Justice Kittredge Invokes Dred Scott, Plessy, Korematsu Cases During Fetal Heartbeat Legal Challenge in South Carolina Supreme Court

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

COLUMBIA, S.C. (Tuesday, June 27, 2023) – The five South Carolina Supreme Court justices, one of them newly elected, heard oral arguments in the abortion industry’s challenge to the Fetal Heartbeat and Protection from Abortion Act, a revised law similar to the law the court struck down in January.

The current law, S474, which Gov. Henry McMaster signed May 25, was immediately challenged in court by Planned Parenthood and other abortion businesses operating in South Carolina. One argument the attorney for Planned Parenthood made was that the new Fetal Heartbeat law is essentially no different from the law the court struck down by a 3-2 opinion just five months ago; therefore, the new law also should be overturned.

Justice John Kittredge, who wrote one of two dissenting opinions in January, forcefully disagreed saying, “We could never have a situation where a precedent of this court ties our hands indefinitely. That would infringe upon the plenary authority of the General Assembly to make policy decisions for us to revisit.”

He emphasized his point by referring to three egregious former U.S. Supreme Court cases that upheld slavery, segregation, and internment of Japanese citizens during World War II. “If we went back in history and looked at Dred Scott, Plessy v. Ferguson, and Korematsu, gosh, don’t we wish those had been overruled before the sunset those days?”

Another point hotly debated during arguments was how soon a woman knows she is pregnant. Assistant deputy Solicitor General Thomas Hydrick said, “Women can know as soon as seven to 10 days after conception” and he quoted abortion data from the Centers from Disease Control (CDC) documenting that 45 percent of all abortions in the United States occur by the sixth week of pregnancy. Pro-abortion Chief Justice Donald Beatty disagreed saying there is not “one shred of evidence” in the record to support the argument. “Forty-five percent” he said, “isn’t 51 percent.”

The hearing lasted approximately an hour and fifteen minutes and can be viewed here or below.

The court did not give any indication of when it might reach a decision. Meanwhile, abortions remain legal in South Carolina up to 20 weeks post fertilization. The Palmetto State is now the abortion destination state of the Southeast because Florida, Georgia, and North Carolina have laws that protect unborn children at earlier stages of development. Florida and Georgia protect the unborn when the fetal heartbeat can be detected. North Carolina has a three-day waiting period before an abortion can be performed.