South Carolina Lawyers Weekly
Our state constitutional right to privacy extends to a woman’s decision to have an abortion. The state unquestionably has the authority to limit the right of privacy that protects women from state interference with her decision, but any such limitation must be reasonable and it must be meaningful in that the time frames imposed must afford a woman sufficient time to determine she is pregnant and to take reasonable steps to terminate that pregnancy. Six weeks is, quite simply, not a reasonable period of time for these two things to occur, and therefore the Fetal Heartbeat and Protection from Abortion Act (the Act) violates the South Carolina Constitution’s prohibition against unreasonable invasions of privacy.
The Act violates a woman’s constitutional right to privacy, as guaranteed in S.C. Const. art. I, § 10.
In 2021, the General Assembly passed the Act, which prohibits an abortion after around six weeks gestation. S.C. Code Ann. § 44-41-680 This is before many women even know they are pregnant.
South Carolina’s Constitution includes a specific reference to a citizen’s right to privacy. That provision states, “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 . . . .” S.C. Const., art I, § 10. The fundamental question before the court is whether the Act, which severely restricts and, in many cases, prohibits a woman’s decision to terminate a pregnancy, constitutes an “unreasonable invasion of privacy.”
The right to privacy protects from both unreasonable government invasions of privacy in citizens’ persons, houses, papers, and effects and against unreasonable government searches and seizures of citizens’ persons, houses, papers, and effects. Each of these modifying nouns has independent meaning.
It is important to note that this right to privacy was not created out of whole cloth in 1971, but instead was recognized as having always existed. The language, “shall not be violated” is an implicit recognition, not that the right was then granted to the people of South Carolina, but that it shall not now be violated.
Roe v. Wade, 410 U.S. 113 (1973), was overturned partially based on its reliance on an unmentioned and hence arguably nonexistent constitutional right to privacy; hence, Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228 (2022), does not control, nor even shed light on, our decision today since the South Carolina Constitution expressly includes a right to privacy.
Only six years after Griswold v. Connecticut, 381 U.S. 479 (1965), recognized marital privacy rights, South Carolina adopted article I, section 10. There can be no doubt that the authors of this provision were aware of Griswold and its use of the right to privacy.
Respondents’ position to limit the reach of the constitutional right to privacy to the criminal arena of search and seizure is also contrary to the jurisprudence of this court. We have found that the right to privacy may be implicated in many ways, from requiring a witness to divulge medical information during a criminal trial to forcing a convicted felon to take medication so that he may be competent enough to be executed.
The state advances three interests in support of this restriction: (1) fetal health, (2) maternal health and (3) the interest of the unborn fetus, which historically has been recognized at two different times: “quickening” at common law, and viability under since-overturned Supreme Court precedent.
At the early stages of pregnancy implicated by the Act, the fetus cannot be considered its own legal entity. The distinction between nonviable fetuses who are not able to recover and viable fetuses who are able to recover that has been present in our law for some time. In South Carolina, and indeed in all common law jurisdictions, the State has historically tied the potency of its interest in fetal life to quickening, where the fetus’s own interest also emerges.
The Act’s language overtly characterizes the abortion decision as an informed choice. Thus, whether women know they are pregnant by the time the Act prohibits most abortions and have a meaningful opportunity to decide whether to abort or to carry the pregnancy to full term, is unequivocally relevant to question before us.
Once a woman knows she is pregnant, in order to have a choice, options must be available. It is impossible to conclude that the average woman who determines she is pregnant at just over five weeks has sufficient time to weigh her options, schedule an appointment at one of three clinics in the state, and comply with the mandatory waiting periods before having an abortion. In reality, there is no “choice” at all under the Act. Accordingly, the scientific data belie the suggestion that women may actually have an “informed choice”, something the Act provides for.
Because the fetus’s interest has historically been recognized much later than six weeks, it cannot displace the pregnant woman’s interest at this early stage. Moreover, even the concept of a fetus at this early stage is a misnomer in terms of medical science.
Overall, after comparing the varying interests, the Act cannot withstand the clear directive of our state constitution—that “unreasonable invasions of privacy shall not be violated . . . .” While the state has an interest in fetal life and in providing women with vital medical information about their pregnancy, the Act’s six-week ban does not serve that interest. Rather, it forecloses abortion in South Carolina for many pregnant women who may seek it, underscoring the fact that any inclusion of an “informed choice” is contradictory with the remaining provisions. By leaving no room for many women to exercise that choice, the Act prohibits certain South Carolinians from making their own medical decisions. Thus, it cannot be deemed a reasonable restriction on privacy; accordingly, the Act violates S.C. Const. art. I, § 10.
Concurrence
(Beatty, C.J.) Although our determination turns on the right to privacy, I believe the Act is also void ab initio and denies state constitutional rights to equal protection, procedural due process, and substantive due process.
Concurrence
(Few, J.) The article I, § 10 prohibition on “unreasonable invasions of privacy” is a principle of law. The six-week ban in the Act violates the constitutional provision because—as a matter of law—it is an unreasonable intrusion into a pregnant woman’s right of privacy. The Act is, therefore, unconstitutional.
Dissent
(Kittredge, J.) Because the state constitution does not mandate otherwise, I would honor the policy decision made by the General Assembly. The Act reflects the balance struck by the legislature between the important, competing interests of the mother, the state, and the unborn. Our legislature elected to give meaningful consideration—and not turn a blind eye—to the lives of unborn children. The fact that the legislature struck the balance contrary to the desires of petitioners in no manner renders the policy determination unreasonable or otherwise unlawful.
Dissent
(James, J.) I would hold the privacy provision in article I, § 10 provides citizens with heightened Fourth Amendment protections, especially protection from unreasonable law enforcement use of electronic devices to search and seize information and communications. It goes no further.
As for South Carolina caselaw citing article I, § 10, I would overrule or modify the few decisions that directly or impliedly extend the privacy provision beyond the context of searches and seizures.
Planned Parenthood South Atlantic v. State (Lawyers Weekly No. 001-003-23, 147 pp.) (Kaye Hearn, J.) (Donald Beatty, C.J., concurring) (John Few, J., concurring in result only) (John Kittredge, J., joined by George James, J., dissenting) (George James, J., dissenting separately) Malissa Burnette, Kathleen McColl McDaniel and Grant Burnette LeFever, Julia Murray, Hannah Swanson, Genevieve Scott and Astrid Ackerman for petitioners; Jacquelyn Dickman, Ashley Caroline Biggers, William Marshall Taylor, Robert Horner, Erin Baldwin, Robert David Garfield and Steven Spreeuwers, Amanda Dudgeon, James Matthew Johnson, Alan McCrory Wilson, Robert Cook, Emory Smith and Thomas Tyler Hydrick for respondents; Kevin Hall, Matthew Todd Carroll, Thomas Ashley Limehouse, William Grayson Lambert and Erica Wells Shedd for respondent-intervenors; Randall Scott Hiller, Kimberly Parker, Jessica Notebaert, Brennan Tyler Brooks, Matthew Staver, Andrew Nichols, Timothy Newton, Barry Johnson, William Lamar Johnson, Samuel Darryl Harms, Henry Wilkins Frampton, Denise Harle, Larry Shawn Sullivan and John Knepper Amici Curiae. S.C. S. Ct.
