In a ruling reminiscent of the now-obsolete Roe v. Wade decision, the South Carolina Supreme Court has ruled that a six-week abortion ban violated the state Constitution — but pro-life activists still have hope for future legislation and potentially getting the decision overturned.

The narrow 3-2 decision, released on Jan. 5 and authored by outgoing Justice Kaye Gorenflo Hearn, concluded that the state Constitution’s right to privacy extends to abortion decisions. Although the court recognized that the state could put some limits on abortion, it ruled that the heartbeat bill, which bans abortions after six weeks of pregnancy, is an unreasonable limit.

The ruling did not clearly indicate what type of legislation would be reasonable, per the court’s standards. Because of the ambiguity, some pro-life activists believe they could have more success with other pro-life bills. There is also optimism that the ruling could be overturned because Hearn has reached the mandatory retirement age and lawmakers will have the opportunity to replace her as early as February.

Hearn’s decision asserted that a woman needs to be given more time after discovering she is pregnant to decide whether she wants to continue the pregnancy or have an abortion.

“The state unquestionably has the authority to limit the right of privacy that protects women from state interference with her decision, but any such limitation must be reasonable, and it must be meaningful, in that the time frames imposed must afford a woman sufficient time to determine she is pregnant and to take reasonable steps to terminate that pregnancy,” Hearn wrote for the majority opinion. “Six weeks is, quite simply, not a reasonable period of time for these two things to occur.”

According to the ruling, women normally do not know they are pregnant until about six weeks into pregnancy, which means the law would prevent them from making an informed decision about whether to continue the pregnancy or end it. The ruling states that the law would allow for no choice at all and would be an intrusion into a woman’s private considerations, which implicate her right to privacy.

‘Beyond Disappointed’

The logic behind the ruling was similar to the Roe decision in the early 1970s, which also based its conclusion on a right to privacy. However, unlike the U.S. Constitution, the South Carolina Constitution explicitly protects a privacy right by prohibiting “unreasonable invasions of privacy.”

South Carolina’s right to privacy was not originally in the state Constitution; it was adopted via a constitutional amendment more than two years before Roe was decided. It was proposed by and ultimately adopted based on the recommendations of the West Committee, which was a committee formed to consider amendments to the state Constitution. The committee’s notes, however, were primarily focused on privacy related to electronic surveillance and made no mention of abortion, bodily autonomy or medical decisions. Regardless, Hearn wrote that the committee was made aware of the right to privacy being used to protect contraception in the U.S. Supreme Court’s 1965 Griswold v. Connecticut decision. She ultimately disregarded the West Committee notes entirely, stating that they are “irrelevant to the question before us today.”

Holly Gatling, the executive director of South Carolina Citizens for Life, told the Register that the organization is “beyond disappointed” in the ruling and expressed disagreement with the court’s justification.

“The effect of the decision will be to favor the economic interests of the abortion industry over the lives of unborn children,” Gatling said. “We disagree with the majority opinion, that the right to privacy was intended to relate to abortion. The state Constitution was amended in 1970 to protect the rights of citizens to privacy regarding banking records, phone records and that sort of thing. Roe v. Wade was not passed until 1973. The pre-Roe abortion law in South Carolina prohibited abortion except in the rarest of circumstances.”

South Carolina Citizens for Life was established in 1974, which was just one year after Roe was decided. Gatling said the purpose of the organization is to restore legal protection to the unborn and that the group will work to pass every law it can to save every life until South Carolina passes the Human Life Protection Act, which would give legal protection to the unborn at every stage of development.

Reasons for Optimism

The heartbeat bill overwhelmingly passed the Republican-controlled South Carolina General Assembly in 2021. The Senate passed the bill on a 30-13 vote, and the House passed it shortly thereafter on a 74-39 vote. It was promptly signed by Gov. Henry McMaster.

Following this month’s court ruling, the governor said he intends to work with the state Legislature to “correct this error” from the court.

“Our state Supreme Court has found a right in our Constitution which was never intended by the people of South Carolina,” McMaster said. “With this opinion, the court has clearly exceeded its authority. The people have spoken through their elected representatives multiple times on this issue.”

In the 2022 elections, South Carolina voters reelected a strong pro-life majority to both the House and the Senate. The Register reached out to House and Senate leadership but did not hear back by the time of publication.

Michael New, an associate scholar at the pro-life Charlotte Lozier Institute and political science professor at The Catholic University of America, told the Register that there are two reasons pro-life advocates should be optimistic about future pro-life legislation in South Carolina.

First, New referenced Judge John Cannon Few’s concurring opinion, which states that the court’s decision did not recognize a broad right to abortion in the state Constitution, but only states that women must have an opportunity to make a meaningful choice. New said it is possible that Few would uphold a law that set a later limit or even reconsider the six-week limit if lawmakers engaged the question of when most women know they are pregnant.

Secondly, New said Hearn’s upcoming retirement provides the South Carolina Legislature with an opportunity to replace her with someone “more sympathetic to legal protections for preborn children.” Yet he noted that this is not guaranteed. In South Carolina, the Supreme Court nominees are selected from a judicial nominating commission, and the top three candidates are presented to the legislature to choose from.

“Though sometimes the process results in the selection of moderate judges,” New added, “the South Carolina legislators will likely want to select a justice sympathetic to pro-life laws.”

South Carolina Citizens for Life plans to take an active role in supporting pro-life candidates to replace Hearn, according to Gatling. She said the organization will lobby for judges “whose judicial philosophy acknowledges the intrinsic value of all human life, from conception to natural death.”

Other State Restrictions Heading to Court

After the U.S. Supreme Court overturned Roe last June, more than a dozen states imposed strict abortion restrictions or began enforcing restrictions that were already on the books. Numerous pro-life laws faced legal challenges, which yielded mixed results for pro-life advocates across the country.

The right-to-privacy argument is not unique to South Carolina. The Florida Supreme Court ruled that the state Constitution’s right to privacy protected a right to abortion on Oct. 5, 1989. Since Roe was overturned, Florida passed a ban on abortions after 15 weeks, but that law is currently tied up in the courts.

“[It’s] lawmaking from the bench,” Katie Glenn, the state policy director for Susan B. Anthony Pro-Life America, told the Register.

Similarly to South Carolina, Glenn said Florida’s constitutional amendment to protect a right to privacy had nothing to do with abortion policy. She said the amendment was introduced after the Watergate scandal, and nothing in the text nor the history indicate that those who drafted the amendment thought they were ensuring a right to abortion.

The same argument was attempted in Idaho; however, it had different results. On the same day that South Carolina’s Supreme Court ruled that its right to privacy guaranteed a right to abortion, the Idaho Supreme Court did the opposite. According to the Idaho Supreme Court, the drafters never intended for the right to privacy to be intended to support a right to abortion. The majority opinion noted that the court consistently tries to interpret the plain text of the law.

Some other state pro-life bills are still stuck in the court system, Glenn noted. She said lawsuits over state laws can sometimes take between three and five years before they are settled. A lawsuit over Kentucky’s abortion restrictions might be the next one decided, according to Glenn.

New noted that even in states that have had unfriendly rulings on pro-life laws, pro-lifers have sometimes been able to reverse that precedent.

“Pro-lifers in other states have succeeded in reversing judicial rulings sympathetic to legal abortion,” New said. “In 2018, Iowa’s Supreme Court issued a ruling protecting the legality of abortion. However, in subsequent years, pro-lifers succeeded in nominating new judges to the state Supreme Court. In 2021, the court overturned the 2018 ruling protecting abortion rights.”