Challenging SC's Abortion Ban Any Way We Can
New lawsuit seeks clarity on women's rights to privacy and healthcare
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A quick recap on how South Carolina effectively banned abortion for most women in the state: after Roe fell in 2022, the legislature and governor fast tracked signing a“fetal heartbeat” bill into law. Malissa Burnette (SC feminist hero—she also helped to integrate the Citadel and achieve marriage equality in the state) and Planned Parenthood quickly moved to challenge the law, arguing it violated a woman’s right to privacy as guaranteed in the South Carolina state constitution.
I’ve known Malissa for almost ten years (her daughter Grant, now also a lawyer, was a student of mine at PC). They’re both an inspiration.
In January of 2023, the SC Supreme Court ruled 3-2 that the ban did in fact violate privacy. Unfortunately, the only woman on the court, Justice Kaye Hearn, retired shortly after because of the age limits, and Justice Gary Hill (from Greenville, by all accounts a cool guy so I was hopeful about him being into women’s rights) replaced her. The legislature very slightly tweaked the language of a new ban, and passed another fetal heartbeat law. This time, Justice Few switched his vote and Justice Hill (in a seemingly quid pro quo to guarantee his court appointment by the legislature, don’t get me started on separation of powers in this state) joined with his other white male colleagues to uphold the ban in August of 2023.
When they upheld the ban (with Justice Few very clearly simpering before his legislative appointing overlords), they agreed that the law did in fact violate women’s privacy, but that the violation had to be held in balance with the state’s interest in “protecting life.” The justices seemed to think that six weeks was plenty of time for women to know they’re pregnant and obtain an abortion. The sole dissenting opinion, by Chief Justice Donald Beatty (the only Black man on the court), was barely constrained in calling out the threadbare legal reasoning on the part of his colleagues, including their laissez faire approach to the absolutely unclear limit in the current ban. Few said they’d just “leave it to another day” to clear up when exactly the ban should take effect, considering 1) there is no “fetus” at six weeks, when electric activity is detectable (it is an embryo) 2) there is no heart until at the very earliest nine weeks.
So this month Malissa and Planned Parenthood filed yet another lawsuit on behalf of a woman named Taylor Shelton, Dr. Katherine Farris (an abortion provider) and Planned Parenthood and their patients. Shelton did everything the justices imagined a woman could hypothetically do in order to access abortion care before six weeks. She had an IUD, access to regular medical care, and took a pregnancy test as soon as she suspected she was pregnant. Despite her vigilance and immediate action, she was unable to secure an appointment with an abortion provider in the state (there are very few).
She had to travel multiple times to North Carolina, where she first was tricked into an appointment with a crisis pregnancy center (when she called them, they didn’t clear up for her that they didn’t provide abortions, obviously happy to trap her if it meant delaying or preventing an abortion). She had to travel to North Carolina multiple times before ultimately receiving the abortion care she spent weeks and many resources seeking (North Carolina passed a monster trap law last year banning abortion after 12 weeks after a state legislator switched parties and handed the Republicans a supermajority that could override their Democrat governor).
The Shelton case is attempting to force the Court to clarify the six or nine weeks window, arguing that six weeks is an unreasonable limit. I hate that we’re fighting for crumbs here, but pushing the window out to nine weeks under the current law seems the only possible change we can make with this legislature and governor in place. Until a federal law is passed, we’re left fighting for any shred of privacy and access to medical care. Kudos to Malissa, Dr. Farris and all the staff at Planned Parenthood South Atlantic for staying in the fight.
One of the most important things you can do to help is donate to our local abortion funds and Planned Parenthood. Our Palmetto State Abortion Fund has a really lovely flower fundraiser going… buy those spring seeds and help women access the care they need (most of them out of state).
So pretty! Get some!
Next week on Thursday 2/29 (leap year!) the Pridefest Collaborative is having a fundraiser to help support Pride and LGBTQ+ organizations and folks in the Upstate. It looks like a super fun party, get your tickets now (or donate to support Pride in the Upstate). And save the date June 8th for Pridefest!
(Also I went to the Queer Zines exhibit at Furman this week with some dear friends and it was such a blast. WGSS partnered with our LGBT Chamber’s Queer Arts Initiative to host the event and it was a fabulous mix of faculty, students and community members. If you missed the event but want to donate to support WGSS’s work at Furman, here’s the link to their newly dedicated fund.)
1) Please keep reporting!
2) Looks like Justice Blackman's standard of "viability" from Roe is the only one that still makes sense as to the outer limit of when non- judicially involved --if Judges are ever required at all as to women's medical care -- abortions take place. If a "heart beat";is not even present until 9 weeks and even if a heartbeat is "there" then the "mass of protoplasm in an almost shrimp-like shape" cannot live on its own at that stage. How the H is a six week ban ever making sense / is rational?The "blob" is not a "child" in any biological sense;
3) If I were at least a tort lawyer in practicing in any state -- I practice in FL in other areas of the law-- I'd recommend to a client to go after ANY "crisis pregnancy" clinic for at the very least "unfair and deceptive trade practices, intentional infliction of emotional distress, and even to see if the clinic has violated criminal laws, such as "scams" and "fraud" and whatever goes with the facts. Further, if the woman was arrested and charged with any crimes, I'd point out to the State Attorney and Judge and media the interference by the clinic that was part of the causes for the woman to miss any abortion deadlines. Perhaps charges can be downgraded and/ or perhaps the clinic circumstances could be used to mitigate any sentence, and for plea negotiation purposes.
4) Everything in my post are just my first thoughts, but here's the final one for right now: I'd file a complaint with the State's judicial qualifications board and state's bar against any judge that applied a standard based upon his or her religious beliefs as a violation of his / her oath and state and federal constitutions and/ or any applicable states, rules, Bar ethics rules, etc. I'd ask for the Judge to recuse himself and for a new trial, new impartial judge or appellate panel and appeal.