COLUMBIA, SC — The South Carolina Supreme Court Thursday struck down the ban on abortion after six weeks, ruling that the restriction enacted by the Deep South state violates the state’s constitutional right to privacy.
The decision marked a significant victory for abortion rights advocates who were suddenly forced to find guarantees at the state level after the United States Supreme Court struck down Roe v. Wade in June.
Without federal abortion protections, Planned Parenthood South Atlantic sued in july under the right to privacy of the South Carolina constitution. Restrictions in other states also face challenges, some like religious freedom issue.
But since the landmark high court decision in Dobbs v. Jackson Women’s Health Organization, no state court as of Thursday in South Carolina had definitively ruled whether the constitutional right to privacy, a right not explicitly enumerated in the US Constitution, extends to abortion.
“Planned Parenthood will continue to work day by day and state by state to safeguard that right for all people,” Alexis McGill Johnson, president of the Planned Parenthood Federation of America, said in a post-ruling statement.
The 3-2 decision comes nearly two years after Republican Gov. Henry McMaster signed the restriction into law, which bans abortions after heart activity is detected. The ban, which included exceptions for pregnancies resulting from rape or incest or pregnancies that endangered the patient’s life, prompted lawsuits almost immediately.
Justice Kaye Hearn, writing for the majority, said the state «undoubtedly» has the authority to limit the right to privacy that it protects from state interference with the abortion decision. But she added that any limitations must allow enough time to determine that one is pregnant and to take «reasonable steps» if she decides to terminate that pregnancy.
“Six weeks is just not a reasonable amount of time for both of these things to happen,” Hearn added.
Currently, South Carolina prohibits most abortions around 20 weeks beyond fertilization, or gestational age of 22 weeks.
On Twitter, White House spokeswoman Karine Jean-Pierre applauded the crackdown «on the state’s extreme and dangerous ban on abortion.»
“Women should be able to make their own decisions about their bodies,” Jean-Pierre added.
Various orders have given both supporters and opponents of the law cause for celebration and consternation. Those seeking abortions in the state have seen the legal window expand to the previous limit of 20 weeks before returning to the latest restrictions and vice versa.
Federal courts had previously suspended the law. But the June decision by the US Supreme Court allowed the restrictions to take hold, briefly. So the state Supreme Court temporarily blocked it last August when the judges considered a new challenge.
In South Carolina, lawyers representing the state Legislature have argued that the right to privacy should be narrowly construed. During oral arguments last October, argued that the historical context suggests that lawmakers sought to protect against searches and seizures when they ratified the right in 1971. Planned Parenthood lawyers representing the challengers have said that the right to privacy encompasses abortion. They argued that previous decisions by the state Supreme Court already extended the right to bodily autonomy.
Chief Justice Donald Beatty and Justice John Cannon Few joined Hearn in the majority. Justice George James, Jr., wrote in a dissenting opinion that the right to privacy protects only against searches and seizures. Judge John Kittredge wrote separately that the state constitution protects privacy rights beyond searches and seizures, but it did not apply in this case.
Multiple justices stressed that Thursday’s ruling addressed only legal issues and rejected the political aspects of the debate.
The judges’ limited ruling left the door open for future changes. The state House of Representatives and Senate failed to agree last summer on additional restrictions during a special session on abortion. Still, a small but growing group of conservative lawmakers has vowed to push that envelope yet again this legislative session, despite earlier insistence by some Republican leaders that no deal is possible.
In a statement to The Associated Press, South Carolina Democratic Party Chairman Trav Robertson applauded the ruling as «a voice of reason and sanity to moderate Republican legislative actions to dispossess women and men.» doctors of their rights”.
Republicans, led by the governor, vowed on Thursday to press ahead with further attempts at restrictions. McMaster, who will soon assume his last full term, indicated that a new abortion measure will be a priority when the legislature meets next week.
“With this opinion, the Court has clearly exceeded its authority,” McMaster’s statement said. “People have spoken through their elected representatives multiple times on this issue. I look forward to working with the General Assembly to correct this error.”
The Republican Speaker of the South Carolina House of Representatives, G. Murrell Smith, Jr., tweeted that state judges created «a constitutional right to abortion where it does not exist.» Smith echoed Justice Kittredge by adding that the decision did not uphold the separation of powers.
In a dissenting opinion, Kittredge warned against leaving it to the judiciary to resolve what he said is a «political dispute.»
“Our legislature has made a policy decision regulating abortions in South Carolina. The determination of legislative policy, contained in the Act, gives priority to the protection of the life of the unborn,” Kittredge wrote.
Abortion access advocates on Thursday doubled down on their opposition to any new restrictions in anticipation of further legislative debate.
Democratic Minority Leader in the South Carolina House of Representatives, Todd Rutherford, said any continuation of the Republicans’ “war on women” is a deliberate waste of taxpayer money.
And standing shoulder to shoulder in front of Palmetto State Superior Court Thursday afternoon, advocacy groups held what they called an «injunction.»
“This is a monumental victory in the movement to protect legal abortion in the South,” Planned Parenthood South Atlantic President Jenny Black said in an earlier statement. «Planned Parenthood South Atlantic and our partners will continue our fight to block any bill that allows politicians to interfere in people’s private health care decisions.»