The South Carolina Supreme Court on Tuesday heard oral arguments in the lawsuit filed by Planned Parenthood South Atlantic against the abortion restrictions that were enacted in May.

Planned Parenthood filed for an injunction against the legislation less than 24 hours after it was signed by Gov. Henry McMaster (R-SC), arguing that the bill was not only an unconstitutional invasion of privacy but also identical to a six-week abortion ban implemented in 2021, before the Dobbs v. Jackson ruling, that was overturned by the state Supreme Court. The state maintains that the 2023 act is substantively different from the prior legislation and regulating abortion is a “compelling interest.”

There are three key takeaways from the oral arguments.

The importance of precedent will be the deciding factor in the case

The case could hinge on the difference in the legislative language used in the new law versus the overturned 2021 law.

Planned Parenthood argues that the 2023 law is functionally the same, “regardless of the language they use,” as the 2021 six-week ban that was struck down by the court for not being a reasonable standard.

The state contends that the new law is substantively different from the prior legislation in part because it defines a pregnancy at the detection of fetal cardiac activity, not at six weeks gestation. The state maintains that because most abortions in the United States are performed before six weeks that it is scientifically possible for women to know that they are pregnant and take steps to legally end their pregnancy within the state’s six-week window.

The court spent a significant amount of the state’s 30 minutes for argumentation and the 10-minute rebuttal period arguing whether or not the detection of a fetal heartbeat or cardiac activity can be determined by six weeks, weighing the limited scientific evidence that was submitted into evidence by both parties.

Even if the 2023 act and the 2021 act are not substantively different, however, Justice John Kittredge said that Planned Parenthood could not rely solely upon the overturning of the former law as the reason to overturn the latter.

Stare decisis, or the supremacy of precedent, is not the “end all be all,” according to Kittredge, who cited Dred Scott v. Stanford and Korematsu v. United States as examples of bad precedent.

“We could never have a situation [where] one decision ties our hands indefinitely,” Kittredge said.

Chief Justice Donald Beatty questioned the state about the rape exception

Toward the end of the state’s case, the state argued that protecting an unborn child is the “most paramount interest” of the state and that doing so is compelling even before fetal viability.

Beatty responded to this statement by asking about the rape and incest exceptions included by the legislature, pointedly questioning whether or not the state had a “compelling interest” in protecting the lives of children conceived by rape.

In the case of pregnancy through police-documented rape or incest, the legislation allows for an abortion up to 12 weeks gestation.

The state’s counsel responded to Beatty by saying that the bill reflects a “legislative compromise” on a sensitive topic, but “the interest is still compelling” despite the fact that certain circumstances require different treatment.

Beatty interrupted the state’s counsel by asking whether the “emotional trauma” of an “unwanted pregnancy” ought not to be treated as an instance of necessary compromise by the state in the same way that the emotional trauma of a rape victim.

In response, the state’s counsel stressed the difference between “unwanted intercourse” and “unwanted pregnancy” after consensual sex. “Those are different,” the state argued.

Justice George James Jr. questioned Planned Parenthood about reasonable abortion limits

James asked the first question of Planned Parenthood’s representative as to whether the state has a compelling interest in regulating abortion. Although the plaintiff’s counsel equivocated in answering the question, she ultimately acknowledged that the state has some form of legitimate interest in regulating abortion.

Along similar lines, James continued to press the plaintiff that if the state has a legitimate or compelling interest, where should the line be drawn.

James also questioned the plaintiff as to whether the state’s encouragement of citizens to use contraception and pregnancy testing would expand the definition of “pro-choice” to go beyond conception and implantation.

Planned Parenthood’s representative argued that the wider use of contraception and pregnancy testing was “not an expanded interest in choice” but was instead “lulling women into a false sense of security” because of possible inaccuracies in testing and contraception failures.

Planned Parenthood also argued that the determinations of the state were “arbitrary policy decisions” rather than decisions based upon consultation with medical expertise.

Justice D. Garrison Hill, who made very few statements during the entire proceeding, responded to this by noting that most, if not all, litigation on abortion is “inherently arbitrary.”