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South Carolina Constitution Includes Abortion Right, State Supreme Court Rules

The South Carolina Constitution provides a right to privacy that includes the right to abortion, the state’s Supreme Court ruled on Thursday, saying “the decision to terminate a pregnancy rests upon the utmost personal and private considerations imaginable.”

The decision overturns the state’s law banning abortions after roughly the sixth week of pregnancy. More broadly, it is a victory for abortion rights in the South, where states have severely restricted access.

It is the first final ruling by a state Supreme Court on the state constitutionality of abortion since the U.S. Supreme Court overturned Roe v. Wade in June, which ended the right to abortion under the federal constitution that had been in force for half a century, and left the matter to the states.

Abortion rights groups responded to that decision by filing suits in 19 states, seeking to establish a right to abortion under state constitutions, in many cases citing explicit provisions in those documents protecting a woman’s privacy and equal rights. The South Carolina case was a critical first test — and success — for that strategy.

“This is a monumental victory in the movement to protect legal abortion in the South,” said Jenny Black, the president of Planned Parenthood South Atlantic, which was among the groups that filed the case.

The five justices ruled 3-2 that a state ban on abortions after roughly six weeks of pregnancy violated a provision in the state constitution which says 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.”

Even so, the court’s majority said that the right to abortion “was not absolute, and must be balanced against the State’s interest in protecting unborn life.”

The Republican-controlled state legislature may try to test what that means by passing other restrictions on abortion later in pregnancy, but it will be limited by the court’s new broad protection for abortion.

The state’s attorney general, Alan Wilson, said in a statement that he was working with the governor’s office to review “all our available options moving forward.”

“We respectfully, but strongly, disagree with the Court’s ruling,” he said.

The ruling in South Carolina will not necessarily translate to other states, given the differences in the makeup of their courts and the language of their constitutions.

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Still, it was a significant decision in the post-Roe world, and one that will help shape the arguments as cases proceed in other states.

Abortion rights advocates argue that once some states begin recognizing a constitutional right to abortion — either because of court decisions like this one or because of the outcomes of ballot initiatives like those in Kansas and Michigan last year — others will follow.

The South Carolina case concerned a law passed by the state legislature in 2021, which banned abortion after fetal cardiac activity is detected, typically around six weeks of pregnancy, with exceptions for pregnancies caused by rape or incest, or that threaten the mother’s life. Federal courts had blocked the law because of the Roe protections. It took effect shortly after Roe was overturned, but several weeks later the state’s Supreme Court unanimously blocked it again, while the litigation proceeded.

Since the Supreme Court’s decision overturning Roe v. Wade, the South Carolina legislature has attempted, but has so far failed, to pass a stricter ban.

The decision by the state’s highest court almost certainly blocks that effort, and leaves only limited options. State appeals are exhausted. Officials could try to amend the state constitution to explicitly rule out any provision for abortion rights, though attempts to do that have failed in states like Kansas.

“We know that lawmakers will double down on their relentless efforts to restrict essential health care, but we will continue to use every tool at our disposal to restore abortion access across the country once and for all,” said Nancy Northup, president of the Center for Reproductive Rights, another of the groups that filed suit.

Carol Tobias, president of the National Right to Life Committee, said she was surprised and disappointed at the South Carolina ruling. The privacy protections in the South Carolina Constitution, she argued, were not designed to protect abortion access.

The South Carolina justices noted in their opinion that other state constitutions include a similar right to privacy. And while they recognized that the language in the South Carolina provision does not explicitly mention abortion, they said that such a right could be reasonably extended, based on history and previous court decisions. They rejected arguments by lawyers for the state legislature and the attorney general that the privacy provision applied only to “search and seizure.”

On Twitter, the speaker of the South Carolina House, Murrell Smith, criticized the state Supreme Court for going against the decision of the U.S. Supreme Court to return full control of abortion rights to state legislatures.

