COLUMBIA, S.C. — The South Carolina Supreme Court on Thursday struck down the state’s six-week abortion ban, ruling it violated the state’s constitutional right to privacy.
In a 3-2 vote, the state’s high court wrote, in part, “We hold that our state constitutional right to privacy extends to a woman’s decision to have an abortion.” In the majority were Supreme Court Chief Justice Donald Beatty, Justice John Few and Justice Kaye Hearn, the lone woman on the Supreme Court, who will retire this year.
The abortion ban, signed into law in 2021, had been temporarily suspended as the South Carolina Supreme Court mulled its constitutionality. It means the state’s previous ban at about 20 weeks stays in place for now.
Abortion rights groups including Planned Parenthood, the Center for Reproductive Rights and the Women’s Rights Empowerment Network celebrated the Thursday ruling.
Republican Gov. Henry McMaster, a Republican, said Thursday the high court “clearly exceeded its authority.”
“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,” the governor said in part.
Because South Carolina is one of 10 states to include a specific citizen’s right to privacy in its Constitution, the court’s decision came down to whether the six-week abortion ban constituted an “unreasonable invasion of privacy.”
The state had argued the right to privacy applied only to criminal defendants in the context of search and seizure and did not extend to an individual’s decisions about their own medical care, arguing the Constitution never mentioned abortion or a woman’s right to bodily autonomy.
The Supreme Court majority rejected the state’s argument that citizen’s privacy rights should be limited in this way and found the state’s definition actually ran contrary to prior state Supreme Court rulings.
“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,” Hearn wrote in the majority opinion.
The state Supreme Court also looked to courts in other states with an explicit constitutional right to privacy that had opined on abortion rights and found all five that had found privacy rights did encompass a woman’s decision to terminate her pregnancy.
The South Carolina Supreme Court’s majority opinion, written by Hearn, acknowledged the state had the authority to limit privacy rights when it came to abortion, but said such limits must be reasonable. The time frames imposed must afford a woman sufficient time to determine she is pregnant and take reasonable steps to terminate that pregnancy, the opinion states.
“Six weeks is, quite simply, not a reasonable period of time for these two things to occur, and therefore the Act violates our state Constitution’s prohibition against unreasonable invasions of privacy,” the court majority wrote.
Hearn wrote in the majority opinion that because most women don’t know they’re pregnant until about six weeks, an abortion ban at that point would preclude women from being able to make an informed choice about whether to continue their pregnancy.
“At the risk of stating the obvious, in order for a choice to be informed, a woman must know she is pregnant,” she wrote. “Once a woman knows she is pregnant, in order to have a choice, options must be available.”
Hearn wrote it would be “impossible” for the average woman in South Carolina to have sufficient time to weigh her options, schedule an appointment at one of the three abortion clinics in the state and comply with the mandatory waiting periods before having an abortion.
“This confirms that in reality, there is no ‘choice’ at all,” she wrote. By leaving many women without a choice, Hearn wrote, the six-week abortion ban prohibits certain South Carolinians from making their own medical decisions.
The South Carolina Legislature revisited the abortion ban this fall after the U.S. Supreme Court’s Dobbs decision, overruling the 1973 landmark case of Roe v. Wade. But Republican legislators, who make up the majority of the House and Senate, failed to reach a compromise over how restrictive the ban should be.
Conservative legislators want to revisit the ban this session, which starts Jan. 10.
House Speaker Murrell Smith Jr., R-Sumter, said Thursday the court’s ruling “fails” to respect the separation of powers.
“The U.S. Supreme Court, through their Dobbs decision this summer, handed the issue of abortion back to state legislatures. Unfortunately, the South Carolina Supreme Court followed the path of the U.S. Supreme Court in Roe v. Wade by creating a constitutional right to an abortion where none exists,” the speaker tweeted.
“Today’s decision fails to respect the concept of separation of powers and strips the people of this state from having a say in a decision that was meant to reflect their voices. Instead, South Carolina is left with a decision that is not reflective of our state’s political process or will.”
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