The S.C. Supreme Court

At least three big things will happen after a major Thursday slap to the legislature by the state Supreme Court as it overturned a 2021-passed six-week abortion ban:

FIRST: Outrage. The male-dominated, Republican abortion wingnuts are going to get crazier. Well, crazier than usual. First there will be a bunch of finger-pointing on “how could this have happened?” And then they’ll get down to work (they probably already are) to digest the ruling, pick it apart and figure out new ways for state government to get its clammy hands on what women choose to do with their bodies.

SECOND: Logjam. The GOP, which tried to pass an even tougher abortion ban last year — as if a six-week ban wasn’t enough — will be on the warpath in the 2023 session to try to implode the “back to normal” hurdle on abortions after 20 weeks. Proposals for new abortion legislation will come fast and furious. They will suck the air out of the Statehouse and leave the legislature little room to accomplish anything else in the 2023 session. All thoughts of big progress on economic development, better schools, better health care, better infrastructure and more will mostly go out of the window, snared by the ongoing culture wars pushed by a minority (white men) on the rest of the state. Look for 2023 to be remembered as the year of “at least we passed a budget.”

THIRD: Flip the court. The author of the court’s 3-2 majority opinion, Justice Kaye Hearn, is expected to retire in February. That will set up a huge race to replace her. The likely outcome will be for the legislature, in a fit of “we’ll show you” pique, to elect a very right-wing Republican jurist to flip the court to create a safe conservative majority that could rule in favor of any future narrower abortion ban.

What’s kind of amazing, if you read through the long court opinion delivered Thursday, is that overturning the abortion ban from 2021 was a pretty conservative decision by the high court. Why? Because the majority interpreted the state constitution based on what it says — that there is an explicit right to privacy that protects people from government intrusion in their personal affairs. South Carolina’s constitution includes this explicit right written into its constitution, unlike the U.S. Constitution, which only implies it.

Article 1, Section 10 of the South Carolina Constitution is pretty clear on its face: “The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures and unreasonable invasions of privacy shall not be violated.”

In the majority opinion, Hearn explained, “In interpreting this text, we must not only give the words their plain and ordinary meaning, but we must also give meaning to the entire text, and not render any provision meaningless.”

Furthermore, if you read the words of a concurring opinion by Chief Justice Donald Beatty, you can see how he went out of his way to explain that overturning the ban was a constitutional decision, not a political one:

“Most commonly, people divide themselves into ‘pro-life’ and ‘pro-choice’ camps. The decision today is not so limited. Our decision today is neither ‘pro-choice’ nor ‘pro-life’; it merely recognizes that our state constitution grants every South Carolinian a right to privacy, equal protection, and due process of laws. This fundamental, constitutional mandate transcends politics and opinion.”

A conservative woman with libertarian leanings in her 60s who we know reacted immediately when told of the court’s decision on the abortion ban: “I don’t want any insurance company or any government telling me what I can do with my body. Hands off.”

That’s what the majority of people in South Carolina believe in poll after poll. Republicans in the legislature ought to tune in to what most people believe, not just the nutjobs on the far right.

Read the opinion and its conclusion: “The State unquestionably has the authority to limit the right of privacy that protects women from state interference with her decision, but any such limitation must be reasonable and it must be meaningful in that the time frames imposed must afford a woman sufficient time to determine she is pregnant and to take reasonable steps to terminate that pregnancy. Six weeks is, quite simply, not a reasonable period of time for these two things to occur, and therefore the Act violates our state Constitution’s prohibition against unreasonable invasions of privacy.”

Andy Brack is editor and publisher of the Charleston City Paper and Statehouse Report.  Have a comment? Send to:

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