Photo by Gayatri Malhotra on Unsplash

As state lawmakers consider abortion proposals that are more restrictive than a six-week fetal heartbeat ban now in place in South Carolina, abortion rights supporters have turned to state courts to protect women’s reproductive health through the state’s constitutional right to privacy.

“There is a reasonable expectation [in the state constitution] for the right to privacy to extend to the body and decisions about your body,” said state Sen. Brad Hutto, an Orangeburg Democrat who serves as the Senate minority leader. “A judge is going to have to sort this out.”

On Wednesday, women’s health advocates filed a state lawsuit to challenge South Carolina’s new law limiting abortions. Meanwhile on July 19, abortion supporters and opponents are expected at the Statehouse to rally for and against an all-out abortion ban that being considered by a special House committee. A similar measure with no exceptions is expected to be taken up in August by a Senate committee.

A new lawsuit focuses on an old issue – privacy

At issue now in state court is the right to privacy as it relates to abortion.

When the U.S. Supreme Court issued its landmark Roe v. Wade decision in 1973, it found an implicit constitutional right to privacy. In other words, it said the U.S. Constitution protected access to abortion because of a right to privacy. But on June 24 with the Dobbs v. Jackson Women’s Health Organization decision, it overturned the Roe precedent and sent decisions on abortion back to states.  

South Carolina, like many states, had a pre-passed law triggering more restrictive abortion rules if Roe were overturned. In 2021, the S.C. General Assembly passed Senate Bill 1 to ban abortion when a fetal heartbeat was detected, which can be as early as six weeks after conception. 

But that measure was challenged in federal court when Roe was still the law of the land. A federal judge issued an injunction to keep the law from being enacted based on the constitutional right to privacy about women’s health decisions. An appeals court upheld a challenge.

Almost immediately after the high court overturned Roe, S.C. Gov. Henry McMaster filed a motion to lift a federal injunction for the Senate Bill 1. The federal court granted the motion June 27 and the fetal heartbeat law went into effect.

Now, Planned Parenthood and other plaintiffs are asking state courts to block the new law on essentially the same grounds —the right to privacy. But the difference now is that while the U.S. Constitution’s right to privacy is implied, the state’s right to privacy is guaranteed and explicit in the state constitution.

According to Article 1, Section 10 of the S.C. Constitution (emphasis added):

The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures and unreasonable invasions of privacy shall not be violated…”

According to Planned Parenthood, the new lawsuit asks “a state trial court to block the [fetal heartbeat] law on the grounds that it violates South Carolinians’ constitutional rights to privacy and equal protection by banning abortion, by providing inadequate protections for patients’ health, and by conditioning sexual assault survivors’ access to abortion on the disclosure of their personal information to law enforcement.”

In a statement, the organization added, “While Senate Bill 1 remains in effect, South Carolinians who need care past the earliest stages of pregnancy will be forced to travel out of state, seek abortion outside the health care system, or continue pregnancies against their will.”

Jenny Black, president and CEO of Planned Parenthood South Atlantic, characterized the law as something that “cruelly denies South Carolinians the power to make their own personal medical decisions. This fight is not new to us, and we know what’s at stake: Without court intervention, South Carolinians will continue to suffer in a state with dangerously high rates of maternal mortality and infant mortality, particularly among Black women and babies. We urgently need this court to reject Senate Bill 1 for what it is: a direct assault on our health care, our lives, and fundamental human rights.”

Reactions to the lawsuit

McMaster spokesman Brian Symmes Friday said the governor was confident the new law is “constitutionally sound and will prevail in court, and he will defend it every step of the way – just like he’s done in federal court.”

S.C. Attorney General Alan Wilson’s spokesman, Robert Kittle, said, “We expected this lawsuit and are prepared to defend the state’s laws.”

State Sen. Larry Grooms, the Berkeley County Republican who was lead sponsor of Senate Bill 1, told Statehouse Report, that Planned Parenthood’s lawsuit was not a surprise.

“As red and blue legislatures are now busy working on ways to tighten or expand abortion access, it should come as no surprise that state courts are now being called upon to redraw certain battle lines,” he said. “S.C. Planned Parenthood’s actions were expected and I suspect that it may take some time before the final dust is settled.”

Hutto agreed, noting that it could take a year or two for the case to be decided. In the interim, it’s a real possibility that a state court might issue an injunction on the state’s current fetal heartbeat law limiting abortion for the same reason that the federal court did – the question of the constitutional right to privacy, but this time, the one explicitly written in the state constitution.

“In my mind, it you’re going to cover anything [with a right to privacy], it ought to cover people’s bodies, but that’s why we have judges,” Hutto said.

Former Democratic Congressman Joe Cunningham said McMaster, his opponent in the fall election, had the most extreme position on abortion in the country.

“He has openly said he wants a total abortion ban with no exceptions for rape, incest or life of the mother. He has even expressed support for charging women and doctors with crimes for seeking an abortion. 

“The fetal heartbeat bill is simply a backdoor ban which would require women to get an abortion before they even know they are pregnant. It’s a violation of a woman’s constitutional right to privacy and government overreach at its worst. When I’m governor, I will trust women to make their own healthcare choices and get politicians out of these extremely personal and private medical decisions.” 

The S.C. Republican Party did not respond to a request for comment, but S.C. Democratic Party Chairman Trav Robertson said, “Henry McMaster and his Republican Party care more about the rights of rapists and child molestors than the victims of those horrendous crimes. Henry McMaster is focused on destroying the medical freedoms of women and sending doctors to jail.”

This story also appears in Statehouse Report.

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