South Carolina Supreme Court Upholds Heartbeat Abortion Ban

In Planned Parenthood South Atlantic v. State (Planned Parenthood II), the South Carolina Supreme Court was asked whether a state law banning abortion after the detection of a fetal heartbeat violated the state’s constitution.[1] The court, in a 4-1 decision authored by Justice John Kittredge, held that the abortion ban did not violate article I, section 10, of the South Carolina Constitution, which prohibits “unreasonable invasion[s] of privacy.”[2]

This opinion follows closely behind a fractured decision from the court in January 2023, which held that a prior version of South Carolina’s fetal heartbeat law was unconstitutional.[3] In Planned Parenthood South Atlantic v. State (Planned Parenthood I) three out of five justices agreed that the state constitution contained no right to an abortion, but the court still found the fetal heartbeat law unconstitutional.[4] Notably, one member of the 3-2 majority, Justice John Cannon Few, concurred with the majority only in result and wrote separately in that case. In his view, the South Carolina General Assembly’s failure to consider whether the abortion ban provided enough time for a woman to know she was pregnant and exercise a meaningful choice rendered the ban an unreasonable invasion into a woman’s privacy.[5] 

Following the court’s decision in Planned Parenthood I, the General Assembly revised the fetal heartbeat law.[6] In the revised version, the General Assembly included several new legislative findings and purposes, including a finding that placed great weight on a woman’s ability to learn of her pregnancy within seven to fourteen days after conception.[7]

After Governor McMaster signed the revised bill, Planned Parenthood South Atlantic and three other abortion providers sued to enjoin enforcement of the new law.[8] After a lower court temporarily enjoined the law pending the outcome of the constitutional challenge, the South Carolina Supreme Court agreed to hear the challenge on an expedited basis.[9]

In the majority opinion, the South Carolina Supreme Court held that the revised fetal heartbeat law did not violate article I, section 10, of the South Carolina Constitution because it was not an unreasonable intrusion into a woman’s right to privacy.[10]

The majority began by addressing preliminary principles that guided the court’s decision.[11] First, the court emphasized that its role was not to second guess the policy judgments of the General Assembly and that the court would give deference to legislative findings and apply a presumption of constitutionality when analyzing constitutional challenges.[12]

Second, the court rejected arguments that stare decisis compelled it to reach the same outcome it did in Planned Parenthood I.[13] The new law, the court explained, had different legislative findings and removed a reference to “informed maternal choice,” striking a new balance between the interests of the mother and those of the unborn child.[14] Additionally, stare decisis has less force in constitutional challenges to statutory schemes subject to change by the General Assembly, particularly where, as here, the prior decision was so fragmented.[15]

Turning to the merits, the majority proceeded to analyze the revised law under article I, section 10, which protects against “unreasonable invasion[s] of privacy.”[16] The court reaffirmed its holding in Planned Parenthood I that the South Carolina Constitution does not contain a fundamental right to abortion, but assumed for this case that article I, section 10, reached far enough to protect bodily autonomy.[17] A restriction on a woman’s ability to terminate a pregnancy, the court conceded, was an invasion of privacy.[18] Even so, the court explained, article I, section 10, only prohibits unreasonable invasions of privacy.[19] Thus, the key question before the court was whether the General Assembly’s policy choice was reasonable.[20]

Here, the court, emphasizing that its role was judicial not policymaking, could not conclude that the General Assembly’s balancing of interests was unreasonable.[21] The new law, the court observed, reflected a thoughtful consideration of the interests of the mother and the unborn child and struck a balance between them that the court would not second guess.[22] Accordingly, the court vacated the lower court’s injunction and held that the new fetal heartbeat act was constitutional.[23]

Justice Few again wrote a separate opinion explaining his analysis of the issues before the court.[24] He reiterated the majority’s view that the decision was a function of separation of powers and that the court owed appropriate deference to the branch of government tasked with making policy decisions for the people of South Carolina.[25]  For Justice Few, it was key that the General Assembly seriously attempted to comply with the concerns raised in Planned Parenthood I in a non-arbitrary way.[26] Even though the policy outcome was more or less the same, the General Assembly considered several aspects of the problem that were persuasive to Justice Few, namely the time before a woman could learn she was pregnant and the availability of emergency contraception.[27]

The sole dissenter, Chief Justice Donald Beatty, wrote a lengthy opinion highlighting his disagreements with the majority’s opinion.[28] Primarily, Chief Justice Beatty criticized the majority for disregarding Planned Parenthood I.[29] In his view, stare decisis compels the same result when the court is asked to review a law virtually identical to one it previously held unconstitutional.[30] Changes in the General Assembly’s legislative findings, he argued, did not materially alter the fetal heartbeat law.[31] Thus, for Chief Justice Beatty, the new fetal heartbeat law had the same constitutional defects as the old version and should have been pronounced unconstitutional.[32]

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].