♪ opening music ♪ ♪ <Gavin> Welcome to a special This Week in South Carolina.

I'm Gavin Jackson.

On August 23, the South Carolina Supreme Court upheld the state's six week abortion ban law by a vote of four to one.

The law is extremely similar to the one Republican lawmakers passed in 2021, that was rejected by the court in a three to two ruling in January for violating the state's constitutional right to privacy.

but with slight changes, the new law passed in May, and along with a new justice on the Supreme Court, replacing retired Justice Kaye Hearn, the law was upheld.

As such it moved abortion accessibility from 20 weeks to whenever an electrical signal in an embryo representing cardiac activity can be detected, which is as early as six weeks.

This is also a time when many women do not even know that they're pregnant, and appointments at the state's three clinics can have weeks long waiting lists.

The law has limited exceptions for sexual assault victims up to 12 weeks, along with reporting to local law enforcement.

There are also exceptions for the life and health of the mother in fatal fetal anomalies.

The law is a result of the June 24 2022, United States Supreme Court decision on Dobbs versus Jackson Women's Health Organization, which overturned nearly 50 years of abortion precedent, returning the issue of abortion to the states to decide.

So let's jump back to January when abortion access supporters were celebrating outside of the state Supreme Court shortly after the three to two decision throwing out the previous six week law.

>> The court is definitive on the six week ban.

They did not address other future bills that the legislature might present which is why I expect the legislature to test the limits.

At what point will the Supreme Court say well, six weeks is bad but maybe this is okay, because our legislature has never respected the opinions of the Supreme Court.

Even when Roe v Wade was intact, they continued to pass abortion bans.

So I think none of us will be surprised at the battles we face starting next week.

<Gavin> The wheels began moving the first week of the 2023 legislative session to push forward with another abortion ban bill and the topic of judicial reform suddenly became a hot issue.

<Rep.

Murrell Smith> We also will protect life in light of what happened with the Supreme Court last week.

I think you will see us.

We are going to evaluate all options that we may have in dealing with that but you will not see us rush to to process but you will see us make sure that we are we find and settle a process that is compliant with the law but also protects life in South Carolina.

<Gavin> In a rare move, Governor Henry McMaster spent a few moments calling out the Supreme Court during his annual State of the State address in January before the entire legislature, constitutional officers, Cabinet, and Supreme Court Justices.

<Gov.

McMaster> South Carolina is one of two states in which the General Assembly selects the members of the judiciary.

It appears that the confidence in this arrangement is waning.

Too often the people's business is unattended.

Justice delayed is justice denied.

I suggest that our founding fathers prescribed a method for judicial selection that has served our federal government well and with which the public is quite familiar.

Gubernatorial appointment of all judges with the advice and consent of the Senate requires no reinvention of the wheel.

We'll inspire the confidence of our people and will encourage...more excellent attorneys to seek public service.

We should do that.

(applause) Last year, the US Supreme Court ruling in Dobbs against Jackson women's health organization gave us cause for confidence when it recognized that Roe against Wade was egregiously wrong and quote on the day it was decided and that the US Constitution does not prohibit states from regulating or prohibiting abortion.

Unfortunately, the South Carolina Supreme Court delivered a temporary setback earlier this month.

In a three - two decision the Court struck down the Fetal Heartbeat and Protection from Abortion Act.

Our court concluded that it violated a South Carolina constitutional provision that was proposed and adopted before Roe v Wade, at a time when nearly all abortions were illegal in South Carolina.

I say respectively, respectfully, the court's decision is at odds with the law and the facts, and the lead opinions results oriented reasoning threatens to disrupt our constitutional separation of powers.

When I signed the Heartbeat Act into law, I was confident that it was constitutional.

I still am.

Therefore, I will be filing a petition for re-hearing next week along with other state officials, and I remain optimistic that we will prevail in our historic fight to protect and defend the right to and the sanctity of life.

(applause) <Gavin> In an interview on This Week in South Carolina in May, former Justice Kaye Hearn said McMaster's comments about the court were surprising.

<Ret.

Justice Hearn> I did not, you know, I was shocked when the governor as a litigant in a case that was still pending before us and certainly as a lawyer and a former US attorney, he knew better.

I was shocked when he blasted the court.

I've been going to those State of the State addresses since 1995, and it's always been so cordial.

You know, we have so much respect for the General Assembly on the court and so much respect for the governor, and it was very disheartening to see that, that was not reciprocated.

<Gavin> Republicans began on legislation that would appease Justice John Cannon Few, the courts swing vote, but also to elect Hearn's successor.

Justices in South Carolina aren't nominated by the governor or a party leader.

They're not grilled like they are before the United States Senate.

Nor are they elected like in other states.

They're screened by the Judicial Merit Selection Commission, which is made up of five Senate and five House appointees.

