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Judge Enjoins Fetal Heartbeat Protection Law, Sends Case to the S.C. Supreme Court

by | May 26, 2023

By Holly Gatling, Executive Director, South Carolina Citizens for Life

COLUMBIA, S.C. (Friday, May 26, 2023) – As Senate Majority Leader Shane Massey, R-Edgefield, accurately predicted, the Fetal Heartbeat and Protection from Abortion Act (S474) was stopped from taking effect Friday pending review by the South Carolina Supreme Court.

Almost 24 hours to the minute after Governor Henry McMaster signed the law protecting unborn babies with beating hearts from death by abortion, Circuit Judge Clifton Newman said he will “maintain the status quo” – meaning he will not overturn the State Supreme Court’s previous 3-2 ruling striking down an older heartbeat law passed in 2021. Abortion businesses can resume killing unborn children up to 20 weeks of pre-natal life pending action by the South Carolina’s highest court.

The South Carolina Supreme Court can lift the injunction or allow it to continue while the five-member court hears for the second time whether the new fetal heartbeat law violates the South Carolina Constitution.

In an interview Wednesday with Dr. Tony Beam on his podcast Truth in Politics and Culture,Senator Massey said, “I think we’re going to have a pretty good idea in the next few weeks,” of what to expect from the South Carolina Supreme Court. He said a lower court probably will enjoin or stop the Heartbeat law from taking effect. That injunction can be appealed to the State Supreme Court. “I suspect what’s going to happen is that within the next few weeks, you’re going to get a ruling from the [State] Supreme Court on the injunction as to whether to maintain the injunction,” while the law is challenged or to allow the law to take effect.

Senator Massey noted that while there is no “right to privacy” in the U.S. Constitution, the South Carolina Constitution has an explicit right to privacy, but he said emphatically, it has “absolutely nothing to do with abortion.” The amendment was added to the state constitution in the early 1970s before the lethal 1973 Roe v. Wade U.S. Supreme decision that was overturned on June 24, 2022. The South Carolina privacy clause was intended to protect individuals from government overreach into private bank records, phone records, and other privacy issues unrelated to abortion.

The South Carolina Senate gave its final approval to the Fetal Heartbeat and Protection Act (S474) on Tuesday. By a vote of 27-19, the Senate agreed with changes the House of Representatives made last Wednesday, May 17, to strengthen the language that protects most unborn children from abortion once the heartbeat can be detected.

The Fetal Heartbeat Act (S474) is the first pro-life law passed in South Carolina since the United State Supreme Court overturned Roe v. Wade on June 24, 2022, in what is known as the Dobbs v. Jackson decision. The high court found there is no right to abortion in the U.S. Constitution and said it is up to the individual states to decide abortion laws.

If it withstands the legal challenge, the new South Carolina law could save hundreds of unborn babies’ lives every month and stop most out-of-state abortion traffic currently flooding into South Carolina. Georgia and Florida both have enacted fetal heartbeat protection laws. North Carolina limits abortions at 12 weeks gestational age but has a 72-hour waiting period. South Carolina has a 24-hour waiting period between the time a woman schedules an abortion and the procedure can be performed.

In January, the South Carolina Supreme Court struck down the 2021 law by a 3-2 vote that concluded the 2021 heartbeat law violated the South Carolina Constitution’s right to privacy clause. Three factors have changed since that decision.

The U.S. Supreme Court overturned Roe on June 24, 2024. The make-up of the South Carolina Supreme Court has changed with the retirement of a pro-abortion justice. The new Fetal Heartbeat law (S474) was written to address the issue raised by the South Carolina Supreme Court about the 2021 law.

Categories: State Legislation