The Supreme Court of South Carolina has ruled that the state constitutional protection against “unreasonable invasions of privacy” includes a woman’s right to choose an abortion. In Planned Parenthood South Atlantic v. State of Carolina, the Court found that the Fetal Heartbeat and Protection Act violated Article I, Section 10, of the South Carolina Constitution. Enacted in 2021, the effect of the Act was to ban abortions after six weeks gestation by requiring physicians to scan for “cardiac activity” prior to allowing the right to choose an abortion. If cardiac activity was detected an abortion was prohibited. The Act provided exceptions in the circumstances of rape, incest, health of the woman, or fetal anomalies in which a pregnancy could be terminated at a later point in the gestation.

The opinion of the Court, which was authored by Justice Kaye Gorenflo Hearn (the only woman among the justices) had the support of two other justices. The five-member Supreme Court published five separate opinions with two concurrences and two dissents.

Justice Hearn’s opinion rejected the argument that because the “unreasonable invasions of privacy” was included in a provision first mentioning protection against “unreasonable searches and seizures,” the right was limited to criminal proceedings and made no mention of medical care or personal autonomy. In reaching this decision, the Court reviewed the evolution of the right of privacy stemming from an 1890 article published in the Harvard Law Review that was co-authored by the late Justice Louis Brandeis. Special attention was paid to the 1965 decision in Griswold v. Connecticut in which the Supreme Court of the United States (SCOTUS) recognized that a ban on contraceptives violated the right of marital privacy. The South Carolina Constitution was amended in 1971 to add the provision regarding “unreasonable invasions of privacy” “only six years after Griswold” and there was “no doubt that the authors of this provision were aware of Griswold and its use of the right to privacy.”

In Roe v. Wade, the SCOTUS ruled that the constitutional right of privacy extended to a woman’s decision to terminate a first trimester pregnancy. Regarding the recent overruling of Roe in Dobbs v. Jackson Women’s Services, the South Carolina court stated: “A critical part of the Dobbs Court’s justification for overruling Roe was that Roe ‘held that the abortion right, which is not mentioned in the Constitution, is part of the right to privacy, which is also not mentioned.’” Accordingly, Dobbs did not control “nor even shed light on” a decision concerning the South Carolina Constitution with its explicit inclusion of a right to privacy.

Examining the jurisprudence under South Carolina’s Constitution, the Court found that there were precedents that had held certain governmentally directed medical interventions were intrusions upon a person’s right to be secure from unreasonable invasions of privacy. However, before applying the implications of such precedents to the circumstances of a decision to terminate a pregnancy, the South Carolina Supreme Court surveyed decisions in other states with similar constitutional provisions regarding privacy. It identified ten states including South Carolina that had a specific reference to privacy in their constitutions. Not all of these had addressed whether the right to privacy applied to abortion. Five jurisdictions concluded that there was a fundamental interest in the decision to terminate a pregnancy within the scope of protected privacy. In addition to Alaska, Florida, Minnesota, Montana, and Tennessee, Washington ruled that its explicit privacy right protected “autonomous decision-making” especially regarding marriage, procreation, family relationship, child rearing, and education.

Because a fundamental right was implicated, the Court employed the standard of strict scrutiny to evaluate whether the statute violated the Constitution. It identified three interests that supported the statutory restriction on abortion: (1) the State’s interest in fetal health; (2) the State’s interest in protecting maternal health; and (3) the unborn fetus’s interest. In evaluating each of these interests, the Court paid particular attention to the maternal health interest and the legislature’s emphasis on the importance of a fetal heartbeat in a woman making an “informed choice about whether to continue a pregnancy.” It referred to the scientific literature indicating that women typically were not aware of being pregnant until around six weeks and that this was precisely the point at which the Act banned the procedure. Given the realities of learning of the pregnancy, considering her options, attempting to schedule an appointment, and complying with the statutorily mandated waiting period, “in reality, there is no ‘choice’ at all.” The interests of the fetus at this stage of the pregnancy before viability cannot displace the pregnant woman’s interest at this early stage.

While the State has an interest in fetal life and in providing women with vital medical information about their pregnancy such as the presence of a fetal heartbeat, the Court concluded that the Act’s six-week ban did not serve those interests because the Act subjected women to the ban on abortion before they even had sufficient information to make an informed choice.  Specifically, the Court wrote:

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. 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.

While joining in Justice Hearn’s opinion regarding the violation of the privacy provision, Chief Justice Beatty set forth in his concurring opinion that the Act also denied state constitutional rights of equal protection, procedural due process, and substantive due process. The challengers to the Act had raised all these contentions. In Justice Few’s concurrence, he agreed that the Act violated the prohibition of “unreasonable invasions of privacy,” but disagreed with the analysis of the other two justices in the majority with an extended discussion of the differences in approach.

Of the two dissenting opinions, the one written by Justice Kittredge was joined by Justice James. However, the remaining dissent was solely the view of its author Justice James. In confining the scope of the privacy protection of the South Carolina Constitution, the dissenters relied on the intent of the framers of the amendment to limit its scope of searches and seizures and the proposition that abortion was different from the widely accepted general right to privacy because of the presence of the unborn child.

In contrast to the South Carolina constitution, the New Jersey Constitution of 1947 does not have an explicit reference to privacy. However, the provisions of Article I, Paragraph 1 have been judicially construed to include a right to privacy. The text of that provision reads:

All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtain safety and happiness.  

In Right to Choose v. Byrne, the New Jersey Supreme Court recognized “the fundamental right of a woman to control her body and destiny.” It characterized that right as encompassing the intensely personal decision to terminate a pregnancy as one that should be made by a woman without undue government interference. The New Jersey Supreme Court expanded upon its ruling in Byrne regarding the denial of equal protection resulting from the denial of Medicaid funding with its decision in Planned Parenthood of New Jersey v. Farmer. It specifically stated that the language in the New Jersey Constitution was more expansive than the United States Constitution and “incorporates within its terms the right of privacy and its concomitant rights, including a woman’s right to make certain fundamental choices.” Accordingly, it held that New Jersey’s constitutional guarantee of equal protection was violated by the statutory classification requiring parents of a pregnant minor to be notified before an abortion could be performed, but there was no such requirement for a pregnant minor seeking other medical care for her pregnancy or her child.

Chief Justice Beatty cited the New Jersey precedent in Right to Choose v. Byrne in his concurring opinion. The recognition of a right of privacy being embodied in Article I, Paragraph 1 of the New Jersey Constitution is of significant vintage. It can be found in the 1976 opinion of In re Quinlan and even earlier under the identical provision of the Constitution of 1844 in McGovern v. Van Riper decided in 1945. While the opinion of the Court of Errors and Appeals referred to the constitutional provisions, it did not specifically mention a right of privacy. The opinion of the Chancery Court, however, was more expansive in its language:

It is now well settled that the right of privacy having its origin in natural law, is immutable and absolute, and transcends the power of any authority to change or abolish it. … It is one of the “natural and inalienable rights” recognized in article 1, section 1 of the constitution of this state.  More recently in response to Dobbs, the Legislature passed, and the Governor signed, two statutes to limit the impact of that decision. These laws provide protection to individuals who visit New Jersey seeking reproductive healthcare services as well as to the medical providers who provide them with care in New Jersey. These were the subject of a prior posting on this blog.