Of to three qualified candidates for a variety of judgeships are then passed on to the Republican controlled General Assembly, which then elects judges, Judge Gary Hill became the lone contender for the Supreme Court spot, when his fellow appeals court judges, Aphrodite Konduros, and Stephanie McDonald dropped out of the race.

The result was South Carolina became the only state to have an all male Supreme Court in the nation, a first for the state in 35 years.

>> May I have your attention please.

By a vote of 140 to 8, I hearby declare that David Garrison Hill is duly elected to the South Carolina Supreme Court for the term prescribed by law.

(applause) <Gavin> Your replacement was a man, even though two women were running for that seat.

What were your thoughts on that race?

<Ret.

Justice Hearn> Well, you know, Gary Hill is a wonderful judge.

He writes, as a just-...judge on the Court of Appeals, he... authored some of the most academic opinions I've ever read.

He is...a great candidate, and he is very deserving of being on the Supreme Court.

Having said that, the two women who were running were equally deserving, and perhaps more so in that they had been on the bench longer.

Judge Konduros particularly had... really paid her dues, and Judge McDonald had.

So it was disappointing.

Not that - I'm happy for Gary Hill, and he will be an excellent jurist, but I wish the General Assembly had thought about how important it is to have diversity on the court, because all three of them were very, very qualified.

<Gavin> Do you think that was your understanding pretty much reactionary to that decision dealing with abortion earlier in January?

<Ret.

Justice Hearn> You know, I think it was a perfect storm.

I think there were a lot of things going on.

In the last legislative election.

Many, many more Republicans were elected, and some of them were extremely conservative on many issues and that changed the face of the General Assembly a good little bit.

I'm sure that our Planned Parenthood decision didn't help, but, you know, yes, I authored the lead opinion, but there were two male justices who agreed with me.

So I really regret that, that opinion, would have had any impact on this election, but I do think it played into it, sadly.

<Gavin> ...and you stand by it.

<Ret.

Justice Hearn> Absolutely.

Absolutely.

I mean, if you are going to, if you're going to pass a law, a statute, dealing with...abortion, you need to give women enough time to know that they're pregnant, and six weeks is a joke as every woman, every woman knows, maybe some men don't know that, but every woman knows that.

<Gavin> The same February day as Justice Gary Hill's election, the House Judiciary Committee passed its near total abortion ban bill along party lines before debating it next week in the House.

The Senate itself was in the throes of its debate over its six week bill.

>> The senator from Edgefield certainly made a valid point that this heartbeat bill that has been proposed, in a sense was forced upon us by the actions of the South Carolina Supreme Court when they struck down the previous heartbeat bill, using their interpretation of the word privacy, as the Senator from Edgefield, said, to read into the law 50 years ago, something that no one at the time would have thought that word meant, i.e.

the right to abortion.

<Sen.

Shealy> Did you know I'm tired of being insulted and saying I'm not pro life.

<Sen.

Senn> I am tired of that too, Senator.

I can imagine that, yes, you are, because nobody in here wants a woman to have an abortion.

We just got to give them a chance, and really, what are y'all talking about that we don't have a right to privacy?

Do y'all have a right to privacy?

If men should have a right to privacy, women should have a right to privacy and that's one of the things that Justice...Kittredge said.

He wants to hear more about the health aspect because he does believe that health care should be private to an extent.

We didn't give them anything to weigh those interests with.

<Sen.

Shealy>...I don't... like to have another fellow Senator stand up here and tell me or tell this body call out other senators names and say this is a pro life senator and this is a pro life senator and this is a pro life senator.

There's not a woman in here that's a pro life senator, because I've never hear my name called out, and I probably work harder for children and pro life issues for born children than anybody else in here.

>> You do.

<Sen.

Shealy> I raised $50,000 last night just to help children.

<Sen.

Senn> ...you're gonna get more <Sen.

Shealy>and I'm gonna get more because she just told me I would and so I'll be waiting for your check.

<Sen.

Senn> You'll get it.

<Gavin> The Senate in April narrowly shot down the House's near total abortion ban bill that would outlaw abortions from conception with limited exceptions.

The 22 to 21 vote couldn't break a filibuster launched by the five female senators, and was the third time the chamber voted against such a bill since the fall of Roe.

The three Republican female senators and three Republican male senators joined the Democrats in blocking the needed two thirds majority.

<Sen.

Massey> Senate does not have the votes to pass a ban earlier than six weeks, and so my hope is that the House will accept that and that they will move forward on the heartbeat legislation because it's up to the House now, right.

I mean that...they have the ability to prevent thousands of abortions in South Carolina.

<Gavin> At the end of session on May 11, Sine die, the two chambers were at another stalemate like the one which doomed the passage of a more restrictive bill last fall during a special legislative session.

