South Carolina's top court weighs six-week abortion ban

Abortion rights demonstrators protest outside the Senate chambers in Indianapolis, Indiana, U.S. August 5, 2022. REUTERS/Cheney Orr
  • Planned Parenthood argues ban violates state constitution's right to privacy
  • Similar laws have been challenged in multiple states since U.S. Supreme Court eliminated nationwide abortion rights

(Reuters) - Planned Parenthood on Wednesday urged the Supreme Court of South Carolina to overturn the state's ban on abortion after about six weeks of pregnancy, arguing that it runs afoul of the right to privacy guaranteed by the state's constitution.

Julie Murray of Planned Parenthood began her oral argument to the five justices in Columbia by questioning the premise of the law, which bans abortion when a fetal heartbeat is detected, typically around six weeks.

"At that stage of pregnancy there is no heartbeat," she said. "In fact, there is no heart at all," only "electrical impulses" in embryonic tissue detectable by ultrasound.

Murray faced skeptical questions from the justices throughout her argument. All five were appointed to the court by the state's Republican-controlled legislature, though Chief Justice Donald Beatty was a Democratic state lawmaker in the 1990s, and was nominated to the federal bench by Democratic President Barack Obama.

The state ban took effect after the U.S. Supreme Court eliminated the longstanding right to abortion in June in Dobbs v. Jackson Women's Health Organization.

Murray argued that the ban violated a 1971 provision of the state constitution guaranteeing protection from "unreasonable invasions of privacy."

Asked by some of the justices at what stage of pregnancy the court should draw the line for abortion to be legal - and whether that would be a policy question better decided by the legislature - Murray answered that it did not need to decide that question at all.

"We are asking for a categorical ruling that at six weeks of pregnancy a complete ban on abortion is categorically unreasonable," she said.

Kevin Hall of Womble Bond Dickinson, arguing for the state legislature, said that the right to privacy in the state constitution was largely limited to protecting South Carolinians from unreasonable searches and seizures. Justice John Few said he was concerned that argument went too far.

"I understand you want to win this case, but you don't have to emasculate the privacy rights of South Carolina citizens in order to do so," he said.

Hall said that, even if the right to privacy extends to medical treatment, abortion is a special case because it involves the "fundamental interest" of the "life of the unborn" as well as the patient.

Justice Kaye Hearn asked Hall to comment on the fact that major medical associations have agreed with Planned Parenthood that there is no true heartbeat at six weeks.

"Those are arguments they make to legislative bodies, and that's where they should make them," Hall countered.

The oral argument in Columbia comes two months after the court temporarily blocked the law while it considers the challenge.

More than 60 abortion clinics in 15 states have closed as Republican-led states have adopted new abortion bans since the Supreme Court decision. Many of those bans are being challenged in state courts.

The case is Planned Parenthood South Atlantic et al v. State of South Carolina, Supreme Court of South Carolina, No. 2022-001062.

For plaintiffs: Julie Murray of Planned Parenthood

For the state: Kevin Hall of Womble Bond Dickinson

Read more:

South Carolina top court puts abortion ban on hold as it hears challenge

South Carolina Senate moves to further restrict access to abortions

Over 60 clinics in 15 U.S. states ceased abortion care post-Roe - study

Reporting By Brendan Pierson in New York

Our Standards: The Thomson Reuters Trust Principles.

Thomson Reuters

Brendan Pierson reports on product liability litigation and on all areas of health care law. He can be reached at brendan.pierson@thomsonreuters.com.