A court in the southeastern United States has struck down South Carolina’s so-called “fetal heartbeat” law, which bans abortions as early as six weeks into pregnancy.
The South Carolina Supreme Court issued its decision on Thursday, calling the ban an “unreasonable restriction” that “violates a woman’s constitutional right to privacy”.
The law was overturned in a narrow three-to-two vote, with the majority siding with the plaintiffs: two South Carolina physicians, a women’s clinic in the city of Greenville and the healthcare nonprofit Planned Parenthood.
“This is a monumental victory in the movement to protect legal abortion in the South,” the nonprofit’s South Atlantic branch said on Twitter. “We, as well as our partners, will continue our fight to block any bill that allows politicians to interfere in people’s private health care decisions.”
Meanwhile, the Republican governor of South Carolina, Henry McMaster, blasted the decision as judicial overreach, saying the ruling ran contrary to the will of the voters in the largely red state.
“Our State Supreme Court has found a right in our Constitution which was never intended by the people of South Carolina. With this opinion, the Court has clearly exceeded its authority,” he wrote on Twitter.
South Carolina’s Fetal Heartbeat and Protection from Abortion Act was originally passed in February 2021, with Republicans hailing the bill as a “tremendous victory” for those they consider “unborn” children.
“If this gets upheld by the courts, we will have saved thousands of lives in South Carolina every year,” said Shane Massey, the majority leader in the state Senate.
The act required patients seeking an abortion to undergo an ultrasound to detect what the law called a “fetal heartbeat”. If such activity was detected, the abortion could not move forward, except in cases of rape, incest or danger to the parent’s life.
But physicians and pro-abortion rights advocates have disputed terms like “fetal heartbeat”, saying the flickers captured in ultrasounds during the early weeks of pregnancy are not heartbeats but rather electrical activity in cells that will eventually become cardiac tissue.
They also point out that the electrical pulses can be detected as early as six weeks, before many people realise they are pregnant. That rationale was raised in the South Carolina Supreme Court’s decision on Thursday.
“Six weeks is, quite simply, not a reasonable period of time,” the court majority wrote in its opinion, citing the time it takes for a parent to realise they are pregnant and take action to secure an abortion. It described the ban as an “unreasonable invasion of privacy”.
But the ruling was narrow. The majority opinion implied the state could still impose restrictions on abortion access, insofar as it was protected under the state’s right to privacy.
“The State unquestionably has the authority to limit the right of privacy that protects women from state interference with her decision,” the ruling explained.
South Carolina continues to have a separate 20-week abortion ban in effect, a state law that preceded the fetal heartbeat act.
The six-week ban had initially faced a flurry of legal challenges after being signed into law in 2021 by Governor McMaster, who predicted defending the legislation would be “an uphill battle”. A judge suspended the ban on its second day of being in effect.
States like Georgia, Ohio and Iowa have also tried to enact their own “fetal heartbeat” laws, but they too face legal challenges. In November, Georgia’s state supreme court voted to reinstate its “fetal heartbeat” law while they consider a lower court ruling overturning the ban, leading some advocates to call the issue “legal ping-pong”.
Republican support for such bans led attorneys general from 21 states – including Alabama, Arizona, Kansas, Montana and Texas – to file an amicus brief in support of South Carolina’s law in March 2022.
But the landscape for abortion access in the US changed in June, as the US Supreme Court decided to overturn the landmark precedent set in 1973’s Roe v Wade, effectively ending the constitutional right to abortion access at the federal level.
The US Supreme Court’s decision – in a case called Dobbs v Jackson Women’s Health Organization – put the question of abortion rights back in state hands.
A few days after the Dobbs decision was handed down, on June 27 of last year, South Carolina’s six-week ban went back into effect.
“Once Roe v Wade was overturned by the Supreme Court,” state Attorney General Alan Wilson explained at the time, “there was no longer any basis for blocking South Carolina’s Heartbeat Law”.
The South Atlantic chapter of Planned Parenthood filed its lawsuit the following month, arguing the ban infringed upon the state constitution. But lawyers for the state of South Carolina argued that the right to privacy was intended to protect against illegal “search and seizure” and did not apply to abortion.
The South Carolina Supreme Court is considered the first court to issue a final ruling on abortion’s constitutionality under state law in the months following the Dobbs decision.
As such, its decision on Thursday has attracted national attention, including from the administration of US President Joe Biden, a Democrat.
“We are encouraged by South Carolina’s Supreme Court ruling today on the state’s extreme and dangerous abortion ban,” White House Press Secretary Karine Jean-Pierre wrote on Twitter. “Women should be able to make their own decisions about their bodies.”
But US Senator Lindsey Graham, a Republican representing South Carolina, denounced the decision as “judicial activism”. He has previously advocated for a nationwide 15-week abortion ban.
“It is hard for me to believe that the drafters of the South Carolina Constitution intended any provision to stop elected officials from passing laws that protect the unborn,” he wrote on Thursday.
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