South Carolina Supreme Court Blocks Fetal Heartbeat Abortion Ban

Meanwhile, lawmakers have advanced a near-total abortion ban in the state legislature

A pro-life activist holds plastic unborn babies during a protest on Capitol Hill in Washington, on July, 29, 2010. (Jim Watson/AFP via Getty Images)

The South Carolina Supreme Court on Aug. 17 temporarily blocked the state’s law banning abortions after a fetal heartbeat is detected, which is at about six weeks gestation.

South Carolina’s abortion ban was signed into law by Republican Gov. Henry McMaster in February 2021 but was blocked from being enforced soon after by an Obama-appointed federal judge.

The abortion ban did not come into effect until after the U.S. Supreme Court on June 24 overturned the 1973 Roe v. Wade decision. For nearly 50 years, Roe had overturned state laws by prohibiting states from banning abortions prior to when the fetus is deemed “viable”—or potentially able to live outside its mother’s womb—deemed at around the second trimester of pregnancy at 24 weeks.

Planned Parenthood South Atlantic sued in July, arguing in court documents (pdf) that the fetal heartbeat abortion ban “violates the South Carolina Constitution’s right to privacy and its guarantees of equal protection and due process.”

A judge on July 26 had denied a request for a temporary injunction to block the law’s enforcement as litigation continues.

The unanimous order from the South Carolina Supreme Court on Aug. 17 grants a temporary injunction to Planned Parenthood South Atlantic, as justices consider the law’s compliance with the state constitution.

“At this preliminary stage, we are unable to determine with finality the constitutionality of the Act under our state’s constitutional prohibition against unreasonable invasions of privacy,” the court wrote in its order granting a preliminary injunction.

The justices said that they “nevertheless recognize the plenary authority of the legislature to legislate and make public policy decisions” within the constraints of the U.S. and South Carolina constitutions.

Abortions up to 20 weeks of gestation are for now allowed in the state, with exceptions to protect the life of a pregnant woman, or if there is a “fetal anomaly.”

The state’s Supreme Court decision comes on the same day that the South Carolina Senate’s Medical Affairs Committee began considering language on a separate abortion ban that prohibits nearly all abortions except when the life of the mother is at risk. There would be no exception for pregnancies caused by rape or incest. The bill would not restrict contraception access.

The bill was advanced on the previous day by the Republican-dominated South Carolina House Judiciary Committee in a 13–7 vote.

Republicans control both the state House and Senate, but they are a few seats short of a two-thirds majority.

Jenny Black, president and CEO of Planned Parenthood South Atlantic, applauded the South Carolina Supreme Court’s decision on the fetal heartbeat abortion ban. She said in a statement that the law “interferes with a person’s private medical decision.”

“Today the court has granted our patients a welcome reprieve, but the fight to restore bodily autonomy to the people of South Carolina is far from over. No matter what happens, we will never stop fighting for our patients’ right to make their own decisions about their bodies and futures,” Black said.

In a statement to outlets, South Carolina Attorney General Alan Wilson’s office said: “While we are disappointed, it’s important to point out this is a temporary injunction. The court didn’t rule on the constitutionality of the Fetal Heartbeat law. We will continue to defend the law.”

Speaker of the House Murrell Smith said he was “extremely disappointed” in the decision, but remained confident the measure would ultimately hold up.

“The law is the overwhelming will of the South Carolina Legislature, and therefore a reflection of the will of the people of this state,” he said on Twitter. “However disappointing this decision may be, I remain confident of the law’s constitutionality and look forward to it being the law of our state once again.”

The Associated Press contributed to this report.