COLUMBIA, S.C. — The South Carolina Supreme Court struck down Thursday a ban on abortion after cardiac activity is detected — typically around six weeks — ruling the restriction violates the state constitution’s right to privacy.
The 3-2 decision comes nearly two years after Republican Gov. Henry McMaster signed the measure into law. The ban, which included exceptions for pregnancies caused by rape or incest or pregnancies that endangered the patient’s life, drew lawsuits almost immediately. Since then, legal challenges have made their way through both state and federal courts.
“The State unquestionably has the authority to limit the right of privacy that protects women from state interference with her decision, but any such limitation must be reasonable and it must be meaningful in that the time frames imposed must afford a woman sufficient time to determine she is pregnant and to take reasonable steps to terminate that pregnancy. Six weeks is, quite simply, not a reasonable period of time for these two things to occur, and therefore the Act violates our state Constitution’s prohibition against unreasonable invasions of privacy,” Justice Kaye Hearn wrote in the majority opinion.
Currently, South Carolina bars most abortions at 20 weeks.
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On Twitter, White House spokesperson Karine Jean-Pierre applauded the justices’ clampdown “on the state’s extreme and dangerous abortion ban.”
“Women should be able to make their own decisions about their bodies,” Jean-Pierre added.
Varying orders have given the law’s supporters and opponents both cause for celebration and dismay. Those seeking abortions in the state have seen the legal window expand to the previous limit of 20 weeks before returning to latest restrictions and back again.
Federal courts had previously suspended the law. But the U.S. Supreme Court’s overturning of Roe v. Wade allowed the restrictions to take place — for just a brief period. The state Supreme Court temporarily blocked it this past August as the justices considered a new challenge.
The high court’s momentous decision in Dobbs v. Jackson Women’s Health Organization set off a flurry of activity at the state level. Republican-dominated states moved forward with new restrictions while abortion rights’ advocates sought additional safeguards. With federal abortion protections gone, Planned Parenthood South Atlantic sued in July under the South Carolina constitution’s right to privacy. Meanwhile, other states have seen challenges to restrictions as a matter of religious freedom.
In South Carolina, lawyers representing the state Legislature have argued that the right to privacy should be interpreted narrowly. During oral arguments this past October, they argued historical context suggests lawmakers intended to protect against searches and seizures when they ratified the right in 1971. Planned Parenthood attorneys representing the challengers have said the right to privacy encompasses abortion. They argued previous state Supreme Court decisions already extended the right to bodily autonomy.
Chief Justice Donald Beatty and Justice John Cannon Few joined Hearn in the majority. Justice George James, Jr., wrote in a dissenting opinion that the right to privacy protected only against searches and seizures. Justice John Kittredge wrote separately that the state constitution protects privacy rights beyond searches and seizures but did not apply in this case.
While Few said a restriction on abortion’s timing is “clearly reasonable,” he added that the law in question gave those considering it “no choice at all.”
“Thus, if a substantial percentage of pregnant women cannot know of their pregnancy in time to have meaningful discussions, engage in sufficient deliberation and prayer, and then make timely arrangements to carry out an abortion, then I cannot envision a winning argument that meaningful choice exists or that the denial of that choice is not an unreasonable invasion of privacy,” Few wrote in a concurring opinion.
Multiple justices emphasized that Thursday’s ruling confronted only legal questions and rejected the political aspects of the debate.
The justices’ limited ruling left the door open for future changes. The state House and Senate failed to agree on additional restrictions during this past summer’s special session on abortion. Still, a small but growing group of conservative lawmakers have vowed to push that envelope once more this legislative session — despite some Republican leaders’ previous insistence no agreement is possible.
In a statement to The Associated Press, South Carolina Democratic Party Chairman Trav Robertson applauded the ruling Thursday, which he said amounted to “a voice of reason and sanity to temper the Republicans’ legislative actions to strip rights away from women and doctors.”
Republican South Carolina House Speaker G. Murrell Smith, Jr., wrote in a series of tweets that the state justices “followed the path of the U.S. Supreme Court in Roe v. Wade by creating a constitutional right to an abortion where none exists.” Smith echoed Justice Kittredge in adding that the decision failed to respect the separation of powers.
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In a dissenting opinion, Kittredge warned against “a judicial resolution of this policy dispute” in lieu of a “proper constitutional challenge.”
“Our legislature has made a policy determination regulating abortions in South Carolina. The legislative policy determination, as contained in the Act, gives priority to protecting the life of the unborn,” Kittredge wrote.
South Carolina Republicans vowed to press forward. Attorney General Alan Wilson said in a statement that his office is reviewing its options. McMaster, who will soon be inaugurated to his final full term, indicated Thursday that a new abortion measure will be a priority when the state Legislature reconvenes next week.
“With this opinion, the Court has clearly exceeded its authority,” McMaster said in a statement. “The people have spoken through their elected representatives multiple times on this issue. I look forward to working with the General Assembly to correct this error.”
The decision may also boost interest in changing South Carolina’s procedure for electing judges. Lawmakers currently choose nearly all state judges, including Supreme Court justices, after a selection commission screens potential nominees.
In a statement, South Carolina GOP Chairman Drew McKissick called the decision “extremely disappointing and yet another unfortunate example of judicial activism” and said the ruling “goes against the will of the voters in South Carolina and is yet another reminder of the critical need to reform the judicial selection and election process.”
Advocates for abortion access said they would fight future attempts to restrict abortion.
“This is a monumental victory in the movement to protect legal abortion in the South,” Planned Parenthood South Atlantic President Jenny Black said in a statement. “Planned Parenthood South Atlantic and our partners will continue our fight to block any bill that allows politicians to interfere in people’s private health care decisions.”
