All-Male State Supreme Court Reconsiders Abortion Ban After Lone Female Justice Retires

Tessa Stuart
·3 min read
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“Six weeks is, quite simply, not a reasonable period of time,” the majority held, in an opinion authored by Justice Kaye Hearn.

In January, South Carolina’s Supreme Court struck down the state’s six-week abortion ban as unconstitutional. The 3-2 majority explained that, while the state has the authority to impose limits on the right to privacy, “any such limitation must be reasonable and… the time frames imposed must afford a woman sufficient time to determine she is pregnant and to take reasonable steps to terminate that pregnancy.”

Hearn, the lone woman on the court, left the bench in February after reaching the mandatory retirement age. When she left, South Carolina’s Supreme Court became an all-male body for the first time in 35 years. It is the only state Supreme Court in the entire nation with no female members.

On Tuesday — less than six months after it issued that decision — the newly male-dominated court heard arguments in another challenge to a ban that is virtually identical to the one it just struck down.

The new six-week ban passed the South Carolina State Senate last month, over the strenuous objections of every single woman — Republican, Democrat and Independent — in the chamber. The bipartisan coalition of female senators succeeded at blocking the bill during the regular legislative session, but they were unable to hold it off for a second time, during a special session called by Republican Gov. Henry McMaster.

“It’s time for men in this chamber — and the ones across that hall and all across the state of South Carolina — to take some ejaculation responsibility,” Republican Sen. Katrina Shealy said in May while attempting to filibuster the law a second time. The vote was eventually allowed to proceed, and the ban was passed by a vote of 27-19.

The new law, like the old one, prohibits abortion after the first visual flutter can be observed in an embryo, typically around the 6th week of gestation — before many women even realize they are pregnant. (Anti-abortion activists claim the flutter constitutes a “heartbeat,” but the American College of Obstetricians and Gynecologists disputes that characterization, saying a fetal heartbeat cannot be observed on an ultrasound until somewhere between 17 and 20 weeks.)

Doctors accused of violating the law could face felony charges and penalities of up to $10,000, two years in jail, and the loss of their medical license. A lower court judge temporarily blocked the ban in May, one day after it was signed into law. Abortions are currently legal up to 22 weeks of pregnancy in South Carolina.

It was not clear at oral arguments in which direction the newly-appointed justice, Gary Hill, who previously sat on South Carolina’s Court of Appeals, was leaning.

Hill, who ran unopposed for the position, was elected by members of the legislature earlier this year. The Post and Courier reported that two female candidates vying for the role removed their names from consideration after it became clear a majority of legislators would be backing Hill.

House Minority Leader Todd Rutherford, a Democrat, said at the time he believed Republican lawmakers were lining up behind Hill “based on the belief that he is the pro-life candidate.”

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