The South Carolina Supreme Court on Thursday overturned the state’s ban on abortion after about six weeks of pregnancy, ruling that the law violates the state’s constitutional right to privacy.
The 3-2 decision comes almost seven months after the US Supreme Court’s bombshell ruling overturning the federal constitutional law on abortion.
President Joe Biden’s press secretary, Karine Jean-Pierre, wrote in a tweet, “We are heartened by today’s ruling by the South Carolina Supreme Court of the state’s extreme and dangerous abortion ban.”
“Women should be able to make their own decisions about their bodies,” wrote Jean-Pierre.
The South Carolina Supreme Court’s decision is based on the state’s own constitution, which expressly grants citizens a right to privacy, unlike the US Constitution.
“We believe that the decision to terminate a pregnancy is based on the highest possible personal and private considerations and implies a woman’s right to conceive,” Judge Kaye Hearn wrote in the Majority Opinion.
“While this right is not absolute and must be balanced against the state’s interest in protecting unborn life, this law, which severely restricts — and in many cases excludes, abortion entirely — is an unreasonable restriction on a woman’s right to privacy and is.” it is therefore unconstitutional,” Hearn wrote.
Defenders of the abortion ban had argued that the state’s right to privacy only applied to criminal suspects in the context of protections from unreasonable search and seizure because the Constitution expressly referred to those protections.
But that argument was rejected by Hearn and the two justices who joined her in the majority decision: Chief Justice Donald Beatty and Justice John Few.
She noted that the Constitution not only provides safeguards “against unreasonable searches and seizures,” but also against “unreasonable invasions of privacy.”
Hearn also wrote that any restriction on abortion must be “reasonable” and must allow a woman adequate time to “determine that she is pregnant and to take reasonable steps to terminate that pregnancy”.
“Six weeks is simply not an appropriate time period for either of those things,” she wrote.
Thursday’s ruling leaves intact the existing state ban on most abortions after 20 weeks of pregnancy.
South Carolina’s General Assembly in 2021 passed legislation banning abortions after a fetus was found to have a heartbeat, which is usually heard around six weeks into pregnancy.
This prohibition included exceptions in cases of pregnancies that threatened the mother’s life and pregnancies caused by rape or incest.
The law was blocked by federal courts until the US Supreme Court ruled on June 24 to overturn the federal abortion law in place since the Roe v. Wade was in effect in 1973.
South Carolina’s abortion ban was blocked again in August, this time by the state Supreme Court, after a new lawsuit was filed seeking to invalidate it. That lawsuit resulted in the repeal of the law on Thursday.
In a dissent Thursday, Judge John Kittredge wrote that the constitutional reference to “undue invasion of privacy” was “ambiguous language.”
“There is no language in Article I, Section 10 of the South Carolina Constitution that supports an interpretation of a privacy right that would include an abortion right,” Kittredge wrote.
“The language ‘undue invasion of privacy’ is part of the search and seizure clause and not a separate provision,” he wrote.
The US Supreme Court’s decision overruling state abortion rights effectively left it up to the states to regulate abortion. More than a dozen states banned abortions after that ruling.
But less than two months after the ruling, Kansas voters rejected a proposed constitutional amendment that would have eliminated abortion rights in that state.
In November, Kentucky voters rejected a measure that would have denied a state constitutional right to abortion. In Michigan, voters approved the inclusion of an abortion right in that state’s constitution.