In a direct challenge to the recent pro-abortion SC Supreme Court decision, the Constitutional Laws Subcommittee of the South Carolina House Judiciary Committee advanced a new Human Life Protection Act (H3774) to the full Judiciary Committee. The full House Judiciary Committee will take up the bill on February 7, 2023.
The new legislation is described in the summary as an “abortion ban with exceptions.”
While the bill’s summary states that contraceptives and assisted reproduction will not be affected, it remains to be seen if children conceived in rape will be protected. With regards to abortion in the case where the life of the mother is in danger, it is common medical knowledge, outside of the pro-abortion activist community, that intentional abortion is never necessary to save the life of the mother. Nevertheless, many legislative proposals include “life of the mother exception” that is broader than necessary.
The way that the legislation goes about exceptions, is likely to have a very significant impact on whether the bill can stand up to judicial scrutiny, given the legislature’s goal of defining the right to life as a fundamental right to life and the internal inconsistency that the “exceptions” pose to the definition of a fundamental right and equal protection.
The Recent Pro-Abortion State Supreme Court Decision
The South Carolina Supreme Court started 2023 in the worst possible way, overturning pro-life legislation and in the process creating a state constitutional right to abortion.
Writing a concurrence to the majority opinion of Justice Kaye Hearn, Justice Few commented that the legislature had failed to pass legislation to protect the right to life as a fundamental right when it considered the issue in the past, and therefore the court should not treat the right to life of the preborn as fundamental.
The pro-abortion judges were Chief Justice Beatty, Justice Hearn, and Justice Few.
First, it is important to stress what is not a State interest that justifies the “six-week
bill.” For years, a minority of the General Assembly attempted to enact legislation
banning abortion altogether. Those “personhood bills”—based on what would have become a legislative finding that human life begins at conception—consistently failed to gain majority support.
This year, the House of Representatives passed a near-total ban on abortion. Like its predecessors, H. 5399—had it passed the Senate—would have been based on the finding, “It is undisputed that the life of every human being begins at conception.” Had H. 5399 become law, the State may have had a good argument there is no countervailing interest that could render unreasonable the State’s use of a total ban on abortion to protect human life from the point of conception.
In other words, if the State were to pass a total ban on abortion—despite a complete invasion of a pregnant woman’s right to privacy—the privacy invasion might be reasonable under article I, section 10, because “human life” has no countervailing interest; human life simply must be preserved. But the General Assembly failed to pass the personhood bills, and this year the Senate refused to pass H. 5399. S. Journal, 124th Leg. Sess., at __ (S.C. Oct. 18, 2022). Thus, despite consistent efforts, there is no legislative policy determination that human life— “personhood”—begins at conception, and there is no such State interest that justifies enacting the six-week bill.Justice Few concurring in the majority opinion in Planned Parenthood v. South Carolina, 2023
Judicial Selection Process In The Crosshairs
The ruling of the SC Supreme Court was decided on the narrowest of margins with three justices voting for abortion and two against. Pro-abortion Justice Kaye Hearn reached the mandatory retirement age of 72 and will be replaced soon by the state legislature. Another pro-abortion judge, Chief Justice Beatty, will also be reaching the mandatory retirement age and will have to be replaced by the legislature this year.
The vacancies highlight the importance of the judicial selection process and the deficiencies in a system that has yielded one liberal decision after another in a conservative state.
While some Republicans and most Democrats are also focusing on the fact that the court is likely going to be made up of five men and no women. Republicans, like Senator Richard Cash are focusing on the flawed process of judicial selection which has consistently yielded judges who align more with the liberal state bar association than with the elected representatives who are supposed to select the judges.
Senator Cash and others in the South Carolina house successfully delayed the final vote on Justice Hearn’s replacement, after calling attention to a process where the selection committee narrowed down the slate of eligible judges to just one judge, rendering the full vote by the legislature meaningless.
I understand that delaying a Supreme Court election would be an unusual step. But we are dealing with what many people have said to me in private conversations, what many of us believe to be a constitutional crisis, judicial activism, legislating from the bench.SC Senator Richard Cash
The delay on the vote is aimed to allow the legislature to consider a bill put forward by Rep. Massey that would empower the entire legislature, not just a South Carolina Bar Association’s cherry-picked 10 member Judicial Selection Committee, to consider all qualified candidates.
Governor McMaster Also Calls for Judicial Reform
During his annual State of the State address, Gov. Henry McMaster also called for South Carolina to re-examine and overhaul how it goes about selecting its judges.
McMaster is proposing that the governor appoint judges, with the advice and consent of the State Senate, in a similar fashion to the method employed by the US Constitution for the federal judiciary, instead of allowing an expert committee to recommend a preselected and limited slate of candidates as is currently the case in South Carolina.
“It appears that the public’s confidence in this arrangement is waning,” McMaster said. “Too often, the people’s business is unattended. Justice delayed is justice denied.”
American Pro-Life will continue to report on this complex developing story.