Closely divided South Carolina Supreme Court determines state constitution protects right to abortion

Posted Monday, January 23rd, 2023 by Gregory Forman
Filed under Jurisdiction, Of Interest to General Public, South Carolina Appellate Decisions, South Carolina Specific

In 1971, South Carolina adopted article I, section 10 as part of the state constitution. That section reads, “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 1993, relying upon this provision, the South Carolina Supreme Court, in Singleton v. State, 313 S.C. 75, 90, 437 S.E.2d 53, 62 (1993), sustained an incompetent death-row inmate’s challenge to being medicated in order to become competent.

In 1994, and less than three years out of law, school, I had my first published legal scholarship come out in South Carolina Lawyer magazine. The topic: Privacy Rights In South Carolina After Singleton v. State. The conclusion (which, unfortunately is cut off in this PDF), “With the Singleton decision, development of a substantial privacy rights jurisprudence in South Carolina is possible. If this occurs, privacy rights analysis may permeate almost every area of South Carolina law.” Within the article itself I analyzed how similar constitutional provisions had protected the right to abortion.  In the subsequent twenty-nine years there’s been little additional case law on this topic.

Yet, on January 5, 2023, in a 3-2 decision in the case of Planned Parenthood South Atlantic, et al. v. State of South Carolina, et al., 438 S.C. 188, 882 S.E.2d 770 (2023), South Carolina’s Supreme Court did what I predicted it might: holding that article I, section 10 of the South Carolina Constitution created a protected (albeit limited) privacy interest in the right to abortion.[1]

Planned Parenthood stemmed from a challenge to S.C. Code Ann. § 44-41-680  (hereinafter “Fetal Heartbeat Bill”). That 2021 law banned abortions after a fetal heartbeat can be detected (around six weeks gestation).  In June 2022, Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228 (2022) overruled Roe v. Wade, 410 U.S. 113 (1973), and Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992), freeing states to ban abortion, and essentially allowing South Carolina to enforce the 2021 law.  Planned Parenthood sued for injunctive relief, arguing that this new law violated South Carolina’s right to privacy.

At issue in Planned Parenthood was whether the language “and unreasonable invasions of privacy shall not be violated” created a broader right to privacy than the United States Constitution, and if it did, whether that privacy right granted some protection to a right to abortion.

Each of the five justices wrote separately but Justice Hearn’s was considered the “lead opinion” for the majority. Hearn rejected the state’s argument that article I, section 10 only applied to searches and seizures because such a reading “would render the words ‘and unreasonable invasions of privacy’ superfluous, as the preceding clause speaks specifically to searches and seizures.”  She noted Singleton stands for the proposition that South Carolina’s right to privacy protects some aspects of bodily autonomy and medical decision making. Accordingly, South Carolina’s right to privacy was broader than that in the United States constitution.  

Hearn’s opinion discusses United States Supreme Court jurisprudence at the time South Carolina adopted article I, section 10, noting that Griswold v. Connecticut, 381 U.S. 479, 485 (1965), recognized that the right to marital privacy was violated by a contraception ban.  She discounted argument that the West Committee notes surrounding the drafting of article I, section 10 were silent on the issue of abortion, observing there were no women on that committee and further noting South Carolina’s appalling history (as of 1971) in affording equal rights to women.  Her opinion discusses abortion case law from other states that have an explicit constitutional right to privacy, and notes that most (but not all) of these states found constitutional protection for a right to abortion.

Hearn noted legislative findings in support of the Fetal Heartbeat Bill regarding “the importance of a woman having an informed choice to continue her pregnancy.” Hearn found that South Carolina’s current statutory scheme essentially prohibits abortion within four weeks of conception. This is before many women realize they are pregnant.  Thus, the act prevented women from making an “informed choice” over whether to carry a pregnancy to term and was an “unreasonable” invasion of their right to privacy, specifically a right to bodily autonomy.

Justice Beatty’s concurring opinion expands of Hearn’s reasoning for finding the Fetal Heartbeat Bill unconstitutional.  He found the act also violates equal protection and the procedural and substantive guarantees of due process.

