South Carolina’s “Fetal Heartbeat and Protection from Abortion Act” Violates the SC Constitution’s Right to Privacy

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In the most recent intersection of law, science, and radical religion, the SC Supreme Court held on January 5 in Planned Parenthood v. SC that SC’s “Fetal Heartbeat and Protection from Abortion Act” (hereinafter the “Fetal Heartbeat Act”) is unconstitutional and violates the express right to privacy found in SC Constitution Article 1, Section 10.

The opinion is 147 pages long. Every justice wrote their own opinion, with three agreeing that the law is unconstitutional and two dissents that would have upheld the law.

You should read it. But, if you just don’t have time and would like to know what the heck is going on with abortion rights (women’s rights) in South Carolina, I’ve provided an outline below of each justice’s opinion.

The decision is based on SC’s express right to privacy and not federal law (since the US Supreme Court has already declared that there is no implied federal right to privacy that would protect a woman’s right to seek an abortion).

The “Majority Opinion”

Justice Hearn, the only female on the SC Supreme Court, provides the majority opinion:

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. 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.

Technically, it’s not a “majority opinion,” but the three justices who found the Fetal Heartbeat unconstitutional agree that the law violates SC’s right to privacy.

Justice Hearn also explains why the language used by the legislature in the Fetal Heartbeat Act is misleading, confusing, and contradicts the scientific consensus. For example:

  • Most women do not know that they are pregnant at six weeks, which makes the Fetal Heartbeat Act a de-facto ban on almost all abortions,
  • Although the legislature uses the term “fetus” to describe a pregnancy beginning with fertilization, the scientific community uses the terms “blastocyte” to describe fertilization through three weeks, “embryo” to describe up to eight week’s gestation, and “fetus” to describe eight to forty weeks gestation, and
  • The legislature refers to a “heartbeat” at six weeks gestation, but the “overwhelming consensus” of the scientific community is that, at six weeks gestation, you can hear only “an electrical flickering occurring prior to the development of any chambers of the heart.”

Should our laws be based on science or religion?

Despite the opinion of many in the SC legislature that our state and nation should be a Christian theocracy, it is not. The laws that we impose on one another must be based on science and reason, not superstition or any particular religion.

Chief Justice Beatty’s Opinion on the Fetal Heartbeat Act

Chief Justice Beatty has the radical opinion “that our state constitution grants every South Carolinian a right to privacy, equal protection, and due process of laws.”

Even women, apparently.

Incredible. Here’s what else he had to say:

Privacy has no meaning if we fail to limit how closely the state may regulate our personal, medical, intimate, and moral decisions…

Misinformation is pervasive in the abortion debate. Misinformation has influenced
public opinion and fanned the flames of hostility in this very sensitive discussion. I
will not willingly participate in the perpetuation of misinformation. I stand by efforts
to be better informed on the true issues before the Court. Men do not get pregnant.
Now back to the task at hand…

…a restriction at this early stage of pregnancy is, for all practical purposes, the equivalent of a de facto ban on abortion. It effectively usurps a woman’s authority to make medical decisions regarding her reproductive health, including the decision whether to have children, and places this power, instead, solely in the hands of a political body. While government officials have assumed the role of overseer of a woman’s reproductive health, it is troubling that the woman who is tasked with the burden of pregnancy, its associated health risks, and its lifetime of financial and emotional impacts, would no longer have a voice in this important and very personal decision. Further, even assuming that a woman’s right to control her reproductive health decisions at this early stage is subject to the vote of a political body (a question that must be decided today), it is particularly concerning when considering the fact that the law has been enacted by a political body that is overwhelmingly comprised of men…

I conclude, first, that the Act, as passed, is void ab initio. Second, the Act violates the right against unreasonable invasion of privacy. Third, the Act violates equal protection. Fourth and finally, the Act denies both the procedural and substantive guarantees of due process. Therefore, the Act violates the South Carolina Constitution beyond a reasonable doubt…

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.

Justice Few’s Opinion on the Fetal Heartbeat Act

Justice Few does not agree with Justice Hearn’s or Chief Justice Beatty’s opinions but concurs with the result that the Fetal Heartbeat Act violates the SC Constitution.

