’s Clinic to directly consider their latest challenge, which centered on what point in a pregnancy the so-called “fetal heartbeat” ban took effect. They also refused to block the law while the challenge moves through the lower courts, should the providers proceed.

The four-sentence order, signed Tuesday, gave no explanation.

It’s unclear whether the providers will re-file the challenge in Richland County Circuit Court. Planned Parenthood’s regional CEO said next steps are being considered.

“We are deeply disappointed that our state’s highest court refused to clarify ambiguous language in the law that forces doctors to turn away patients seeking essential reproductive health care or face criminal penalties,” Jenny Black of Planned Parenthood South Atlantic said Friday.

Gov. Henry McMaster said the state is prepared to keep fighting.

“It could not be more clear that the Fetal Heartbeat and Protection from Abortion Act protects life from the first sign of cardiac activity at approximately six weeks, which even Planned Parenthood understood until recently,” said his spokesman, Brandon Charochak. “If Planned Parenthood keeps claiming otherwise, the governor stands ready to continue defending the law and ensuring that the right to life remains protected in South Carolina.”

It marks the first time since the U.S. Supreme Court overturned Roe v. Wade in June 2022 that the state’s high court declined to directly take up a challenge to South Carolina’s law.

In a 4-1 decision Aug. 23, the state Supreme Court upheld the latest “fetal heartbeat” ban pushed through the Republican-dominated Legislature, ruling it does not violate the state constitution’s ban against unreasonable invasion of privacy. That decision from the newly all-male court came less than eight months after justices tossed out a similar law in a 3-2 split.

SC high court refuses to take up latest abortion challenge, lets ban stand at 6 weeks
SC Supreme Court Justice John Kittredge is sworn in to testify Monday, Nov. 6, 2023, before his screening by the Judicial Merit Selection Commission. (Mary Ann Chastain / Special to the SC Daily Gazette)

But in a footnote of his opinion, Justice John Kittredge seemed to open the door for a challenge on the ban’s timing.

“We leave for another day (in an as-applied constitutional challenge) the meaning of ‘fetal heartbeat’ and whether the statutory definition … refers to one period of time during a pregnancy or two separate periods of time,” wrote Kittredge, who is set to become chief justice next year.

The next day, abortion providers asked justices to reconsider their ruling, seeking clarity on whether the ban really applied at six weeks — when what’s heard are electrical impulses in a growing embryo — or later, when the sound truly comes from a fetus’ developed heart.

The court refused to reconsider its days-old ruling. But Chief Justice Don Beatty, the only dissenter, seemed to outright encourage a new lawsuit.

“Nothing prevents respondents from expeditiously filing a new complaint” he wrote.

But Beatty, who retires next year, joined his colleagues in Tuesday’s refusal.

The state high court’s denial means the real fight returns to the Legislature, as the U.S. Supreme Court did last year in Dobbs v. Jackson.

“That’s really who holds the power. That’s who was given the power by the Dobbs decision,” said Planned Parenthood spokeswoman Molly Rivera, noting some South Carolina Republicans still want to ban abortions outright.

Abortion will be a big issue in 2024 for state elections as well as the presidential contest.

“The state Legislature has the power to restrict or restore abortion rights, and we determine our representatives at the ballot box,” Rivera said.

Women’s access to abortions are extremely limited across the South.

In South Carolina, Republicans in the House and Senate had been in a stalemate for months over how far to go. They pushed the six-week ban to McMaster’s desk in a special session in May after GOP leaders in both chambers agreed it was better than leaving in place a 22-week ban that made South Carolina a “destination state” for abortions.

There were nearly 7,300 abortions in South Carolina last year, representing a 33% increase from 2020, according to data recently released by the state’s public health agency.

Since the August ruling, the limited options for women in South Carolina include traveling to North Carolina, where abortion is legal through 12 weeks but requires two separate visits, and Florida, where’s it’s banned at 15 weeks. The six-week ban signed by its governor, presidential candidate Ron DeSantis, remains suspended.

“Planned Parenthood South Atlantic remains committed to providing abortion care to as many people as possible despite the unjust and inhumane confines of this abortion law,” Black said. “Anyone in need of abortion care should contact us right away for help navigating this harsh new reality.”