Since the House and Senate didn't pass a resolution, dictating what they could take up post Sine die, the governor did it for them by issuing a rare executive order calling lawmakers back to Columbia.

<Gov.

McMaster> In addition, the General Assembly must complete the state budget and they must pass legislation that stops our state from becoming a destination for abortions.

Therefore, I'm issuing the following executive order directing the General Assembly to return for a special session to complete the important business at hand.

<reporter> In South Carolina.

the fight to pass a stricter abortion ban is heating up after the state's governor called the legislature back into session.

The State Senate passed a bill in February that would ban abortion after six weeks and that's...frankly before a woman might even know she's pregnant.

The bill is now being debated right now in the Statehouse and Democratic state representatives are trying to stop it.

They are filing more than a 1000 amendments to the legislation to try to slow down debate and delay the vote.

Let's bring in one of the Democratic lawmakers trying to slow this process, if not stop it.

State Representative Beth Bernstein.

State Representative Bernstein, thanks for joining us.

So you and your fellow Democrats have filed a 1000 amendments to this six week abortion ban that passed in the State Senate.

There is a rape and incest exception up to 12 weeks, but we should note you have to have filed a police reporter or get a restraining order.

Do you think that this is going to work?

Are you going to be able to use this delay to convince House Republicans to take a different position or are you just delaying the inevitable do you think?

<Rep Bernstein> Unfortunately, we are delaying the inevitable but I think what's important is we're pretending we are a voice for so many women in the state who don't want this, who want abortion access and who do not want the state to regulate these issues.

..The polling is clear that most South Carolinians more than 78% want abortion access.

So It's unfortunate and the reason these amendments are being filed is so we can have that voice, and so people can understand what we're doing at the Statehouse is we're effectively banning abortion.

<Gavin> the South Carolina House debated for more than 25 hours over two days.

<Rep.

Gilda Cobb-Hunter> My question to Republicans in here is, What are y'all afraid?

Why won't you allow the voters to tell you what you claim from this well, and from that board that they believe?

I would suggest to you that if you found the courage to put this question to the voters, what you will find or would find is the same thing that the ruby red state of Kansas found, and that is in a very Republican controlled state legislature, the voters have a different matter.

What this amendment does is say Republicans, leadership and otherwise Freedom Caucus, any caucus, all of y'all if what you have said from this podium is true, if as you have claimed, you are representing the majority of the voters in South Carolina, okay.

We believe you.

So let the voters tell us that what you say from this well, is indeed what they believe.

<Rep.

Magnuson> So, two things.

First of all, the cost of a human life, the price of a human life, you can't put a number.

The price of a human life is priceless.

Secondly, my question is, is the intent of these amendments to waste taxpayer dollars?

Because that's what I think is really going on here.

950 and some odd, frivolous amendments wasting everybody's time and everybody's money.

So yes, Mr. Speaker, if we pass this amendment, and all of the other democratic amendments, then maybe the intent of the bill is to waste taxpayer dollars.

<Gavin> Greenwood, Republican representative, John McCravy, who held fast to a near total abortion ban bill that failed last year, relented to a six week ban with exceptions.

>> Well, look, you know, we've had a year of debate on this.

The Senate has, I'll try to put as nicely as I can.

The Senate has tried several times, and this last time, I felt like there was a good faith effort to try to pass that bill.

We were within one vote, you know.

So, when you're within one vote, it's worth a try, and so we didn't quite make it this year.

We don't want to adjourn this year.

I think both bodies agree on this.

We don't want to adjourn and become a destination state for abortions in the southeast.

You know, North Carolina, just overrode their governor's veto.

So right now, we're one of the most liberal states in the southeast, when it comes to abortion.

We need to change that, and so this is the best we can get this year.

and that's what we're going to try to do here today.

<Gavin> The House finally passed the six week ban on May 17, by a vote of 82 to 32.

The Senate concurred with the changes days later by a vote of 27 to 19, and the bill was sent to the governor's desk for his signature on May 25.

Planned Parenthood South Atlantic sued over the new law, which was almost immediately blocked in court, where the matter was litigated.

On June 27, the new law went before the state Supreme Court whose future decision would be the law of the land.

<Justice John Cannon Few> ...but there is ...contained in the statements in that act perhaps, an encouragement of our citizens to think more actively about contraceptives?

That's one.

Secondly, there's this somewhat considerable treatment, at least in the briefs, of the idea that couples who are sexually active, should be should be actively thinking about pregnancy testing, as a way of giving the couples more choice.

Is that not a valid notion?

>> So first, your honor, with regard to the contraceptive issue, I think you're absolutely correct, that this is required by the Affordable Care Act that, that is already existing in federal law, and second, that they enacted the same policy.

It's a six week ban, just like SB-1 was goes to the issue that that's, you know, not a separate policy determination that would justify departing from Planned Parenthood, one.

