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SC abortion ruling being challenged by state attorney general

A new justice is expected to be on the bench if the court decides to take up the case again.

COLUMBIA, S.C. — South Carolina Attorney General Alan Wilson is asking the state supreme court to reconsider its ruling that threw out the state's fetal heartbeat abortion ban.

Wilson filed a petition Monday for the South Carolina Supreme Court to rehear the case. 

Back on January 5, the court struck down a law passed in 2021 that outlawed abortion after cardiac activity is detected — typically around six weeks — ruling the restriction violates the state constitution's right to privacy. 

"We respectfully disagree with the Court’s decision and believe the intent of the South Carolina Constitution is clear," Wilson said in a statement after the filing. "The framers of our privacy provision did not conceive this provision as creating a right to abortion."

The ban, which included exceptions for pregnancies caused by rape or incest or pregnancies that endangered the patient’s life, drew lawsuits almost immediately. Since then, legal challenges have made their way through both state and federal courts. 

Federal courts had previously suspended the law. But the U.S. Supreme Court’s overturning of Roe v. Wade allowed the restrictions to take place — for just a brief period. The state Supreme Court temporarily blocked it this past August as the justices considered a new challenge. 

In South Carolina, lawyers representing the state Legislature have argued that the right to privacy should be interpreted narrowly. During oral arguments this past October, they argued historical context suggests lawmakers intended to protect against searches and seizures when they ratified the right in 1971. Planned Parenthood attorneys representing the challengers have said the right to privacy encompasses abortion. They argued previous state Supreme Court decisions already extended the right to bodily autonomy.

But a quirk in politics could make this motion to rehear potentially significant. When the court issued its 3-2 decision, Justice Kaye Hearn was sitting on the bench and wrote the majority opinion. However, she had to retire because state law says South Carolina judges must step down when they reach the age of 72.

The South Carolina General Assembly will pick Hearn's successor, and while the vote is later this week, Judge Gary Hill is all but assured to be the choice. That's because two other potential candidates dropped out ahead of the vote. He should be seated on the bench by the time the court considers Wilson's request.  

Assuming Hill wins, the state's high court will be all male for the first time in 35 years. 

Meanwhile, a new bill that would ban nearly all abortions is currently working its way through the state legislature. The "Human Life Protection Act" would ban abortions with exceptions for rape, incest, fetal anomalies and life of the mother. 

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