By Katie Gu
On January 5, the South Carolina Supreme Court permanently struck down Senate Bill 1 (S.B. 1), also known as the Fetal Heartbeat and Protection from Abortion Act, which banned most abortions after the sixth week of pregnancy. The decision was issued just five days before the state’s General Assembly returned for 2023, setting into motion a game of ping pong between the state branches of government in South Carolina’s abortion debates.
The Case
In Planned Parenthood South Atlantic v. State of South Carolina, the state’s highest court ruled 3-2 that S.B. 1 violated the state constitution as an unreasonable invasion of privacy. With this holding, South Carolina joins 10 other states whose high courts have recognized state constitutions as offering broader protections for reproductive rights than the U.S. Constitution.
South Carolina’s privacy right was added to the state constitution in 1971 under Article I, Section 10 (Art I, § 10). Proposed by the West Committee, the provision protects the right of individuals “to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures and unreasonable invasions of privacy shall not be violated.”
Justice Kaye Hearn, the only female justice on South Carolina’s Supreme Court, authored the majority opinion. Hearn began by establishing that the South Carolina Constitution’s privacy protections are not limited, as argued by the State, to searches and seizures under the Fourth Amendment — holding otherwise would render the “unreasonable invasions of privacy” clause meaningless. Next, Hearn held that the state’s privacy protections cannot be limited to the data privacy context, but can also be applied to protect privacy in medical decisions. In tracing the historical development of the right to privacy, from Brandeis & Warren’s The Right to Privacy, to Skinner v. Oklahoma, Griswold v. Connecticut, and Eisenstadt v. Baird, Hearn noted that the authors of Art I, § 10 were aware of extensions of privacy law into areas such as marriage and intimacy.
Hearn’s opinion focused heavily on the holdings of six states with “strikingly similar constitutional privacy protections” applied to protect privacy in medical decisionmaking: Louisiana in State v. Perry; Alaska in Valley Hospital Association v. Mat-Su Coalition for Choice; Florida in In re T.W.; Minnesota in Women State of Minnesota by Doe v. Gomez; Montana in Armstrong v. State; and Tennessee in Planned Parenthood of Middle Tennessee et al. v. Sundquist. Hearn notes how the Sundquist Court’s move to protect abortion access under the Tennessee Constitution’s right to privacy led directly to a state constitutional amendment four years later explicitly stating that “[n]othing in this Constitution secures or protects a right to abortion” (Article I, Section 36). In a notable footnote, Hearn highlights that a request to let South Carolina citizens decide the scope of the state constitution’s privacy language was made on the floor of the state Senate but rejected as being “out of order.” Hearn notes that at least six other states have granted similar requests, including California, Kansas, Kentucky, Michigan, Montana, and Vermont.
After surveying these holdings, Hearn concludes that “few decisions in life are more private than the decision whether to terminate a pregnancy,” and that South Carolina’s privacy rights “must be implicated by restrictions on that decision.” In striking down S.B. 1 as a violation of Art I, § 10, Hearn emphasized the particularly invasive medical privacy implications of a six-week ban, noting that “women typically do not realize they are pregnant until around six weeks, precisely when [S.B. 1 bans abortions.]”
The Reaction
Planned Parenthood South Atlantic v. State of South Carolina quickly made national headlines. The monumental ruling, which makes South Carolina one of the only Southern states where abortion remains legal up until 22 weeks of pregnancy, prompted immediate reactions from the other branches of state government.
Governor Henry McMaster (R) stated: “Our State Supreme Court has found a right in our Constitution which was never intended by the people of South Carolina. With this opinion, the Court has clearly exceeded its authority. 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.” State Attorney General Alan Wilson similarly stated that he “respectfully, but strongly, disagree[s] with the Court’s ruling,” and that he was working with the governor’s office to review “all our available options moving forward.”
State Representative John R. McCravy (R-Greenwood), who proposed a total ban on abortion during an August 2022 House session, called the decision “certainly disappointing” and an “[infringement] on the legislature’s job of making the laws.” McCravy has already co-sponsored a bill this year, introduced in the House on January 24, that would prohibit abortions starting at conception.
Additional moves in South Carolina’s ping-pong abortion debates may be forthcoming. The State Legislature can refer constitutional amendments to the ballot by a two-thirds supermajority vote in each chamber. While voters in California, Michigan, and Vermont have approved ballot measures enshrining a state constitutional abortion right in the wake of Dobbs, South Carolina may instead follow the path of other states like Tennessee to explicitly remove abortion from its state privacy protections.
Further, South Carolina may soon become the only state with an all-male Supreme Court bench. Justice Hearn is set to retire in the coming months, as South Carolina has a law setting the mandatory retirement age at 72 years. Her retirement is forecasted to leave behind an all-male bench — two female contenders for Hearn’s seat (Court of Appeals Judges Stephanie McDonald and Aphrodite Konduros) withdrew earlier this month, leaving state appeals Judge Gary Hill as the sole candidate for Hearn’s replacement. This would leave the court without a female justice for the first time in over 30 years.
With forthcoming legislative and executive actions in the state, as well as a changing composition of its highest court, the winning voices of South Carolina’s abortion debate may soon shift from one side to the other.
