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Do South Carolina lawmakers start over now that the abortion ban is unconstitutional?

South Carolina Supreme Court found that a woman's right to choose abortion is protected under the South Carolina Constitution.

COLUMBIA, S.C. — South Carolina's fetal heartbeat abortion law, which essentially banned all procedures after six weeks, has been ruled unconstitutional.by the state supreme court. But is that the end of the law, and what kind of measure could potentially replace it.

The state's justices decided on a 3-2 vote that the law, passed in 2021, violated the state constitution's right to privacy. The justices felt six weeks--which is before most women known they're pregnant--did not give women enough time to make a decision about whether to have the procedure. Abortion rights advocates hailed the decision but anti-abortion advocates vowed to try and find a way to put similar restrictions on abortion again. 

Just a handful of states have a privacy provision in their constitution and it's believed the justices' ruling is a novel one for the nation.

“This is the first time that a state court has declared that a state constitution’s right to privacy covers a woman’s right to choose an abortion,” Kirk Randazzo, the head of the political science department at the University of South Carolina, said. 

He said this decision would dictate the language in a new bill if lawmakers decide to revisit the issue. 

“What this means for the legislature is they have to go back to the drawing board and come up with another statute if they wish to reduce the ban from the current 22 weeks,” Randazzo said.

The 22 weeks he referred to includes the gray period when fertilization begins.

Scott Bauries, a professor of law at USC, believes there isn’t a possibility for an appeal.

In a statement to News19 he said, “This is a state-law issue under the state constitution, and the United States Supreme Court does not have jurisdiction over it, so the South Carolina Supreme Court is the final word.”

Randazzo said because of the nature of the June Supreme Court decision which threw out Roe vs. Wade and left the fate of abortion to states,  a federal appeal is unlikely.

“That essentially made this a state law action,," Randazzo said. "I doubt the U.S. Supreme Court would grant certiorari [meaning review the case] and hear that appeal." 

For lawmakers, it's back to the drawing board and we will see if abortion is taken up during the legislative session. The South Carolina legislative session begins Tuesday, January 10th.

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