Four Old White Guys Decide Women's Healthcare in SC Should Be Worse

The SC Supreme Court upholds a poorly defined abortion ban, and the fight continues

On Wednesday, the four old white men on the South Carolina Supreme Court decided that although this year’s abortion ban DID violate the privacy rights guaranteed in our constitution, that it didn’t matter, because it concerns women, and whatever embryo or fetus is happening is more important than our lives.

Kitteridge, writing for the white male majority explains how their reasoning really rests on not seeing girls and women as people who should have rights:

The 2023 Act, with exceptions, bans abortion after the detection of a fetal heartbeat, as that term is defined by statute. Does the Act infringe on a woman's privacy interest? Are the concerns and challenges of Planned Parenthood worthy of this Court's profound respect and careful consideration? The answer to both questions is unequivocally "yes." To be sure, the 2023 Act infringes on a woman's right of privacy and bodily autonomy. Even so, and despite our temporary acceptance of an expansive construction of the privacy provision in article I, section 10, 12 the constitutional question before us is not easily answered. 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. 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.

Y’all, I have zero legal training and I say this reasoning is complete garbage. Isn’t their job to figure out if the law violates the constitution, and if it does, then the law has to be struck down? It’s very interesting to me how many times Bro Kitteridge writes about the separation of powers. In South Carolina, there’s not much, because our legislature appoints the Supreme Court justices, which is how we ended up with this misogynistic group in the first place.

You’ll remember the Court JUST STRUCK DOWN an ALMOST IDENTICAL abortion ban, but then Justice Kaye Hearn, the only woman on the court, had to step down this year because she reached the mandatory retirement age. White Guy Gary Hill replaced her, and I was hopeful he’d be good at law things and uphold precedent, but apparently he felt beholden to the legislators who denied the two highly qualified women that were in the running ahead of him to replace Hearn, and was like, thanks for doing me a solid, guys, I will totally uphold your medically inaccurate and deadly abortion ban, no problem! White Guy Justice Few, who five seconds ago ruled that abortion bans violated privacy, flipped his decision and, viola, four white guys on the bench get to pat themselves on the back that they ruled that if the privacy rights in question are for women, then fuck that, what the white male legislators and white male governor want is more important.

Image from PSAF. Donate here.

So what now? Delightfully, because the people that wrote the abortion ban don’t know anything about science or medicine or how bodies work, just cut and paste the language of the bill from a bunch of extremist anti-abortion folks who are so desperate to get people to support these bans that they were like, I know! We’ll say that you can’t do abortions once there’s a heart! So our crackerjack South Carolina legislators were like, great, we’ll call it the “Fetal Heartbeat and Protection from Abortion Act.” But #1 there is no fetus until eight to ten weeks of pregnancy and #2 there is no heart until 17 to 20 weeks of pregnancy. The four white guys in the majority opinion were like, um yeah, this is tots unclear but whatevs, we’re not going to deal with it now when we can just shut down healthcare for pregnant people right away. Justice Beatty, writing the sole dissenting opinion, was like, WTF:

Whether informed choice can exist, however, depends upon a critical factual determination as to when a fetal heart is actually formed. However, the majority noticeably did not explore this point, despite taking the unusual step of removing this topic (the validity of an abortion ban) from the circuit court and hearing it in this Court's original jurisdiction twice in one year. Because the majority has elected to leave the determination of what the 2023 Act means "for another day," yet has, paradoxically, upheld its constitutionality, I must dissent. Concluding the 2023 Act is valid while remaining silent as to its timing—and without clearly rejecting any implication that it is reinstating what is at least perceived to be, effectively, a six week ban—is concerning to me, and the fear of political retribution in this matter is palpable. Today's result will surely weigh heavily upon the public and our state's medical professionals, in light of the threat of criminal penalties placed upon practitioners and the serious harm that could occur to women who could be denied reproductive health care during this uncertainty.

So now the abortion providers and Malissa Burnette and other awesome lawyers are pushing back, asking the court to please clarify when exactly abortion is banned, and are arguing that the court should suspend the ban until the doctors in the state can be provided clarity. As always, I’m so grateful to them for taking these men on, and fighting as long as they have to guarantee women have abortion access in the state. Here’s hoping the four white guys realize they’re not doing such a great job and try a little harder to do the judge things they were anointed, I mean, appointed to do.

Image from The Post and Courier.

In the meantime, girls and women in the state now have to travel hundreds of miles to access care. Georgia has an almost-total ban, so people will have to travel to Virginia and possibly as far away as Maryland. Two abortion funds help people access care out of state: the Palmetto State Abortion Fund and the Carolina Abortion Fund. If someone you know is considering ordering abortion medication, please remember that anyone in South Carolina who supplies abortion medication to other people can be charged with a felony and sentenced to up to five years in prison. If you self-administer, it is a misdemeanor and you can go to jail for up to two years (Section 44-41-80). We are the only state that criminalizes self-managed abortion. Please be careful with digital records and know that our state Attorney General is currently trying to get the private medical records of people who go out of state to obtain an abortion. I have no doubt law enforcement and district attorneys will prosecute women for attempting to self-manage abortion.

Don’t lose hope. We have to fight to transform the legislature in 2024 and we have to get federal abortion protections in place. In a post-Barbie world, I think the odds are in our favor, even if it’s a long slog.