This was the second time in less than a year that an abortion ban was argued before the state Supreme Court.
The court ruled in January that an earlier abortion law violated the right to privacy guaranteed by the state constitution. But that 3-2 opinion was written by Justice Kaye Hearn, the court’s only woman. Hearn has since been replaced after reaching mandatory retirement age, and the justices are now all men.
The state legislature passed a new bill in May, mostly along party lines. The senate’s five women senators, including three Republicans, all joined in opposing it.
Both the earlier law and the law that was signed in May banned abortion after detection of a fetal “heartbeat,” which is usually around six weeks.
The lawsuit was filed by Planned Parenthood South Atlantic, a South Carolina clinic and two physicians almost immediately after the ban became law. They argued the ban was the same as what the court ruled against in January, and there was nothing that happened in the interim that allowed the state to try again.
In the January decision, all five justices wrote their own opinions, which the state’s lawyers said meant the ruling had no precedent and could be easily set aside.
According to attorneys for the state, legislators also made key changes to distinguish the updated version of the law from the previous version based specifically on questions raised by Justice John Few— a potential swing vote.
Critically, the new law removed a legislative finding that the bill gave women an “informed choice” about having an abortion, and it changed the definition of contraceptives to clarify that contraceptives are allowed under the new law, including emergency contraception.
Few seemed open to the argument from the state that the new version gives women more choices, because it encourages women to think in advance about pregnancy and choose birth control or multiple, early pregnancy tests.
