Circuit Judge Clifton Newman hears arguments on whether he should halt enforcement of South Carolina’s new law banning abortion when cardiac activity is detected during a hearing, Friday, May 26, 2023, in Columbia, South Carolina.
A judge put South Carolina’s new law banning most abortions around six weeks of pregnancy on hold Friday until the state Supreme Court can review the measure, giving providers a temporary reprieve in a region that has enacted strict limits on the procedure.
Judge Clifton Newman's ruling that put the state’s abortion law back at roughly 20 weeks came about 24 hours after Gov. Henry McMaster signed the bill into law without any notice, which had left dozens of people seeking abortions in limbo and created the potential for a legal abortion becoming illegal as a doctor performed it.
"It’s extraordinarily difficult not only for the women themselves, but for their doctors — not just the doctors at Planned Parenthood — but hospitals all across the state who need to understand what to do in an emergency,” said Vicki Ringer, a spokesperson for Planned Parenthood in South Carolina.
The developments in South Carolina are a microcosm of what has played out across the country since the U.S. Supreme Court overturned Roe v. Wade a year ago, allowing states to decide their abortion laws and leaving patients scrambling to find care wherever they can in situations where weeks or even days can make a huge difference.
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The South Carolina measure joins stiff limitations pending in North Carolina and Florida, states that had been holdouts in the South providing wider access to the procedure, threatening to further delay abortions as appointments pile up in the region.
The state has seen the number of abortions climb sharply as other Southern states passed near-total bans. Before the overturn of Roe, less than 1 in 10 abortions in South Carolina were performed on people who lived out of state. Now, that figure is near 50% and the number of abortions each month has at least tripled, according to state health data.
The law passed Tuesday by the General Assembly is similar to a ban on abortion once cardiac activity can be detected that lawmakers passed in 2021. The state Supreme Court decided in a 3-2 ruling that the 2021 law violated the state constitution's right to privacy.
Legislative leaders said the new law makes technical tweaks that should sway at least one justice to change his mind.
But Newman said it wasn't his role to figure out if that would be successful.
“The status quo should be maintained until the Supreme Court reviews its decision,” Newman said. “It’s going to end up there.”
Hours after the ruling, lawyers for the state asked the Supreme Court to either cancel Newman's order or hear the case as quickly as possible to “protect the lives of countless unborn children," they wrote in court papers.
Planned Parenthood immediately sued after the law went into effect Thursday, saying South Carolina's abortion clinics were flooded with canceled appointments from patients further along in their pregnancies and doctors were forced to carefully review the new regulations on the fly.
The abortion rights group said the new law was so similar to the old one that clinics and women seeking treatment would be harmed if it were allowed to stay in effect until a full court review.
Nearly all of the 75 women with appointments for abortions over the next several days appeared to be past six weeks, Planned Parenthood attorney Kathleen McDaniel said.
“There is irreputable harm. It is happening. It has already happened,” McDaniel said.
The majority opinion in the South Carolina Supreme Court ruling striking down the 2021 law said that although lawmakers have the authority to protect life, the privacy clause in the state constitution ultimately gives women time to determine whether they want to get an abortion and most women don’t know they are pregnant six weeks after conception.
Justice Kaye Hearn wrote the opinion. She has since had to retire because she turned 72 and was replaced by a man, making the South Carolina’s the only high court in the country without a woman on the bench.
“I would say that nothing in the law has changed,” McDaniel said. “The only thing that has changed is there is no longer a woman on the Supreme Court.”
The changes in the new law are directed at another justice in the majority, John Few, who wrote his own opinion saying the 2021 law was poorly written because legislators didn’t show it did any work to determine if six weeks was enough time for a woman to know she was pregnant.
Few suggested he would have found an even stricter full ban on abortion constitutional, saying that if a fetus had all the rights of a person, then a ban would be like child abuse or rape laws that don’t violate privacy rights.
Lawyers for the state leaned on the hope Few will change his vote
“We would strongly encourage the court to review that decision very carefully, to understand it focuses on one law, the 2021 act,” state assistant attorney general Thomas Hydrick said. But, he said, the new law is a good faith attempt to correct flaws lawmakers saw in how the justices interpreted the 2021 law.
Newman said that's outside his role as a lower court judge. “Am I being asked to overrule the Supreme Court?" he asked.
Lawmakers continued to say they are confident they wrote a bill that will stand up to the high court's scrutiny this time.
“While I respect Judge Newman’s decision, I remain convinced that the heartbeat bill is constitutional and that the Supreme Court will agree,” Republican state Senate President Thomas Alexander said in a statement.
