Rarely is it reported that an all-male court decided Roe v. Wade, but the sex of the justices was the main media takeaway from the South Carolina Supreme Court’s ruling in favor of the state’s fetal heartbeat law.
Multiple mainstream outlets, including The Associated Press, NBC, PBS NewsHour, Axios and The New York Times, emphasized that the state’s all-male court upheld the measure signed into law in May by Republican Gov. Henry McMaster.
“South Carolina’s new all-male highest court reverses course on abortion, upholding strict 6-week ban,” said Politico in a Wednesday post on X.
Posted ProPublica: “Today, South Carolina’s all-male Supreme Court upheld the state’s 6-week abortion ban.”
The AP reported: “The continued erosion of legal abortion access across the U.S. South comes after Republican state lawmakers replaced the lone woman on the court, Justice Kaye Hearn, who reached the state’s mandatory retirement age.”
Pro-life advocates were quick to point out that there were no female justices on the U.S. Supreme Court in 1973 when it legalized abortion nationwide in its 7-2 decision in Roe v. Wade.
“Way to go South Carolina! Keep on protecting Life!” posted the Radiance Foundation. “Funny how the @AP is feigning outrage over all-male justices making a decision on abortion. They had no problem with 7 male #SCOTUS justices giving us the violence of #Roe.”
The conservative blog Legal Insurrection listed the all-male references by media outlets and asked, “WHY is that important?”
“Oh, yeah. The legal reasoning behind the decision is sound. It was the correct decision. But the media and left have to keep the outrage,” said Legal Insurrection commentator Mary Chastain. “It just so happens the South Carolina Supreme Court consists of only males.”
She added: “Um, an all-male SCOTUS ruled in favor of Roe v. Wade.”
Way to go South Carolina! Keep on protecting Life! Funny how the @AP is feigning outrage over all-male justices making a decision on abortion. They had no problem with 7 male #SCOTUS</ a> justices giving us the violence of #Roe. #6weekabortionban https://t.co/9PDMLO37BN</ p>— Radiance Foundation (@lifehaspurpose) August 23, 2023
Justice Hearn, who retired last year at age 72, wrote the 3-2 majority opinion striking down the state’s 2021 fetal-heartbeat law, deciding that it was “an unreasonable restriction upon a woman’s right to privacy, and is therefore unconstitutional.”
On Wednesday, however, South Carolina Justice John Kittredge, writing for the 4-1 majority, noted that the state Legislature reacted to the decision by revising the fetal-heartbeat bill and passing an updated version this year.
Planned Parenthood, which led the legal challenge, argued that the court should defer to precedent, but Justice Kittredge said the previous decision “has no application here, for the 2023 act is materially different from the 2021 act.”
He cited the Legislature’s emphasis in the 2023 bill on the state’s “compelling interest to protect the life of unborn children” and deletion of the 2021 measure’s reference to “informed maternal choice.”
“This new balance struck in the 2023 act between the competing interests of the mother and unborn child was combined with the Legislature’s new focus on contraceptives and early pregnancy testing, as well as a repeal of the statutes that codified the Roe v. Wade trimester framework,” Justice Kittredge said in the ruling.
Judge Gary Hill replaced Justice Hearn in February, making South Carolina the only state in the nation without a woman on its Supreme Court.
Justice Harry Blackmun wrote Roe’s majority opinion. He was joined by Chief Justice Warren Burger and Justices Potter Stewart, William J. Brennan Jr., William O. Douglas, Thurgood Marshall and Lewis F. Powell Jr. Dissenting were Justices William Rehnquist and Byron White.
The first woman named to the Supreme Court was Sandra Day O’Conner, appointed by President Ronald Reagan in 1981.
• Valerie Richardson can be reached at vrichardson@washingtontimes.com.
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