The South Carolina Supreme Court on Thursday overturned the state’s ban on abortion after around six weeks of pregnancy, ruling that the law violated the state’s constitutional right to privacy.
The 3-2 decision comes nearly seven months after the U.S. Supreme Court’s bombshell ruling voiding the federal constitutional right to terminate pregnancies.
President Joe Biden’s press secretary Karine Jean-Pierre in a tweet wrote: “We are encouraged by South Carolina’s Supreme Court ruling today on the state’s extreme and dangerous abortion ban.”
“Women should be able to make their own decisions about their bodies,” Jean-Pierre wrote.
The decision by the South Carolina Supreme Court is based on the state’s own constitution, which, unlike the U.S. Constitution, explicitly gives citizens a right to privacy.
“We hold that the decision to terminate a pregnancy rests upon the utmost personal and private considerations imaginable, and implicates a woman’s right to pregnancy,” Justice Kaye Hearn wrote in the majority opinion.
“While this right is not absolute, and must be balanced against the State’s interests in protecting unborn life, this Act, which severely limits — and in many cases completely forecloses — abortion, is an unreasonable restriction upon a woman’s right to privacy and is therefore unconstitutional,” Hearn wrote.
Defenders of the abortion ban had argued that the state’s right to privacy only applied to criminal defendants in the context of protections from unreasonable search and seizure, given the constitution’s explicit reference to that protection.
But that argument was rejected by Hearn and the two justices that joined her in the majority ruling: Chief Justice Donald Beatty and Justice John Few.
She noted that the constitution details not only protections “against unreasonable searches and seizures,” but also against “unreasonable invasions of privacy.”
Hearn also wrote that any limitations on abortion “must be reasonable,” and give a woman enough 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,” she wrote.
Thursday’s ruling leaves intact the state’s existing ban on most abortion after 20 weeks of pregnancy.
South Carolina’s General Assembly in 2021 passed a law prohibiting abortion after the detection of a heartbeat in a fetus, which typically is heard after about six weeks of pregnancy.
That ban included exceptions in cases of pregnancies that threatened the mother’s life, and for pregnancies caused by rape or incest.
The law was blocked from taking effect by federal courts until the U.S. Supreme Court’s ruling on June 24 overturning the federal right to abortion that had been in place since the Roe v. Wade decision in 1973.
South Carolina’s abortion ban was again blocked in August, this time by the state Supreme Court, after a new lawsuit was filed seeking to invalidate it. That lawsuit led to Thursday’s ruling overturning the law.
In a dissent Thursday, Justice John Kittredge wrote that the constitutional reference to “unreasonable invasions of privacy” was an “ambiguous phrase.”
“There is no language in article I, section 10 of the South Carolina Constitution that supports an interpretation of a privacy right that would encompass a right to abortion,” Kittredge wrote.
“The ‘unreasonable invasion of privacy’ language is part of the search and seizure clause and is not a standalone provision,” he wrote.
The decision by the U.S. Supreme Court invalidating the federal right to abortion effectively left it up to individual states to regulate pregnancy terminations. More than a dozen states effectively banned abortions on the heels of that ruling.
But less than two months after the ruling, voters in Kansas rejected a proposed constitutional amendment that would have revoked abortion rights in that state.
In November, voters in Kentucky rejected a measure that would had denied a state constitutional right to abortion. In Michigan, voters approved the addition of a right to abortion in that state’s constitution.
