The South Carolina Supreme Court yesterday ruled that the right to privacy protected by the state's constitution includes a right to abortion. The court concluded that a 2021 law prohibiting abortion after fetal cardiac activity can be detected, which typically happens around the sixth week of pregnancy, violates that right.
"We hold that the decision to terminate a pregnancy rests upon the utmost personal and private considerations imaginable, and implicates a woman's right to privacy," Justice Kaye Hearn writes in the lead opinion. "While this right is not absolute, and must be balanced against the State's interest in protecting unborn life, this Act, which severely limits—and in many instances completely forecloses—abortion, is an unreasonable restriction upon a woman's right to privacy and is therefore unconstitutional."
The 3–2 decision is a striking reminder that the U.S. Supreme Court's June 2022 repudiation of a right to abortion under the U.S. Constitution was just the beginning of a legal struggle that will play out across the country. That struggle involves not just legislative decisions about whether and how to regulate abortion but also judicial decisions about how much leeway legislators have in making those choices. The South Carolina ruling shows that litigation aimed at vindicating a right to abortion under state constitutions can succeed even in conservative states where anti-abortion sentiment is strong.
South Carolina is one of 10 states with constitutions that, unlike the U.S. Constitution, explicitly protect a right to privacy. Article I, Section 10 of the South Carolina Constitution says "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." The prohibition of "unreasonable searches and seizures," which tracks with the Fourth Amendment to the U.S. Constitution, has been part of the South Carolina Constitution since the 19th century. The reference to "unreasonable invasions of privacy," which goes beyond the Fourth Amendment's protections, was approved by voters in 1971.
The West Committee, which recommended that language, was primarily concerned about electronic surveillance and said nothing about bodily autonomy, let alone abortion. But in the 1993 case Singleton v. State, the South Carolina Supreme Court held that forcing a prisoner to take medication aimed at making him competent for execution would be an unreasonable invasion of privacy. Singleton cited a 1992 case in which the Louisiana Supreme Court said that state's constitutional right to privacy included "the right to decide what is to be done medically with one's brain and body." The South Carolina Supreme Court adopted the logic of the Louisiana decision, noting that the two states' privacy provisions were "strikingly similar."
In defending South Carolina's Fetal Heartbeat and Protection From Abortion Act, the state argued that the privacy clause should be restricted to the context of searches and seizures. But Hearn says that reading would render the 1971 amendment superfluous. The state also argued that the privacy clause should be limited to the concerns expressed by the West Committee. But Hearn says the South Carolina Supreme Court rejected that argument in the 2001 case State v. Forrester.
"It is important to note that committee minutes will not be controlling of the intent behind, or interpretation of, our state constitution," the court said in Forrester. It conceded that "the drafters of our state constitution's right to privacy provision were principally concerned with the emergence of new electronic technologies that increased the government's ability to conduct searches." But it added that "the committee also recognized that the provision would have an impact beyond just the area of electronic surveillance." A member of the committee said, "I think this is an area that, really, should develop and should not be confined to the intent of those who sit around this table."
The 1971 amendment was approved two years before Roe v. Wade, the decision recognizing a federal right to abortion that the U.S. Supreme Court overturned last year. But in the 1965 case Griswold v. Connecticut, the Court had upheld a federal right to "marital privacy" that it said precluded state contraception bans. "There can be no doubt that the authors of [South Carolina's privacy clause] were aware of Griswold and its use of the right to privacy," Hearn writes. "Indeed, the Griswold decision was contained in an article that staff presented to the West Committee."
In any event, Hearn says, the meaning of South Carolina's privacy clause does not begin and end with what the West Committee thought it was doing. "A careful and complete consideration of the West Committee's work…yields evidence supporting every possible competing position," she writes. She thinks that "leads inescapably to the conclusion that the West Committee's work, while it has been useful to us in other cases, is irrelevant to this case."
Hearn notes that South Carolina was slow to recognize women's rights and that the West Committee was "initially composed of nine men and not a single woman." In 1966, when the West Committee "began discussing whether to add a state constitutional privacy amendment," she writes, "the General Assembly had neither permitted women to serve on juries in this state nor ratified the Nineteenth Amendment. Given this historical backdrop, we decline to limit our review of article I, section 10 to what the West Committee members may have thought at the time."