With regard to pregnancy testing what the state is attempting to do here is shift the burden from it to not violate South Carolinians right to privacy to the women of South Carolina to take a pregnancy test every day.

As a practical matter, that is not what women are doing.

People are not sitting around taking a pregnancy test every day.

They have jobs.

They have children.

They have other determinations.

They're not regularly tracking their menstrual cycles, and so that doesn't change anything.

Beyond that, the statement of the sponsoring senators that the other side relies on, those don't go to show how pregnancy tests actually work.

They claim that pregnancy tests are accurate before someone's missed period, but those tests are actually more effective, most effective after a missed period.

<Gavin> On August 23, the all male South Carolina Supreme Court ruled four to one that the six week abortion ban law was now constitutional.

Unlike the previous similar version struck down in January.

The decision was a victory for Republicans who have been pushing for this moment for years.

Senate Majority Leader Shane Massey spoke to reporters via zoom that day.

<Sen.

Massey>...and the work between the House and the Senate, and frankly, the governor being involved in this lays a great advocate and a great supporter for this, but it tells me that the focus that we had on the previous court opinion, in trying to address those concerns, paid off, and that we really did understand, especially Justice Few's concerns, and we tried very hard to address those concerns.

This tells me that we did that, and so yeah, I mean, that, that's, that makes you feel good, you know that you were able to do that, but it was, you know, overall, though, I guess, the thing that I'm most proud about is, this is a big win for life.

It's a big win for life in South Carolina, It's going to have a drastic reduction of abortions from out of staters, but also from those birth control abortions that we saw before, before this happened.

So overall, it's a great win, and for those people who have been advocating on the pro life community for years and decades, this is a big step in the right direction.

(Chanting: "Abortion is a human right") <Gavin> Outside of the Statehouse, the scene was a bit more subdued than the previous summer when Roe was overturned.

Unlike the US Supreme Court decision, the South Carolina Supreme Court decided definitively to uphold the law restricting abortion access from 20 weeks to around six.

<Rep Bernstein> It really wasn't different, and that's what I was really surprised as an attorney, you know, I can't second guess the judiciary on this, but I think I think the decision was flawed.

I think we had precedent, and the bill did not change much.

I know there were some nuances that were made, and some distinguishing factors made between the two opinions, but I think because of the makeup change, there was this new push to get the same legislation passed, maybe tweak a word here or there, and I just want everyone to know this means that for all intents and purposes, we're gonna have a ban of abortions in this state, all over the southeast as well, and so women, particularly in the... southern states are gonna have no options, but to have to travel hundreds and hundreds of miles.

That just saddens me.

<speaker> We have some of the highest rates in the South, especially when Black women are dying in childbirth or their children not making it to one years old.

We have not even done a study on Black women and why they're dying, and meanwhile, they want to take away this decision of abortion, which is horrible.

What are these people thinking about?

<Gavin> It's not clear how much the State House will change as a result.

In fact, it may become even more conservative.

That's what Lexington Republican lawmaker RJ May, Vice Chairman of the House Freedom Caucus recently told me.

<Rep.

RJ May> I think we do have a redder Statehouse at the end of 24, and I think we've seen that in the number of folks who have already announced for their candidacy.

Gustafson has Republican opposition already.

Neal Collins has Republican opposition.

Raye Felder has Republican opposition.

Republican opposition all from the right of where they currently are.

So...we're early in terms of announcements for State House races.

I mean, we're in September, I think you'll see a vast majority of these announcements in, you know, middle to late January, but the fact that we already have, you know, a dozen folks that have at least somewhat publicly said their intentions of running against incumbents and all of them running from the right.

You couple that with perhaps more members of the Freedom Caucus with a smaller majority because we'd probably lose three, four or five seats.

It allows the Freedom Caucus to also have a larger influence on legislation, because as we grow numbers and move the body to the right, and if those numbers shrink, then it's good for the constituents that we serve for the people who are voting in Republican primaries, for the people who actually care about fiscal responsibility.

Look, hopefully we can get to the point where instead of growing government, every year, we actually start to shrink it, and I think our budget grew by 13.1%, this year, not a single dollar cut from any program, and we're all Republicans who run on reducing the size and scope of government, returning more money back to you, but we spend more money every year.

So I do think we see a redder Statehouse because I think a lot of people are gonna face primary challenges from the right.

In fact, the only people who are going to.. face primary challenges from the left are members of the Freedom Caucus.

<Gavin> This Week in South Carolina and South Carolina Public Radio will continue to cover this issue going forward, and you can stay up to date with the latest news by listening to the South Carolina Lede podcast that I host on Tuesdays and Saturdays.

You can subscribe wherever you listen to your favorite podcasts.

For South Carolina ETV, I'm Gavin Jackson.

Be well South Carolina.

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