South Carolina’s Six-Week Abortion Limit Struck Down (1)

Abortion up until 20 weeks will remain legal in South Carolina, after the state’s top court held that a law banning most abortions after the sixth week of pregnancy violates its constitution.

The decision follows a lively oral argument in the South Carolina Supreme Court, where all the justices agreed that the state’s governing document strongly protects its citizens’ right to privacy, but some weren’t sure if abortion falls within that right.

In the end, a majority concluded that the state can’t prohibit abortions at this early stage.

The Fetal Heartbeat and Protection from Abortion Act “violates a woman’s constitutional right to privacy” under the state constitution, wrote Justice Kaye Hearn.

“The decision to terminate a pregnancy rests upon the utmost personal and private considerations imaginable, and implicates a woman’s right to privacy,” Hearn said. And though that right isn’t absolute, South Carolina’s abortion law “is an unreasonable restriction upon a woman’s right to privacy and is therefore unconstitutional.”

Two other South Carolina Justices agreed the law ran afoul of the right of privacy guaranteed in the state’s constitution, while two dissented.

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.

Much of the oral argument focused on the state constitution’s privacy provision, with the plaintiffs arguing that it ought to be interpreted to extend to a right to abortion, and the state saying that it applies only in the search and seizure contexts. The justices, however, also were interested in whether abortion is a liberty interest protected by the state constitution’s due process clause.

This is one of the first cases brought under state constitutional provisions to be presented to a state’s top court on the merits. It’s part of a litigation trend that, though 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.

According to the opinion, South Carolina is among 10 states that include a specific right to privacy in their state constitutions. Several have determined that abortion implicates a privacy right.

In allowing for early stage abortion, Hearn wrote the court rejected the “argument to limit the right to privacy guaranteed in our constitution merely because the words used do not specifically mention medical care or bodily autonomy.”

Planned Parenthood receives funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Law is operated by entities controlled by Michael Bloomberg.

Planned Parenthood Federation of America, Burnette Shutt & McDaniel PA, and the Center for Reproductive Rights represent the plaintiffs. The South Carolina Attorney General’s Office represents the state. Womble Carlyle Sandridge & Rice and attorneys from the governor’s office represent the intervenors.

The case is Planned Parenthood S. Atl. v. State, S.C., No. 2022-001062, 1/5/23.