The Volokh Conspiracy

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South Carolina S. Ct. Holds: State Constitution Protects Abortion Rights


The case is today's Planned Parenthood South Atlantic v. State; the lead opinion is written by Justice Kaye Hearn and joined by Chief Justice Donald Beatty. Justice John Cannon Few concurs in the judgment, and Justices John Kittredge and George James, Jr. dissent.

A few short excerpts, from Justice Hearn's lead opinion:

We hold that our state constitutional right to privacy extends to a woman's decision to have an abortion. 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.

From Chief Justice Beatty's concurring opinion:

I believe the Act is also void ab initio and denies state constitutional rights to equal protection, procedural due process, and substantive due process.

From Justice Few's concurrence in the judgment:

(1) [T]he constitutionality of the Fetal Heartbeat Act turns on one particular factual question {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?}, and (2) the General Assembly's failure even to consider this necessary factual question was arbitrary and renders the Fetal Heartbeat Act unconstitutional.

From Justice Kittredge's dissent:

I … interpret the ambiguous phrase "unreasonable invasions of privacy" in the manner in which its constitutional framers intended it to be read. In doing so, I conclude the Act does not violate the South Carolina Constitution.

And from Justice James's dissent:

Bodily autonomy is an intensely personal issue for South Carolinians and justifiably so. In particular, a woman's right to have an abortion is a subject of great debate and differing personal opinions. These personal opinions are deserving of consideration and understanding. However, when I put aside any personal preferences and review the issue under South Carolina law, I conclude a citizen's right to be free from unreasonable invasions of privacy does not extend beyond the context of searches and seizures….