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In second try, South Carolina Supreme Court upholds state’s heartbeat abortion law


“The legislature has found that the State has a compelling interest in protecting the lives of unborn children. That finding is indisputable and one we must respect.”


South Carolina’s fetal heartbeat law was ruled constitutional by the South Carolina Supreme Court today after the court had previously blocked the law.

The Court ruled 4-1 that the law, which prohibits abortion after the detection of a fetal heartbeat, was reasonable and in keeping with the state’s compelling interest to protect the lives of babies. Previously the court had ruled 3-2 that the law violated the state constitution’s guarantee of the right to privacy, which it extended to include bodily autonomy. In that ruling, the five justices issued five separate writings, showing that there was wide disagreement on the issues with the law.

After the court issued its previous ruling, the South Carolina legislature revised the law, deleting problematic clauses and articulating the purpose of the bill clearly in its findings. For example, the legislature outlawed abortion after the detection of a fetal heartbeat, not after six weeks. In its findings they “took into consideration the interests of the pregnant woman and balanced them against the legitimate interest of the State to protect the life of the unborn.” The legislature also relied heavily on experts in the field of child development during pregnancy to illustrate that banning abortion after a fetal heartbeat was not arbitrary.

Exceptions were put in place in the case of rape and incest, risk to the health of the mother, and fetal anomalies that will result in the baby’s death. The changes were so significant that Justice John Few switched his vote from the previous ruling. Few had concluded that the state constitution did not grant a right to an abortion but that the law was unconstitutional. In the latest ruling, Few wrote a concurring opinion that the most notable changes were encouraging family planning through contraceptives, even providing them through insurance.

In the ruling, the Court stated that the state constitution’s protections against unreasonable invasions of privacy did not include the right to an abortion and the law was “within the zone of reasonable policy decisions rationally related to the State’s interest in protecting the unborn.”

The Court wrote that three “fundamental principles of law inform our analysis and provide the lens” they used to examine Planned Parenthood’s challenge to the law: The South Carolina legislature’s power to legislate, the presumption of constitutionality of statutes, and grounding its decision on the narrowest possible basis.

The Court was careful to respect the right of the legislature to make the laws. “The legislature has made a policy determination that, at a certain point in the pregnancy, a woman’s interest in autonomy and privacy does not outweigh the interest of the unborn child to live. As a Court, unless we can say that the balance struck by the legislature was unreasonable as a matter of law, we must uphold the Act,” the majority wrote, adding,

“As we acknowledged at the outset, many may strongly disagree with the balance struck by the legislature from a policy standpoint; others may strongly agree with the balance struck in the 2023 Act; and still others may believe the balance should be struck more stridently in favor of protecting the life of the unborn child. This Court, however, does not make policy determinations. The legislature makes policy decisions. This is a central feature of separation of powers. Through the legal and judicial lens under which we must operate, while mindful of the difficult and emotional issue before us, we cannot say as a matter of law that the 2023 Act is unreasonable and thus violates the state constitution.”

Gov. Henry McMaster, R, celebrated the ruling, saying in a statement, “The Supreme Court’s ruling marks a historic moment in our state’s history and is the culmination of years of hard work and determination by so many in our state to ensure that the sanctity of life is protected. With this victory, we protect the lives of countless unborn children and reaffirm South Carolina’s place as one of the most pro-life states in America.”

One of the most common arguments against heartbeat bills is that women do not even know they are pregnant at that point, which is typically around six weeks. After hearing from experts, the legislature decided that a woman could learn she was pregnant within seven to fourteen days of conception and would have several weeks to decide whether to abort her child. Dissenting Justice Donald Beatty argued, “There is no factual data to support a determination that most women should learn of a pregnancy within seven to fourteen days of conception and would then have up to five weeks to decide whether to continue a pregnancy.”

Whether it is true or not that most women do not know they are pregnant until after a fetal heartbeat is detectable doesn’t really matter. The state’s compelling interest is not in ensuring that a woman have ample time to decide if she wants to keep her child but in protecting human life. The state constitution grants no right to an abortion, but it does grant a right to life. The law is not written based on when a woman knows she is pregnant or a set number of weeks, but on when a baby’s heart begins to beat because the law’s purpose is to protect the child.

The Supreme Court is to be commended for following the Constitution and recognizing the right of the legislature to make law, so long as it aligns with the Constitution. It took two tries, but South Carolina and its governing institutions finally got this one right.

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