Hearn notes decisions in which the supreme courts of Alaska, Florida, Montana, and Tennessee concluded that access to abortion was protected by explicit guarantees of a right to privacy in those states' constitutions. (The Tennessee decision was later overturned by a voter-approved constitutional amendment.) "We are persuaded by the logic replete in the opinions we have surveyed that few decisions in life are more private than the decision whether to terminate a pregnancy," Hearn writes. "Our privacy right must be implicated by restrictions on that decision."
Applying strict scrutiny to the Fetal Heartbeat Act, Hearn concludes that the state's interest in protecting maternal and fetal health cannot justify a law that prohibits most abortions. "Women typically do not realize they are pregnant until around six weeks, precisely when the Act bans this medical procedure," she writes.
Although the Fetal Heartbeat Act pays lip service to "informed choice," Hearn says, "it is impossible to conclude that the average woman who determines she is pregnant at just over five weeks has sufficient time to weigh her options, schedule an appointment at one of the three clinics in the state, and comply with the mandatory waiting periods before having an abortion." Hence "in reality, there is no 'choice' at all."
In a concurring opinion, Chief Justice Donald Beatty agrees that South Carolina's abortion ban violates the state constitution's privacy clause. "Privacy has no meaning if we fail to limit how closely the state may regulate our personal, medical, intimate, and moral decisions," Beatty writes. He adds that, in his view, the ban also "denies state constitutional rights to equal protection, procedural due process, and substantive due process."
In a separate concurring opinion, Justice John Few says the constitutionality of the Fetal Heartbeat Act hinges on "one particular factual question" that the legislature failed to address: "Can a pregnant woman even know she is pregnant in time to engage in a meaningful decision-making process and—if her choice is to not continue the pregnancy—make the necessary arrangements to carry out an abortion?" 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," Few says, "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."
Writing in dissent, Justice George James says the privacy clause "provides citizens with heightened Fourth Amendment protections, especially protection from unreasonable law enforcement use of electronic devices to search and seize information and communications." But "it goes no further," he says, and Singleton was mistaken in concluding otherwise.
In a separate dissent, Justice John Kittredge deems James' position "defensible" but does not join him in arguing that Singleton should be overturned. Kittredge concedes that "our case law has not consistently interpreted the privacy provision so narrowly as to preclude application beyond the search and seizure context." But he emphasizes that "we have never been asked to consider whether the privacy provision includes a right to abortion."
Kittredge says "the ambiguous phrase 'unreasonable invasions of privacy'" should be understood "in the manner in which its constitutional framers intended it to be read." He notes that "the matter of abortion was never discussed or even mentioned by the West Committee." The committee instead focused on "protection of personal information, circumstances that would allow law enforcement access to such information, probable cause, and search warrants." In short, Kittredge says, "none of the amendment's framers ever intended the privacy provision to affect the matter of abortion or the state's longstanding policy of regulating abortion."
What about the voters who approved the amendment? "The privacy-provision amendment was referenced by the legislature on the ballot as merely 'searches and seizures,'" Kittredge notes. "This characterization as 'searches and seizures' refutes any suggestion that the voters had any reason to believe that the amendment to the searches and seizures clause included a right to abortion."
Unlike the majority, Kittredge thinks that context is dispositive in determining whether the constitutional right to privacy includes a right to abortion. He calls the majority's dismissal of the evidence concerning the West Committee's intentions "a stunning departure from settled law."
If the issue is whether the people who wrote and approved the 1971 amendment would have imagined that it protected a right to abortion, Kittredge has the better of this argument. The majority instead focuses on the broad wording of the privacy clause, which can be read to protect all manner of private decisions from government interference. Although that understanding of privacy sounds good from a libertarian perspective, Kittredge warns that it invites judges to replace constitutional interpretation with their own policy preferences.
Kittredge thinks "no rational person" would argue that "the State does not have the authority" to criminalize "drug trafficking," which he puts in the same category as "assault, rape, theft, [and] child abuse." In those areas, he says, "there is not the slightest prospect that a court would contravene the will of the people, as codified by their elected representatives, because the law amounts to an invasion of privacy." He adds that "the same could be said of many other actions that may be the subject of differing viewpoints, including bigamy, prostitution, gambling, and assisted suicide."
While "a state may criminalize such conduct or legislatively permit it subject to
regulations and restrictions," Kittredge says, "no person has a constitutional right to engage in such conduct." Is abortion different in that respect? The South Carolina Supreme Court has given its answer, and courts in other states are considering the same question.