“Unfortunately, the South Carolina Supreme Court followed the path of the U.S. Supreme Court in Roe v. Wade by creating a constitutional right to an abortion where none exists,” he wrote. “Today’s decision fails to respect the concept of separation of powers and strips the people of this state from having a say in a decision that was meant to reflect their voices. Instead, South Carolina is left with a decision that is not reflective of our state’s political process or will.”

The court’s decision was especially striking for a state with a history of conservative politics. The justices noted that South Carolina lagged well behind other states in granting rights to women: it waited more than 50 years after the ratification of the 19th Amendment to officially certify its provisions granting women the right to vote, and it was the second-last state — roughly a century after some Western states and ahead of only Mississippi — to permit women to serve on juries.

The attorney general and lawyers for the legislature had tried to argue against the right to abortion by citing the work of a landmark legislative committee from the mid-1960s that overhauled the state constitution. That committee had recommended allowing literacy tests for voters — even though a federal law, the 1965 Voting Rights Act, had just banned them — as well as maintaining language forbidding interracial marriage.

In their decision on Thursday, the justices noted that the committee had included not a single woman. “We cannot relegate our role of declaring whether a legislative act is constitutional by blinding ourselves to everything that has transpired since,” they wrote.

Decisions under state constitutions have the potential to protect abortion access more broadly than Roe v. Wade did when it was decided in 1973.

While the Roe decision found a right to privacy in various provisions of the Constitution, that right was implied, not explicitly stated. That opened the door to decades of criticism, mostly from conservatives, that it was incorrectly decided.

Writing for the majority in Dobbs v. Jackson Women’s Health Organization, the case that overturned Roe in June, Justice Samuel A. Alito wrote that the privacy right was “not mentioned” in the Constitution. Even the late Justice Ruth Bader Ginsburg, one of the court’s liberals and a champion of abortion rights, said that she thought the right to abortion would have been better ensured under the Constitution’s explicit guarantee of equal protection under the law.

Roe prohibited states from banning abortion before a fetus was viable outside the womb, or roughly 24 weeks. The Dobbs decision returned full authority to regulate abortion to state legislatures. Roughly half the states had bans or other restrictions — some of them more than a century old — already on their books that took effect once Dobbs was decided.

Unlike the federal constitution, many state constitutions explicitly mention a right to privacy. In South Carolina, voters approved an amendment in 1971 that established protections against “unreasonable invasions of privacy.”

In oral arguments in October, lawyers for the abortion providers who sued argued that the provision protected a woman’s right to make her own health care decisions, including whether to have an abortion.

The justices asked whether agreeing with the abortion providers would oblige them to set a new gestational limit on abortions, or would result in no limits on abortion. They worried about how far the right to privacy would have to extend: Would it protect bigamy? Polygamy? Assisted suicide?

Julie Murray, a senior staff attorney for Planned Parenthood, agreed that the right to privacy was not absolute. But she noted that in 1993, the court ruled that under the privacy provision, an inmate on death row had a right to bodily autonomy that prevented the state from forcing him to take medication that would make him “competent” enough to be executed. That autonomy, she said, should reasonably extend to women who are six weeks pregnant.

Six weeks, she said, was before many women know they are pregnant. “Whether it takes you 10 days or a month to figure that out, that’s a decision that should be left to women,” Ms. Murray argued.

The decision on Thursday suggested that the justices were sympathetic to that argument, noting that the state’s ban at six weeks “in many instances completely forecloses” the option of an abortion.

The justices are officially nonpartisan, but are elected to 10-year terms by the state’s general assembly, which is controlled by Republicans.

Justice Kaye Hearn, who wrote the opinion issued Thursday, is the only woman, and the second woman to serve on the court. Chief Justice Donald Beatty, the second Black justice elected since Reconstruction, joined her in the opinion along with Justice John C. Few.

Justice Hearn seemed to indicate some sympathy toward the abortion providers during oral arguments. She noted that the plaintiff’s side of the courtroom was all female and the state’s side was all male. Most women who are pregnant at six weeks do not want anyone to know, she said, and many women do not want anyone to know if they have had an abortion.

“I know you’re not a woman,” she told a lawyer for the state government. “But what could be more personal than that decision?”

Ava Sasani contributed reporting.

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