A South Carolina law criminalizing most abortions at more than six weeks after conception violates a state constitutional provision that protects citizens against unwarranted invasions of privacy, abortion providers will argue in the South Carolina Supreme Court Wednesday.
Courts in the state have interpreted Article I, Section 10 of the South Carolina Constitution as guaranteeing that a person has a fundamental right to make choices about their medical care and bodily integrity, Genevieve Scott, senior counsel at the Center for Reproductive Rights told Bloomberg Law. The state’s fundamental constitutional right to medical self-determination should be extended to include abortion, Scott said. CRR is one of several organizations representing the providers.
The state refuted that argument in a written brief filed with the court, asserting that the provision doesn’t protect a right to abortion. It was intended to protect citizens’ privacy in the context of criminal searches, as new technologies emerge that broaden the government’s ability to intrude on private space, the state said.
A spokesman for South Carolina Attorney General Alan Wilson (R) told Bloomberg Law that the office doesn’t comment on pending litigation.
The court called the issue a “close one” in a previous order temporarily blocking the law’s enforcement.
State Lawsuit Trend
The case over a provision known as the “Fetal Heartbeat Protection From Abortion Act” is one of the first suits brought under state constitutional provisions to be presented to a state’s top court on the merits. The Idaho Supreme Court recently heard similar arguments in a case involving three near-total abortion bans, but hasn’t issued a decision yet. Top courts in Kentucky and Indiana have arguments scheduled in the coming months.
Similar lawsuits are wending their way through lower state courts in places like North Dakota, Georgia, and Iowa—part of a litigation trend that, while not new, gained momentum after the US Supreme Court’s June ruling in Dobbs v. Jackson Women’s Health Organization that there’s no federal constitutional right to end a pregnancy before viability. With no federal right to rely on, abortion providers looked to state analogs instead.
Planned Parenthood South Atlantic, Greenville Women’s Clinic, and two doctors filed the case in a South Carolina trial court in mid-July, arguing that the six-week ban violates the state constitution’s equal protection and due process clauses, as well as its privacy provision. The trial court allowed the law to take effect, but transferred the case to the top court, which temporarily barred its enforcement.
In its brief on the merits, the state maintained that the heartbeat bill doesn’t violate the constitution’s equal protection clause because it doesn’t discriminate on the basis of sex, gender, or any other suspect classification. Moreover, the state’s top court has recognized that gender-based classifications are appropriate under the South Carolina Constitution when the classification merely recognizes that the sexes aren’t similarly situated in some circumstances, such as with pregnancy, it said.
Additionally, abortion isn’t a “fundamental” right protected by the substantive due process clause, so the court should use intermediate scrutiny when examining the law, the state said. The provision passes this test because it “bears a fair and substantial relationship to legitimate state ends by protecting unborn life and protecting maternal health,” it said.
‘Unique Position’
A decision invalidating the law would be “extremely important,” CRR’s Scott said. The South Carolina Supreme Court is in a “unique position” to protect citizens’ rights to decide for themselves whether to continue a pregnancy, she said.
A ruling in the providers’ favor also would give people outside the state a place where they can get needed care, especially in the South, where several states have restricted abortion access, she said. It also may relieve pressure on providers both in and outside the state and help clear up confusion about what services they can legally offer to patients, Scott said.
Scott described the court’s earlier decision putting the law on hold while the case progressed as an “extremely helpful move” that has allowed abortion providers in South Carolina to remain open and continue providing care.
Looking Ahead
South Carolina lawmakers are working to make the heartbeat law even stricter, regardless of the current litigation.
The state Senate passed a bill Sept. 8 amending the currently enjoined six-week ban’s exceptions for pregnancies resulting from rape or incest. Under the bill, which was sent back to the House following Senate amendments, an abortion in either case could be performed only within the first 12 weeks of pregnancy.
Further, the bill would require the doctor who performed the abortion to report it to law enforcement within 24 hours. The report must include the patient’s name, contact information, and fetal DNA.
The bill also would allow post-six week abortions in cases involving a “fetal anomaly"—defined as “a profound and irremediable congenital or chromosomal anomaly that, with or without the provision of life-preserving treatment, would be incompatible with sustaining life after birth.” The diagnosis must be confirmed by two other physicians.
Julie Murray, a senior staff attorney with Planned Parenthood Federation of America, will argue on behalf of the plaintiffs. The arguments will be streamed on the court’s website.
Burnette Shutt & McDaniel PA also represents the providers. The South Carolina Attorney General’s Office represents the state.
Planned Parenthood receives funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Law is operated by entities controlled by Michael Bloomberg.
The case is Planned Parenthood S. Atl. v. South Carolina, S.C., No. 2022-001062, oral argument scheduled 10/19/22.
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