Kaye Hearn, a justice on South Carolina’s Supreme Court, wrote the majority opinion this month that struck down the state’s six-week abortion ban.
Now, she’s retiring, and state legislators are preparing to elect her successor — a move that will most likely leave the court without a female justice for the first time in 35 years.
The prospect troubles Hearn, who became the second woman to serve on South Carolina’s top court after she was elected in 2009.
“I have always felt that it’s important for both lawyers and litigants to look up on the bench and see someone that looks like them,” Hearn said in a phone interview. “I do think it’s concerning.”
Her departure in the coming months — mandated by South Carolina law now that she’s 72 — is occurring at a time when state supreme courts across the country are playing pivotal roles in the fate of abortion rights. When the U.S. Supreme Court overturned Roe v. Wade, dismantling the constitutional right to an abortion, regulation of the procedure was sent back to the states. In the past year, justices in Mississippi and Georgia have been among those who have been asked to weigh whether laws widely banning or restricting abortion in their states should stand.
Hearn declined to comment on the 3-2 decision in South Carolina, which determined that the state’s six-week abortion ban was unconstitutional because it violated the right to privacy.
Legislators will vote on Hearn’s replacement on Feb. 1. Two women, Court of Appeals Judges Stephanie McDonald and Aphrodite Konduros, were initially in the running for Hearn’s seat but withdrew Tuesday. Their departures left state appeals Judge Gary Hill as the only candidate remaining.
“Judge Konduros and Judge McDonald are not only accomplished colleagues on the court of appeals, they are fine people and friends for whom I have great respect,” Hill said in a statement. “I am honored and humbled by the tremendous support of the legislature.”
McDonald and Konduros did not immediately respond to requests for comment.
The court’s recent ruling striking down the abortion ban shapes at least some legislators’ views of electing a new justice. State Sen. Josh Kimbrell, a Republican, told NBC affiliate WYFF of Greenville that the ruling “changed the entire ballgame.”
Prominent Republican leaders in the state had criticized the abortion decision Hearn wrote. Gov. Henry McMaster said in a statement shortly afterward that the court had “exceeded its authority.”
On Wednesday, Hearn emphasized her belief that all three candidates for her seat were “eminently qualified,” calling them friends. And she said she supports South Carolina’s system for tapping candidates for the state Supreme Court, in which a 10-person commission made up of legislators and the general public screens candidates before it nominates up to three applicants, who are then voted on by the Legislature.
But she recognizes the court is in a transition that could make it less reflective of the populace it serves. Chief Justice Donald Beatty, the only Black justice, will reach retirement age next year, The Post and Courier of Charleston reported. He did not immediately respond to requests for comment.
“I believe that diversity on the bench gives the public more confidence in the system,” Hearn said.
Once Hearn finishes work on her final cases in the coming months, South Carolina is expected to become one of the only states to have all-male top courts. (The Oklahoma Court of Criminal Appeals, the state’s highest court for criminal cases, also has an all-male bench; the Oklahoma Supreme Court, which hears civil cases, has both female and male justices.)
As of May, every state’s Supreme Court had at least one female justice, although nine of those states, including South Carolina, had only one, according to a report from the Brennan Center for Justice, a research and policy institute advocating for judicial reforms.
Meliah Bowers Jefferson, who clerked for Chief Justice Jean H. Toal, the first woman on South Carolina’s high court, told WYFF that many qualified women could have been elected to Hearn’s seat.
“I think for us to preserve trust and for us to really believe in our judicial system, it is important for people to be able to see themselves in the system by which they’re being judged,” said Jefferson, who now works in private practice.
Hearn said she is fond of her male colleagues, and she credits the late Justice Julius B. Ness with helping her see a pathway to the bench. She thinks there is truth to varying quotations attributed to U.S. Supreme Court Justice Sandra Day O’Connor, about “a wise old woman and a wise old man” reaching “the same conclusion.”
“But we still all bring to the bench our particular life experiences, education, cultural differences, and that’s important,” Hearn said. “It’s really important for the process.”
Hearn, the child of a homemaker and a television repairman, did not brush shoulders with lawyers growing up in Pennsylvania.
But as she became aware of issues of inequity, including the gender pay gap, she decided to go to law school. It was the 1970s, and the Equal Rights Amendment was on the table. Activists were wearing buttons emblazoned with “59” to call attention to the fact that women earned 59 cents for every $1 men earned. Hearn still remembers the day one of those buttons was pinned on her at a women’s conference in Washington, D.C.
When Hearn entered law school in 1974 at the University of South Carolina, it was less than a decade after the state had begun allowing women to serve on state juries. She says that women were only a fifth of those enrolled.
Hearn remembers watching Toal, then a young South Carolina legislator, a few years later fiercely advocate for passage of the Equal Rights Amendment in the state House. At the time, South Carolina was among the holdout states that had not ratified the amendment, which would have added protections to the U.S. Constitution banning discrimination on the basis of sex. (The amendment has never been ratified.)
In 1988, Toal was elected to the South Carolina Supreme Court. Hearn, who was elected to the state’s Court of Appeals in 1995, joined her on the bench in 2010.
“When I was first elected, we had two women,” she said. “Now, we’re backing up.”
“I thought that we were past the issues that women would have a seat at the table,” Hearn added. “Women deserve to have a seat at the table, as do minorities — African Americans. I thought we were past that. Apparently, in South Carolina, we’re not.”