What is disturbing is that, while finding that the six-week ban is unconstitutional, Justice Few implies that he would find a total ban on abortion constitutional:

Had H. 5399 become law, the State may have had a good argument there is no countervailing interest that could render unreasonable the State’s use of a total ban on abortion to protect human life from the point of conception. In other words, if the State were to pass a total ban on abortion—despite a complete invasion of a pregnant woman’s right to privacy—the privacy invasion might be reasonable under article I, section 10, because “human life” has no countervailing interest; human life simply must be preserved. But the General Assembly failed to pass the personhood bills, and this year the Senate refused to pass H. 5399. S. Journal, 124th Leg. Sess., at ____ (S.C. Oct. 18, 2022). Thus, despite consistent efforts, there is no legislative policy determination that human life —”personhood”—begins at conception, and there is no such State interest that justifies enacting the six-week bill.

Justice Kittredge’s Opinion on the Fetal Heartbeat Act

Justice Kittredge justifies his decision that SC’s right to privacy does not encompass abortion rights by explaining that SC’s right to privacy only applies to searches and seizures in the criminal context (despite previous SC Supreme Court opinions applying the right to privacy in medical contexts):

…there is no language in article I, section 10 of the South Carolina Constitution that supports an interpretation of a privacy right that would encompass a right to abortion. The “unreasonable invasion of privacy” language is part of the search and seizure clause and is not a standalone provision.

Justice Kittredge also emphasizes the importance of “what the framers intended:”

This review will shed light on what the “framers” intended and, significantly, whether one may reasonably conclude that a right to abortion is included as a privacy right.

This echoes a common argument when it comes to constitutional questions – should we only interpret the SC and US Constitutions as protecting rights that the Framers intended to protect?

  • Does the Fourth Amendment apply to electronic communication devices and other technology? The Framers certainly didn’t intend this, since they had no idea what types of technology would be invented in their future and how it would impact privacy interests.
  • Does the Constitution protect the rights of non-whites? As with other laws passed in the early states and federal government, the US and SC Constitutions were intended to protect the rights of white men only and to preserve the status quo of slavery and white supremacy.
  • Does the Constitution protect the rights of women? The text of the original Constitution, written and voted on by white men, did not intend to provide rights to women of any race, even the right to vote or sit on a jury.

When Justices argue that the Constitution only protects the rights that the Framers intended, are they really saying they would like to return to a time when black human beings and women of any color were considered the property of white men? That any interpretation of the Constitution that would protect the rights of non-whites and women is invalid?

Justice Kittredge believes that abortion is a moral and policy issue, that the privacy rights of women (unless it is a search and seizure issue) are not protected by the SC Constitution, and that the Court has no business second-guessing the legislature:

Abortion presents an important moral and policy issue. The citizens, through their duly elected representatives, have spoken. The South Carolina legislature, not this Court, should determine matters of policy.

Justice James’ Opinion on the Fetal Heartbeat Act

Justice James agrees with Justice Kittredge that the SC Constitution’s explicit right to privacy only applies to search and seizure cases, and he would overrule any SC appellate opinion that has held otherwise:

However, when I put aside any personal preferences and review the issue under South Carolina law, I conclude a citizen’s right to be free from unreasonable invasions of privacy does not extend beyond the context of searches and seizures. Unlike the majority, I believe the intent of the West Committee, the General Assembly, and the people should factor into our decision in this case. As for South Carolina caselaw citing article I, section 10, I would overrule or modify the few decisions that directly or impliedly extend the privacy provision beyond the context of searches and seizures.

Justice James also believes that we must interpret the Constitution in light of the white male Framers’ intent (note that South Carolina did not ratify the Nineteenth Amendment giving women the right to vote until 1969):

As I will explain, the scope of article I, section 10 is ambiguous, or “of doubtful import.” Id. Therefore, we must consider the history of the late 1960s and early 1970s in South Carolina; the intent of the framers of article I, section 10; and the intent of the people who adopted article I, section 10.

What’s next?

Radical religious elements in the SC legislature will likely continue attempting to outlaw all abortions in their continuing efforts to 1) force us all to comply with the tenets of their religion and 2) take our state back to the Middle Ages in terms of racial and gender equality.

Since Justice Few all but invited the legislature to pass a total ban and implied that he would approve it, and he appears to be the swing vote on this issue, we can expect modified versions of the Fetal Heartbeat Law (even a total ban) to be pushed through the legislature in the coming months or years.

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