Justice Few had an interesting take on the constitutionality of the Fetal Heartbeat Bill, find it an arbitrary limitation on a woman’s right to privacy but suggesting an absolute ban might be constitutional.  His concurrence noted that the word “privacy” in the constitutional provision including “all forms of privacy.” He noted that in the twenty-nine years since Singleton, the state had never argued that the Supreme Court erred by applying the “unreasonable invasions of privacy” provision beyond search and seizure and electronic surveillance.  He cited two subsequent cases, State v. Blackwell, 420 S.C. 127, 151, 801 S.E.2d 713, 725 (2017) and State v. Forrester, 343 S.C. 637, 644, 541 S.E.2d 837, 841 (2001), that applied article I, section 10 to contexts outside of search and seizure.  He noted the West Committee notes were not adopted by the General Assembly and thus could not be used to interpret that constitutional provision.

Few found, “The extent to which abortion should be regulated is a legislative—or political— question” (emphasis in original).  He held, “if the State were to pass a total ban on abortion—despite a complete invasion of a pregnant woman’s right to privacy—the privacy invasion might be reasonable under article I, section 10, because ‘human life’ has no countervailing interest; human life simply must be preserved.”  However by providing women the right to choose abortion until a fetal heartbeat can be detected, and by recognizing a woman’s interest in an “informed choice” on whether to continue a pregnancy or to have an abortion , he determined the state created a privacy interest in the right to an abortion.

He then discussed how the Fetal Heartbeat Bill created a factual dispute that the record did not adequately 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?”  The state objected to the Supreme Court’s request for supplemental briefing on this question. Few noted, “having identified ‘informed choice’ as a countervailing interest to the State’s interest in protecting unborn life[,] the State cannot point to a single fact the General Assembly considered that could support a factual determination that such a choice meaningfully exists under the Fetal Heartbeat Act.”

He noted that ordinarily, the Supreme Court would defer to the General Assembly’s factual finding.  However, he held, “the General Assembly’s failure to consider this necessary factual question is arbitrary under the law.”  He thus found, “the Fetal Heartbeat Act unconstitutional because the General Assembly’s failure to consider the necessary factual question as a predicate to its policy judgment was arbitrary.”

Justice Kittridge’s dissent started by analyzing United States Supreme Court opinions on privacy and abortion. He argued the lack of punctuation preceding the language “and unreasonable invasions of privacy shall not be violated” meant this was not intended to be a separate right but merely part of the right against unreasonable searches and seizures.  That said, he would not foreclose a reading of article I, section 10 that allowed greater protection of privacy interests; he simply would not use that provision to find a right to abortion. He noted, “the law separates abortion from other healthcare decisions, as abortion presents an additional and critically important competing consideration, one that a state indisputably has a legitimate interest in advancing: protecting the life of the unborn child.”

Kittridge found significance in the West Committee’s lack of discussion of any right to abortion being encompassed by the proposed right to privacy.  Thus, if there was a right to abortion in the South Carolina constitution, he would have found it as part of a due process liberty interest in article I, section 3.  However, he would not find such an interest, stressing that a right to abortion was not deeply rooted in South Carolina history and that abortion is not implicit in the concept of ordered liberty.  Much of Kittridge’s opinion then attempted to respond to criticisms of his opinion within the three majority opinions.

Justice James wrote extensively.  He would hold that article I, section 10, grants South Carolina residents a heighted right against unreasonable searches and seizures but has no application outside of search and seizure law. That alone would be sufficient basis to sustain the Fetal Heartbeat Bill.

South Carolina’s General Assembly is obviously upset with the Planned Parenthood decision. Much legislative attention the past few years has been focused on restricting abortion rights and this opinion limits the legislature’s ability to do so.  Justice Hearn’s pending age-mandated retirement no doubt impacted the selection of her replacement as (one assumes) the legislature is hoping the newest justice will not find abortion rights protected by article I, section 10.

One also assumes given the recent experience in Kansas—a conservative state that, in a 2022 referendum, rejected a constitutional amendment that would have withdrawn from constitutional protection any right to abortion—our General Assembly is unwilling to allow voters to potentially amend article I, section 10 to similarly withdraw such constitutional protections. A majority of our legislature is beholden to anti-abortion activists and hopes to accomplish abortion restrictions through legislation (including, potentially, a ban on all abortions with limited exceptions) that our citizenry likely wouldn’t accept by referendum.

For now, South Carolina’s twenty-week ban appears to remain in effect but the six-week ban does not. Expect much sturm und drang as our legislature works to further restrict abortion.

[1]The 147 page opinion contains separate opinions from each Justice and this blog will not attempt a thorough analysis of each Justice’s opinion.

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