The Uncertain Future of Abortion Laws in South Carolina

Few topics lead to more heated and emotional responses than the question of abortion. In the United States, where there is currently no nationwide right to an abortion, the issue is particularly polarizing. South Carolina is particularly divided, and a case before their state supreme court sheds light on just how contentious reproductive rights are in the country.

On one side are vocal pro-life groups like Students for Life of America (SFLA). Kristan Hawkins, SFLA's president, sees abortion as one of our time's most significant human rights atrocities, referring to it as the killing of "preborn babies." This is a sentiment shared by many, whether due to religious beliefs or other personal ideologies. On the other side of the divide is the idea of pro-choice advocates — a perspective reflected in the U.S. Supreme Court's ruling in Roe v Wade.

From Roe to Dobbs

Now a household name, Roe v. Wade was the 1973 landmark case which held that the U.S. Constitution protected a woman's right to end her pregnancy (within certain parameters). The vote was 7-2. The Court based that decision partly on the 14th Amendment's implicit "right to privacy," which protects a woman's right to access abortion. The ruling declared that states could not ban abortions before the point at which a fetus can survive outside the womb — known as "fetal viability."

This was later upheld by SCOTUS in 1992 in the case of Planned Parenthood v. Casey, where the justices asserted: "Men and women of good conscience can disagree, and we suppose some always shall disagree, about the profound moral and spiritual implications of terminating a pregnancy, even in its earliest stage. Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code."

But as you may know, Roe was overturned last year. In a case that made sweeping national headlines, SCOTUS's June 2022 decision in Dobbs v. Jackson Women's Health Organization ended the constitutional right to abortion by overturning its previous ruling in Roe. In a 5-4 decision, SCOTUS upheld a Mississippi law banning most abortions after 15 weeks of pregnancy and found that the U.S. Constitution does not protect a right to abortion. The court declared that "the authority to regulate abortion must be returned to the people and their elected representatives."

This allowed states to ban abortion, leaving open the future legality of abortion in U.S. states. Half of the country was expected to introduce new restrictions or bans once states got this chance. Thirteen states have since passed trigger laws to outlaw abortion automatically.

South Carolina: One Step Forward, Two Steps Back

In January 2023, the South Carolina Supreme Court had ruled in a 3-2 decision that a law called the Fetal Heartbeat and Protection from Abortion Act which prohibited abortions after six weeks of pregnancy violated the right to privacy under the state constitution. The outcome reinstated South Carolina's previous abortion law, which allowed abortions as late as 20 weeks into pregnancy. As a result, abortions were (and still are) allowed in South Carolina through about the first 20 weeks of pregnancy. This is one of the most permissive abortion laws in the region, and the SC Supreme Court ruling seemed like major ground gained by pro-choicers.

But then, the state legislature passed another controversial bill in May 2023, which was a step in the other direction. This law banned most abortions after fetal cardiac activity begins, which usually happens around six weeks into pregnancy. The law made certain exceptions in extenuating circumstances, such as medical emergencies, and allowed for abortions as late as 12 weeks into pregnancy in cases of rape or incest. The state senate's five female members (three Republicans, a Democrat, and an independent) all opposed the bill. One of them, Republican Sen. Sandy Senn, said, "What we are doing today is not going to do away with illegal abortions — it is going to cause illegal abortions."

South Carolina's two abortion providers, Planned Parenthood and the Greenville Women's Clinic, soon sued the state. They won a court order temporarily blocking the law until the SC Supreme Court could hear the challenge.

SC Supreme Court Seems Uncertain

When that day came, on June 27, the Court appeared to be divided over whether to overturn this new law — one that was pretty similar to the six-week ban it had struck down in January. An all-male bench considered the arguments. (The only previous female justice on the SC Supreme Court, Justice Kaye Hearn, had recently retired. She had authored the majority opinion in the January decision.)

A lawyer for Planned Parenthood pointed out that most people don't even realize that they're pregnant as early as six weeks, saying that people "are not sitting around taking pregnancy tests every single day." This echoed the concurrence by Justice John Cannon Few in the January decision, in which he said that the constitutional right to privacy includes the right to meaningful choice. He argued that whether a person has a chance to make a meaningful choice depends on whether they even know they're pregnant in time to engage in a meaningful decision-making process and make any necessary arrangements for an abortion.

Lawyers for the state asserted that, importantly, the SC Supreme Court's previous concerns regarding the ban had been addressed, pointing out that the new law allowed for contraceptives, including emergency contraceptives (the "morning-after pill").

Lawyers for the state also pointed out that the state legislature had indeed considered the burden that the law would have on women's choices and had concluded that the ability to choose birth control or to test early for pregnancy sufficed to satisfy the "right to choose." Responding to the court's January opinion, which reflected that the majority considered six weeks not enough time for an "informed choice," the state argued that a woman has the ability to know she is pregnant within seven to ten days after conception, leaving a period of weeks for her to decide about having an abortion.

The Future of Abortion

It's unclear when the SC Supreme Court is going to hand down its decision. It could take days or weeks to deliver its ruling. For now, it's still legal to get an abortion in South Carolina until about 20 weeks of pregnancy.

Of course, there are more than just two polar opposite views on abortion. The issue raises ethical questions such as when life begins and to what extent a woman should have bodily autonomy. Many question the legitimacy of men having any say in the matter. Some argue that it is easy for the privileged to impose their sanctimonious morality on others. Others cite examples of many beloved and productive members of society who would not have been born had their mothers followed through with an abortion.

What is indisputable is that legal uncertainty and inconsistency serve no one. The recent SCOTUS decision in Dobbs appears to have opened Pandora's box, as evidenced by the recent back-and-forth in South Carolina.

Related Resources

• Abortion Rights FAQs (FindLaw's Learn About the Law)
• Looking at Future Supreme Court Abortion Fights (FindLaw's Federal Courts Blog)
• Abortion Rights FAQs (FindLaw's Learn About the Law)