The South Carolina Supreme Court on Thursday narrowly decided that the state’s ban on most abortions after six weeks violated the state constitution.
Since the U.S. Supreme Court in June correctly held that the U.S. Constitution “does not confer a right to abortion,” attacks on legal protection for the unborn have shifted to state courts and state constitutions.
The decision in Planned Parenthood South Atlantic v. South Carolina is the first on this front.
In 2021, the South Carolina Legislature enacted the Fetal Heartbeat and Protection From Abortion Act. It requires physicians to scan for fetal cardiac activity and, if detected, an abortion may be performed only in cases of rape, incest, to protect the mother’s health, or fetal anomaly.
A Planned Parenthood affiliate and two abortionists challenged the law, arguing that it violated Article I, Section 10 of the South Carolina Constitution, which provides: “The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures and unreasonable invasions of privacy shall not be violated.”
In this case, each of the five justices—three in the majority, two in dissent—wrote a separate opinion explaining his or her position. Justice Kaye Hearn, joined by Chief Justice Donald Beatty, focused only on the final phrase about “unreasonable invasions of privacy,” writing that the right to privacy should be interpreted in light of “everything that has transpired since the amendment was adopted.”
Citing privacy decisions by the U.S. Supreme Court and several other state high courts, Hearn wrote that “few decisions in life are more private than the decision whether to terminate a pregnancy.”
Hearn applied the “strict scrutiny” standard, which requires that a law involving a fundamental right be narrowly tailored to serve a compelling governmental purpose. She concluded that the state’s interest in fetal health was inadequate because in early pregnancy “the fetus cannot be considered its own legal entity.”
Similarly, she wrote, the “fetus’s interest” is not compelling before viability, when the child might survive outside of the womb.
Beatty also wrote a separate concurring opinion and, while warning against “language that is biased,” stated flatly that, in the first six weeks of pregnancy, “[w]hat exists … is an … amorphous collection of cells.”
He not only agreed with Hearn that the abortion ban violated the right to privacy, but also argued that it violated several other constitutional rights. Allowing abortions only for “women who are victims of rape and incest and those who suffer grave health emergencies,” he wrote, violates the right to equal protection.
The statute’s language, Beatty stated, violated the right to due process because it is “does not establish clear parameters of proscribed conduct that will enable reasonable compliance.” Finally, he stated that the statute violated pregnant women’s rights to “life and liberty,” even under the most lenient legal standard.
Justice John Few acknowledged the obvious: “As our five separate opinions indicate, we do not agree on the answers to the legal questions we confront.”
Disagreeing with Beatty, he rejected the equal protection and due process arguments against the statute as “without merit.” He also appeared to distance himself from Beatty’s dismissive description of the unborn, instead recognizing the state’s “important and legitimate interest in protecting the lives of unborn children by regulating a woman’s opportunity to have an abortion.”
Few described the right to privacy as applying to “the full panoply of privacy rights Americans have come to enjoy over the history of our nation.”
In his view, that includes the right to make informed choices. Except in the specific circumstances, however, the abortion ban takes away any choice after a fetal heartbeat can be detected.
Few explained that the Legislature never considered that issue, or the fact that women may not even know they are pregnant in the first several weeks. This failure, resulting in the loss of a real opportunity for “a meaningful decision-making process” makes the statute “arbitrary” and, therefore, in his view, unconstitutional.
Justice John Kittredge dissented, emphasizing the difference between abortion and other applications of the right to privacy.
“What makes abortion different,” Kittredge wrote, “is the presence of the unborn child.” Looking at the phrase “unreasonable invasions of privacy” and acknowledging that privacy is a natural right, he also “cautioned restraint in the recognition of unexpressed rights deemed fundamental in a constitutional sense.”
Once in that “fundamental” category, “society through its citizenry loses the ability to debate the issue and effect change through the democratic and legislative process.”
In his view, the majority crossed that line by “legislating based on personal policy preferences.”
Justice George James also dissented. “When I put aside any personal preferences and review the issue under South Carolina law,” he wrote, “I conclude a citizen’s right to be free from unreasonable invasions of privacy does not extend beyond the context of searches and seizures.”
In other words, he viewed together what other justices separated, the language about searches and the language about invasions of privacy. In that more focused context, James concluded that the right to privacy does not include a right to abortion.
This is the first of what will likely be many decisions by state courts about whether their state constitutions allow the legislature to restrict or prohibit abortion.
In light of this decision, however, pro-life South Carolinians have fewer opportunities to stand up for the unborn than in most other states. South Carolina is one of only two states in which the legislature alone chooses state Supreme Court justices. And it is one of the 25 states in which only the legislature can propose constitutional amendments.
The effort to protect the unborn, therefore, will likely focus even more intensely on the Legislature.
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