South Carolina Supreme Court strikes down state’s six-week abortion ban as ‘unreasonable’ and unconstitutional

In 2021, the Republican-led South Carolina legislature passed, and Gov. Henry McMaster (R) signed into law, a ban on abortions after the detection of a “fetal heartbeat,” which usually occurs around six weeks of pregnancy, though the usual exceptions for rape, incest, and health issues for the mother were included.

That law has now been struck down as unconstitutional by the South Carolina Supreme Court, as it was determined to be in violation of the state constitution’s guarantee of a “right to privacy,” The Washington Times reported.

As a result of the ruling, the Palmetto State’s prior restriction on abortions that banned the fatal procedure for unborn babies after 20 weeks of pregnancy, with the usual exceptions, has now come back into effect.

Law constitutes an “unreasonable restriction” on privacy rights

The South Carolina Supreme Court was split 3-2 on the issue, with the majority opinion being authored by Justice Kaye Hearn, who wrote that while the state “unquestionably” had the authority to impose limits on the right to privacy, which apparently includes access to abortions, those limitations must allow for a “reasonable” period of time for a woman to first realize that she is pregnant and then “take reasonable steps to terminate that pregnancy.”

The jurist noted of the challenged law, “Six weeks is, quite simply, not a reasonable period of time for these two things to occur.”

“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 privacy,” Hearn summarized. “While this right is not absolute, and must be balanced against the State’s interest in protecting unborn life, this Act, which severely limits — and in many instances completely forecloses — abortion, is an unreasonable restriction upon a woman’s right to privacy and is therefore unconstitutional.”

Concurrence and dissent

The Times noted that during oral arguments in the case, abortion advocates had asserted that the state constitution’s right to privacy should be interpreted broadly to encompass an individual’s health decisions, including abortion. Supporters of the challenged law, however, argued that the privacy right should be interpreted more narrowly to only apply to “unreasonable searches and seizures.”

Justice Hearn was joined in agreeing to the broad interpretation favored by the abortion advocates by Chief Justice Donald Beatty and Justice John Cannon Few.

According to Politico, Chief Justice Beatty wrote a concurring opinion and said, “Our decision today is neither ‘pro-choice’ nor ‘pro-life’; it merely recognizes that our state constitution grants every South Carolinian a right to privacy, equal protection, and due process of laws. This fundamental, constitutional mandate transcends politics and opinion.”

On the other side of the equation and in separate dissenting opinions, Justice George James Jr. wrote that the right to privacy should only be extended to searches and seizures while Justice John Kittredge suggested that while the right to privacy extended beyond just searches and seizures, it nonetheless was not applicable to abortions.

In his dissent, Kittredge warned against judicial interference in a political debate and wrote, “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.”

South Carolina GOP committed to further restricting abortion

To be sure, abortion advocates like Planned Parenthood and elected Democrats in the state cheered the ruling from the state Supreme Court, while that same decision was denounced and criticized by opponents of the grisly procedures to kill unborn babies.

And, Politico noted that Republican lawmakers in the state have already begun working on legislation to try and restrict abortions even further with a ban that starts at conception — an effort apparently supported by Gov. McMaster, per his statement in response to the high court’s ruling.

“Our State Supreme Court has found a right in our Constitution which was never intended by the people of South Carolina. With this opinion, the Court has clearly exceeded its authority. The people have spoken through their elected representatives multiple times on this issue,” McMaster wrote on Twitter. “I look forward to working with the General Assembly to correct this error.”

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