The Right to Privacy in South Carolina

Recently, the South Carolina Supreme Court struck down the state’s Fetal Heartbeat and Protection from Abortion Act (the “Act”), finding that it violates a woman’s right to privacy as guaranteed by the South Carolina Constitution.  It’s no secret that rights surrounding abortions and women’s health care are a hot topic in the media and politics.  But let’s get this out of the way: this post isn’t about abortion!  No matter where you stand on this polarizing issue, the Court’s recent decision in Planned Parenthood v. South Carolina has wide-reaching impacts that are crucial to understand. 

Justice Kaye Hearn wrote the lead opinion, linked [here].  To say the opinions of all the justices were spicy is an understatement!  And, as already noted, while the topic of abortion itself tends to draw most of the media attention, there are broad and important implications of the ruling in many other contexts. 

If this case wasn’t just about abortion, then what was it about? 

The focus was on Article I, Section 10 of the South Carolina Constitution.  In part, this portion of the Constitution guarantees “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…”  In other words, the government cannot freely rifle through your things or invade your privacy. 

Some people have argued that the right to privacy mentioned above is really the same thing as the protection against unreasonable searches and seizures.  The Court made clear that is not the case.  Justice Hearn dismantled the legal gymnastics required to limit the right to privacy to only within the search and seizure context.  She found that such narrow interpretation of the text would require rendering provisions meaningless or inconsequential.  In other words, she was unwilling to assume that the legislature needlessly repeated itself.  Thus, privacy is its own right, separate and apart from searches and seizures.  This is very important.  Privacy rights then can be implicated whenever there is government regulation or involvement in one’s private affairs with which the public has no legitimate concern, such as a person’s right to make certain individual decisions.  These could be things as mundane as what bank to use, where to live, or what food to eat.  

South Carolina is one of only ten states to have a specific right of privacy included in its constitution.  Of those states, the five others that have considered whether abortion implicates the right to privacy have found that it does.  These states are Alaska, Florida, Minnesota, Montana, and Tennessee. 

If there’s a right to privacy, can the government ever legislate things that may be considered private? 

The short answer is yes.  Even though a right to privacy exists, like most things, the government can step on that right if it has good reason to.  This is where the judiciary comes in, ensuring that the legislature does not step too far. 

Chief Justice Beatty succinctly summarized the question before the Court: “[W]hen does the state’s legitimate interest rise to a level where it is paramount to a woman’s constitutional right to privacy?”  This is the balancing the Court is responsible for. 

Ok, but where does the spiciness come in? 

When deciding a case, particularly based on statutory interpretation issues, judges regularly look at the historical context of the statute as well as other related statutory or case law.  In this particular case, Justice Hearn addressed head on arguments put forth by other members of the Court, and she did not pull any punches.  First, Justice Hearn directly confronted and rejected the argument that intent of the legislators as gleaned in committee notes from the 1966 amendment of the SC Constitution control the scope of the right to privacy, particularly in this context. Justice Hearn recounted that “in 1966 when the West Committee–initially composed of nine men and not a single woman–began discussing whether to add a state constitutional privacy amendment, the General Assembly had neither permitted women to serve on juries in this state nor ratified the Nineteenth Amendment,” which gave women the right to vote.  She continued, “Given this historical backdrop, we decline to limit our review of article I, section 10 to what the West Committee members may have thought at the time.”  [Mic drop.] 

Considering the balancing of government interests versus a woman’s right to privacy, Justice Hearn then turns to the details.  The Act generally prohibited abortions after 6 weeks gestation.  Scientific research establishes that the average time a woman becomes aware of a pregnancy is 5.5 weeks gestation.  Justice Hearn challenges the Act’s professed care for a woman’s “informed choice.”  She writes that 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 the three 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. 

Justice Hearn then pulls out the receipts and turns to other South Carolina cases and their treatment of a fetus at 6 weeks gestation.  She points out that in nearly every other context, case law has recognized the fetus’s interests much later than 6 weeks gestation.  For example, if someone killed a pregnant woman and her 6-week-old fetus, the killer would not be charged with two counts of murder. 

Ultimately, Justice Hearn concludes that the fetus’s interests (and the State’s interest in fetal life) cannot displace the pregnant woman’s interest at this early stage of pregnancy.  Therefore, the Act cannot be deemed a reasonable restriction on privacy. 

Where does that leave us? 

South Carolina had a prior law on the books prohibiting most abortion procedures after 20 weeks gestation.  The law on abortion reverts to this.  But more broadly, the affirmed right of privacy will have lasting impacts on the State, requiring the legislature to jump over higher hurdles to show the State’s interest trumps that of an individual.  

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