The South Carolina Supreme Court has struck down the state’s ban on abortions performed after a fetal heartbeat is detected—typically at around six weeks gestation—ruling that the law violates the right to privacy as outlined in the South Carolina Constitution.
The 3-2 decision, handed down Jan. 5, came nearly two years after Republican Gov. Henry McMaster signed the Fetal Heartbeat and Protection from Abortion Act into law.
“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.”
In defending the ban, lawyers for the state legislature argued that the right to privacy should be narrowly interpreted as a protection against searches and seizures. However, attorneys for Planned Parenthood, the plaintiffs in the case, challenged that the right to privacy also encompasses bodily autonomy and the decision to have an abortion.
While conceding that the state has the authority to limit the right to privacy, the court held Thursday that such limitations must be reasonable and afford enough time for a woman to not only determine that she is pregnant but also “take reasonable steps to terminate that pregnancy.”
“Six weeks is, quite simply, not a reasonable period of time for these two things to occur, and therefore the Act violates our state Constitution’s prohibition against unreasonable invasions of privacy,” Hearne wrote.
Responding to the ruling Thursday, South Carolina Democratic Party Chairman Trav Robertson praised the court’s decision as “a voice of reason and sanity to temper the Republicans’ legislative actions to strip rights away from women and doctors.”
Republicans like McMaster, however, slammed the decision as an act of judicial overreach.
An Embattled Law
When McMaster signed the law in February 2021, he celebrated the moment as a historic victory for life.“Today, we made history,” the governor said. “The Heartbeat Bill is now the law of South Carolina and we will defend it with everything in us because there is nothing more important than protecting the sanctity of life!”
The act was not a complete ban in that it allowed exceptions for pregnancies that were caused by rape or incest or those that were deemed a threat to the life of the mother.
“The Court finds that Plaintiffs have established a substantial likelihood of success on the merits of their claim that the Act violates the substantive due process rights of Plaintiffs’ patients to previability abortion, as guaranteed by the U.S. Constitution’s Fourteenth Amendment,” U.S. District Judge Mary Geiger Lewis wrote in issuing the temporary restraining order.
South Carolina law recognizes fetal viability at 24 weeks gestation.
“The Supreme Court has held that a state may not ‘prohibit any woman from making the ultimate decision to terminate her pregnancy before viability,’” she added.
New Legislation
In September, while the current law remained on hold, the state legislature considered a new heartbeat bill, HB 5399, that would effectively amend the Fetal Heartbeat Protection From Abortion Act to require exceptional abortions due to rape and incest to occur by around 12 weeks gestation, as opposed to the previous 20-week limit. The bill would also require diagnoses from two doctors—an increase from the current one—for an abortion to be obtained due to a fetal anomaly.That bill ultimately died, however, as Republicans in the House preferred a near-total abortion ban from conception while their colleagues in the Senate were not willing to go that far.
While members of both chambers will have an opportunity to revisit the issue in the new legislative session, they will now have to do so with the court’s ruling in mind.
In the meantime, a 2016 law is still in effect that bans abortions in the state after 20 weeks gestation, save for instances where the mother’s life is endangered or there is a fetal anomaly.
