In a splintered majority, the South Carolina supreme court in January 2023 ruled by a 3-to-2 vote (in Planned Parenthood v. South Carolina, aka Planned Parenthood I) that the heartbeat law that the state enacted in 2021 violated the state constitutional right to privacy. As I explained, Justice John Cannon Few’s separate opinion in support of that ruling was “the most interesting, and in some respects the most puzzling, of the three” opinions issued by the members of the majority, and it even strongly suggested that he would uphold a ban on abortion from conception.
Today the South Carolina supreme court ruled by a 4-to-1 vote that the heartbeat law that the state enacted in May 2023 does not violate the state constitutional right to privacy. Justice Few joined Justice John W. Kittredge’s majority opinion, as did Justice George C. James and Justice D. Garrison Hill. Justice Hill joined the court in February, replacing Justice Kaye Gorenflo Hearn, who had voted against the 2021 law.
The state heartbeat law generally prohibits abortion after the detection of a fetal heartbeat. It provides exceptions in the event of a risk to the health of the mother, fatal fetal anomalies, rape, and incest.
1. Here is a quick summary of Justice Kittredge’s majority opinion:
In response to our decision in Planned Parenthood I, the General Assembly drafted new legislation that focused on the alleged defects in the 2021 law. In particular, it made a number of findings in support of its policy judgment, including explaining that it had taken into consideration the interests of the pregnant woman and balanced them against the legitimate interest of the state in protecting the lives of the unborn.
Planned Parenthood I does not control. The 2023 Act is materially different from the 2021 Act, as it contains different findings and purposes. The differences compel a rejection of Planned Parenthood’s reliance on stare decisis.
Even if stare decisis applied, it is not an inexorable command and has reduced force on constitutional rulings. Further, Planned Parenthood I was a highly fragmented decision in which a majority of justices clearly rejected the proposition that the privacy provision of the state constitution includes a right to an abortion.
We assume arguendo that the privacy provision extends beyond the search-and-seizure context to include bodily autonomy. But even then, it protects only against “unreasonable invasions of privacy.” So even as we grant that the 2023 Act infringes on a woman’s right of privacy and bodily autonomy, we reject the notion that it unreasonably does so. The Act is within the zone of reasonable policy decisions reasonably related to the state’s interest in protecting the unborn, and we are constrained to defer to the legislature’s policy prerogative.
2. Justice Few wrote a concurring opinion to explain that his position in this case is consistent with his position in Planned Parenthood I. In brief: One of the legislative findings in support of the 2021 Act had recited the pregnant woman’s right to make an informed choice about whether to continue a pregnancy, and Few had faulted the legislature for not addressing its failure to balance informed choice against the state’s interest in regulating abortion. (I was puzzled by his explanation in January.) The 2023 Act did not suffer from that failure.