At AmericanProlifer.com we have examined the need for judicial reform in states where state supreme courts are chosen by liberal interest groups instead of by the people.
Even in states where people elect their Supreme Court directly or through their legislatures judges have to be carefully scrutinized. South Caroline is one of these states. South Carolina boasts a 2:1 majority of Republicans in each chamber of the state legislature as well as a Republican Governor and Attorney General.
Yesterday, the South Carolina Supreme Court decided to enjoin (another word for “block”) the enforcement of the South Carolina Heartbeat Abortion Ban. Laws are enjoined by courts for specific reasons, specifically when they determine that there will be: (1) immediate, irreparable harm if the injunction is not granted; (2) a likelihood of success on the merits; and (3) no adequate remedy at law.
A unanimous SC Supreme Ct. ordered the injunction based on the first element alone, citing its intent to maintain the “status quo”, meaning the continued killing of unborn children, while the merits of the case are decided.
We have carefully considered these factors and are persuaded the proper course of action is to maintain the status quo, as explained below. We offer no opinion on the likelihood of success on the merits. To the extent we address the merits, we acknowledge an arguably close question is presented, which further supports the need to maintain the status quo by granting a temporary injunction.Smith v Planned Parenthood
The Court’s Faulty Reasoning
While the abortionists argued that South Carolina’s constitution creates a “right” to abortion under the right to privacy, the court instead relied on a statute passed by the South Carolina legislature in 1974 which codified Roe v. Wade to justify the injunction. The 1974 statute was adopted by the state legislature following a South Carolina Supreme Court decision in the case of State v. Lawrence (1973) where the court acquitted an abortionist convicted under South Carolina’s existing statutes. In the Lawrence ruling, the SC Supreme Ct. declared the existing abortion prohibitions were unconstitutional after the Roe v Wade decision, and called upon the state legislature to enact new legislation in keeping with Roe.
In an absolutely disingenuous turn, the SC Supreme Court is now stating that although Roe has been overturned at the federal level, the 1974 law retains the “Roe framework.”
It necessarily follows that the codification of Roe in section 44‑41‑20 (the 1974 statute) remains part of the public policy of this state, notwithstanding the recent Act.Smith v Planned Parenthood
The South Carolina Supreme Court rests the weight of its reasoning upon a boilerplate section of the 2021 Heartbeat Law, Sec. 44-41-710, which was inserted to preserve any existing abortion regulations in case the Heartbeat law was ruled unconstitutional. The court focuses on the first sentence on the section, which read on its own, appears to support the court’s assertion that the 1974 law remains in place.
This article must not be construed to repeal, by implication or otherwise, Section 44-41-20 (the 1974 statute) or any otherwise applicable provision of South Carolina law regulating or restricting abortion.44-41-710
If, as the court states, the Heartbeat law did not repeal any of the 1974 statute but instead deferred to it, the heartbeat law itself would be void and meaningless.
The problem with this interpretation is twofold.
First, court’s reading of the Heartbeat law would make the law superfluous or meaningless since the 1974 statute allows abortion on demand in the first two trimesters and with an abortionist’s recommendation in the third trimester. Given that the purpose of the heartbeat law is to ban abortion after a heartbeat is detectable, interpreting that the Heartbeat law intended to preserve and defer to the 1974 statute is nonsensical since it would negate the very purpose of the Heartbeat law.
Secondly, the court conveniently leaves out the rest of Section 44-41-710, which specifically describes the interplay between the Heartbeat law and the 1974 statute.
An abortion that complies with this article (the Heartbeat law) but violates the provisions of Section 44-41-20 (the 1974 statute) or any otherwise applicable provision of South Carolina law must be considered unlawful as provided in such provision. An abortion that complies with the provisions of Section 44-41-20 or any otherwise applicable provision of South Carolina law regulating or restricting abortion but violates this article must be considered unlawful as provided in this article.44-41-710
In other words, the Heartbeat law makes clear that if an abortion was illegal under the 1974 statute or any other statute, but not under the Heartbeat law, it remains illegal. But, if an abortion were legal under the 1974 statute or any other statute but is prohibited by the Heartbeat law, it is now illegal.
The Heartbeat law could not be any clearer, if there is any conflict between the Heartbeat law and any other law, the Heartbeat law resolves it by choosing the option that most restricts or limits abortion.
The court apparently simply ignores this very straightforward reading and instead pretends that the 1974 statute, which was only passed after the court itself required it, represents the will of the legislature.
The South Carolina Supreme Court pretends that it is not ruling on the constitutionality of the Heartbeat law under an invented state right to abortion.
At this preliminary stage, we are unable to determine with finality the constitutionality of the Act under our state’s constitutional prohibition against unreasonable invasions of privacy.Smith v Planned Parenthood
The reason given by the SC Supreme Ct. – that somehow the Heartbeat law intended to be meaningless by deferring to the 1974 statute – is so weak that the only credible alternative is that the court has actually decided that abortion is a fundamental right under the state constitution and it is just buying time.
Time will tell. In the meantime, babies will continue to perish thanks to the abortion lobby’s legal efforts and a compliant judiciary in a state dominated by conservatives.
This should be a wakeup call to all pro-lifers (legislators and regular citizens) that we cannot continue to stay on the sidelines and allow pro-aborts to skate in to positions of influence on state courts.
Pro-life Americans must take judicial reform seriously and force legal experts running for appointed or elected positions on state courts to declare their view on when life begins.