COLUMBIA, S.C. — The South Carolina Supreme Court on Thursday struck down a ban on abortion after six weeks, ruling the restriction enacted by the Deep South state violates a state constitutional right to privacy.
The decision marked a significant victory for abortion rights’ advocates suddenly forced to find safeguards at the state level after the U.S. Supreme Court overtured Roe v. Wade in June. With federal abortion protection gone, Planned Parenthood South Atlantic sued in July under the South Carolina constitution’s right to privacy. Restrictions in other states are also facing challenges, some as a matter of religious freedom.
South Carolina Gov. Henry McMaster holds up a bill banning almost all abortions in the state after he signed it into law in 2021, in Columbia, S.C. Jeffrey Collins/Associated Press, file
But since the high court’s momentous decision in Dobbs v. Jackson Women’s Health Organization, no state court until Thursday in South Carolina had ruled definitively whether a constitutional right to privacy – a right not explicitly enumerated in the U.S. Constitution – extends to abortion.
“Planned Parenthood will keep working day by day and state by state to safeguard that right for all people,” Alexis McGill Johnson, president of Planned Parenthood Federation of America, said in a statement after Thursday’s ruling.
The 3-2 decision comes nearly two years after Republican Gov. Henry McMaster signed the restriction into law. The ban after cardiac activity, which included exceptions for pregnancies by rape or incest or pregnancies that endanger the patient’s life, drew lawsuits almost immediately.
Justice Kaye Hearn, writing for the majority, said the state “unquestionably” has the authority to limit the right of privacy that protects from state interference with the decision to get an abortion. But she added any limitation must afford sufficient time to determine one is pregnant and take “reasonable steps” if she chooses to terminate that pregnancy.
“Six weeks is, quite simply, not a reasonable period of time for these two things to occur,” Hearn added.
Currently, South Carolina bars most abortions at about 20 weeks beyond fertilization, or the gestational age of 22 weeks.
On Twitter, White House spokesperson Karine Jean-Pierre applauded the clampdown “on the state’s extreme and dangerous abortion ban.”
“Women should be able to make their own decisions about their bodies,” Jean-Pierre added.
Varying orders have given both the law’s supporters and opponents cause for celebration and dismay. Those seeking abortions in the state have seen the legal window expand to the previous limit of 20 weeks before returning to the latest restrictions and back again.
Federal courts had previously suspended the law. But the U.S. Supreme Court’s June decision allowed the restrictions to take hold – briefly. Then the state Supreme Court temporarily blocked it this past August as the justices considered a new challenge.
In South Carolina, lawyers representing the state Legislature have argued the right to privacy should be interpreted narrowly. During oral arguments this past October, they argued historical context suggests lawmakers intended to protect against searches and seizures when they ratified the right in 1971. Planned Parenthood attorneys representing the challengers have said the right to privacy encompasses abortion. They argued previous state Supreme Court decisions already extended the right to bodily autonomy.
Chief Justice Donald Beatty and Justice John Cannon Few joined Hearn in the majority. Justice George James, Jr., wrote in a dissenting opinion that the right to privacy protects only against searches and seizures. Justice John Kittredge wrote separately that the state constitution protects privacy rights beyond searches and seizures but did not apply in this case.
Multiple justices emphasized that Thursday’s ruling confronted only legal questions and rejected the political aspects of the debate.
The justices’ limited ruling left the door open for future changes. The state House and Senate failed to agree last summer on additional restrictions during a special session on abortion. Still, a small but growing group of conservative lawmakers have vowed to push that envelope once more this legislative session – despite some Republican leaders’ previous insistence no agreement is possible.
In a statement to The Associated Press, South Carolina Democratic Party Chairman Trav Robertson applauded the ruling as amounting to “a voice of reason and sanity to temper the Republicans’ legislative actions to strip rights away from women and doctors.”
Republicans, led by the governor, vowed Thursday to press forward with new atempts at restrictions. McMaster, who is soon to be inaugurated to his final full term, indicated a new abortion measure will be a priority when the legislature reconvenes next week.
“With this opinion, the Court has clearly exceeded its authority,” McMaster’s statement said. “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.”
Republican South Carolina House Speaker G. Murrell Smith, Jr., tweeted that the state justices created “a constitutional right to an abortion where none exists.” Smith echoed Justice Kittredge in adding the decision failed to respect the separation of powers.
In a dissenting opinion, Kittredge warned against letting the judicial branch resolve what he said is a “policy dispute.”
“Our legislature has made a policy determination regulating abortions in South Carolina. The legislative policy determination, as contained in the Act, gives priority to protecting the life of the unborn,” Kittredge wrote.
Abortion access advocates on Thursday doubled down on their opposition to any new restrictions in anticipation of further legislative debate.
South Carolina Democratic House Minority Leader Todd Rutherford said any continuation of Republicans’ “war on women” is a deliberate waste of taxpayer dollars.
And standing shoulder-to-shoulder outside the Palmetto State’s high court on Thursday afternoon, advocacy groups celebrated what they called a “mandate.”
“This is a monumental victory in the movement to protect legal abortion in the South,” Planned Parenthood South Atlantic President Jenny Black said in an earlier statement. “Planned Parenthood South Atlantic and our partners will continue our fight to block any bill that allows politicians to interfere in people’s private health care decisions.”
Associated Press writers Meg Kinnard and Jeffrey Collins contributed to this report. James Pollard is a corps member for the Associated Press/Report for America Statehouse News Initiative. Report for America is a nonprofit national service program that places journalists in local newsrooms to report on undercovered issues.
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