Constitutional – Fetal Heartbeat Anti-Abortion Act – Privacy Right – Reasonable Invasion

In a new version of the Fetal Heartbeat and Protection from Abortion Act (the 2023 Act), our General Assembly has made a policy determination that, at a certain point of pregnancy, a woman’s interest in autonomy and privacy does not outweigh the interest of the unborn child to live. We cannot say as a matter of law that the 2023 Act is unreasonable and thus violates the South Carolina Constitution.

The 2023 Act is constitutional.

The 2023 Act generally prohibits an abortion after the detection of a fetal heartbeat, not at a specified period of weeks into the pregnancy. S.C. Code Ann. § 44-41-610(6). The law provides limited exceptions allowing for an abortion in the event of a risk to the health of the mother, fatal fetal anomalies, rape, and incest. § 44-41-640 to -660.

In support of the 2023 Act, the legislature explained it had placed weight on the fact that a woman could learn of her pregnancy within seven to fourteen days of conception and would have several weeks after that to make her decision and have an abortion if she so chose. Thus, the legislature stated it had determined the “proper balance should be struck at the point of a fetal heartbeat,” given the “ample” period of weeks a woman would have “to make a decision about whether to terminate her pregnancy.”

The 2023 Act is materially different from the 2021 act that a majority of this court previously declared unconstitutional. The new balance struck in the 2023 Act between the competing interests of the mother and unborn child was combined with the legislature’s new focus on contraceptives and early pregnancy testing, as well as a repeal of the statutes that codified the trimester framework of Roe v. Wade, 410 U.S. 113 (1973), overruled by Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022).

The issue before us is whether the 2023 Act constitutes an unreasonable invasion of privacy in violation of S.C. Const. art. I, § 10: “The right of the people to be secure in their persons . . . against . . . unreasonable invasions of privacy shall not be violated. . . .”

We will assume for purposes of our analysis that the privacy provision reaches beyond the search and seizure context to include bodily autonomy.

The 2023 Act clearly infringes on a woman’s right of privacy and bodily autonomy. However, the legislature has made a policy determination that, at a certain point in the pregnancy, a woman’s interest in autonomy and privacy does not outweigh the interest of the unborn child to live. Through the legal and judicial lens under which we must operate, we cannot say as a matter of law that the 2023 Act is unreasonable and thus violates the state constitution.

Because the 2023 Act is within the zone of reasonable policy decisions rationally related to the state’s interest in protecting the unborn, we are constrained to defer to the legislature’s policy prerogative.

The 2023 Act is constitutional.

Concurrence

(Few, J.) I voted to strike down the 2021 act because the General Assembly had failed to make any inquire as to whether a substantial percentage of women even know they are pregnant in time to make an informed choice about whether to continue a pregnancy within the statutory timeframe. In the 2023 Act, the General Assembly not only considered the key question, it changed the question to focus the attention of sexually-active couples on active family planning, thereby expanding the notion of choice to the period of time before fertilization, certainly before a couple passively learns of a pregnancy. The abortion restrictions in the 2023 Act are reasonable. I find the 2023 Act constitutional.

Dissent

(Beatty, C.J.) The 2023 Act will essentially force an untold number of affected women to give birth without their consent. I am hard-pressed to think of a greater governmental intrusion by a political body. The majority leaves “for another day . . . the meaning of ‘fetal heartbeat’ and whether the statutory definition . . . refers to one period of time during a pregnancy or two separate periods of time.” In the absence of this critical determination, I fail to see how the majority’s result today is legally justifiable.

Planned Parenthood South Atlantic v. State (Lawyers Weekly No. 010-049-23, 51 pp.) (John Kittredge, J.) (John Few, J., concurring) (Donald Beatty, C.J., dissenting) Original jurisdiction. Thomas Limehouse, William Grayson Lambert, Erica Wells Shedd, Patrick Graham Dennis, Kenneth Moffitt, John Potter Hazzard, Jessica Godwin, Alan McCrory Wilson, Robert Cook, Emory Smith, Thomas Tyler Hydrick and Joseph David Spate for petitioners; Melissa Burnette, Kathleen McColl McDaniel, Grant Burnette LeFever, Catherine Peyton Humphreville, Kyla Eastling, Caroline Sacerdote and Jasmine Yunus for respondents; Randall Scott Killer, Kimberly Parker, Hannah Gelbort, Christopher Ernest Mills and Harmon Cooper for amici curiae. South Carolina Supreme Court