South Carolina Reproductive Rights Law Update

A South Carolina Supreme Court decision issued early this year sheds light on laws affecting reproductive health in the state. The decision, which came out January 5, 2023, dealt with a state law regarding abortion. However, it has broader implications for bodily autonomy and reproductive choice, and that will be the focus of this blog post.

In 2021, South Carolina passed a law (the Fetal Heartbeat and Protection From Abortion Act) banning abortion after cardiac activity is detected—typically at around six weeks gestation. The ban made exceptions for pregnancies that endanger the life of the carrier, and for those pregnancies resulting from rape and incest. The state law was suspended by federal law then in place, but was able to take effect after Roe v. Wade was overturned in 2022.

Opponents of the law challenged it on privacy grounds. Their argument was founded on the right to privacy enshrined in the South Carolina state constitution in 1971. South Carolina is one of ten states that explicitly identify a right to privacy in their constitution.

The South Carolina Constitution states in Article I, Section 10 that "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.” The privacy protections offered by this provision are somewhat broader than those offered by the Fourth Amendment to the United States Constitution.

Though the provision does not specifically mention reproductive rights, challengers to the 2021 abortion ban argued that it should be interpreted to encompass those rights. Opponents of the challenge to the Fetal Heartbeat and Protection from Abortion Act asserted that the constitutional privacy right should be interpreted only to protect individuals from unreasonable search and seizure in the context of criminal cases.

Arguments Regarding Privacy and Laws Affecting Reproductive Rights

The South Carolina Supreme Court heard oral arguments on challenges to the state’s abortion ban in October 2022 before releasing its January 2023 decision. Justice Kay Hearn wrote for the majority in the Court’s 3-2 decision, stating, “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…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.” The ruling is significant because, for the first time, the state Supreme Court has explicitly extended the right of privacy to pregnancy and reproductive rights.

Justices dissenting to the opinion cautioned that the right to privacy is not an amorphous one, and asserted that there should be an “objective legal framework” for determining just how far South Carolina’s constitutional right to privacy should extend.

Implications for Reproductive Rights Laws

The recent opinion noted that South Carolina did not simply create a right to privacy in 1971, but that the amendment to the Constitution recognized that right as always having existed. While the amendment was put in place prior to the U.S. Supreme Court decision in Roe v. Wade, the nation’s highest court had decided Griswold v. Connecticut in 1965, six years before the South Carolina constitutional amendment.

The South Carolina committee that articulated the right to privacy in the state constitution was almost certainly aware of the Griswold case. In that case, the U.S. Supreme Court upheld a right to “marital privacy,” which superseded state law bans regarding the use of contraception.

The South Carolina Supreme Court concluded that the Fetal Heartbeat and Protection from Abortion Act was not justified by the state’s interest in protecting maternal and fetal health. More broadly, however, the ruling establishes that “few decisions in life are more private than the decision whether to terminate a pregnancy,” and that any restrictions on the ability to make that decision necessarily implicate the state’s constitutional privacy right.

It is not a stretch to imagine that this clarification of South Carolina’s privacy rights could affect in other ways individuals who are, or plan to be, pregnant. If you have questions regarding reproductive rights laws and the right to privacy, especially as those laws intersect with assisted reproductive technology, please contact Brinkley Law Firm to schedule a consultation.