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Case Number: 2022-001062
Court: Supreme Court of South Carolina (Richland County)
Plaintiff's Attorney: M. Malissa Burnette, et al.
Defendant's Attorney: Alan McCrory Wilson, et al.
Description: Columbia, South Carolina civil rights lawyers represented Plaintiffs, who sued Defendant claiming that the The Fetal Heartbeat and Protection from Abortion Act ("the Act") enacted by the State of South Carolina violated a a woman's constitutional right to privacy, as guaranteed in article I, section 10 of the South Carolina Constitution.
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In 2021, the General Assembly passed the Act, which prohibits an abortion after around six weeks gestation. See S.C. Code Ann. § 44-41-680 (Supp. 2022). This is before many women—excluding those who are trying to become pregnant and are therefore closely monitoring their menstrual cycles—even know they are pregnant. See Amici Curiae Br. of Am. Coll. of Obstetricians & Gynecologists, et. al. The Act requires physicians to scan for "cardiac activity…within the gestational sac[,]" record the results, and ask the patient if she would like to listen. See S.C. Code Ann. §§ 44-41-610 and 44-41-640. If the defined activity2 is detected, abortion is prohibited.3 Physicians who violate the Act must pay a ten-thousand dollar fine and face imprisonment of up to two years. S.C. Code Ann. § 44-41-680. In passing this legislation, the General Assembly made these findings: (1) as many as thirty percent of natural pregnancies end in spontaneous miscarriage; (2) fewer than five percent of all natural pregnancies end in spontaneous miscarriage after the detection of a fetal heartbeat; (3) over ninety percent of in vitro pregnancies survive the first trimester if a fetal heartbeat is detected; (4) nearly ninety percent of in vitro pregnancies do not survive the first trimester if a fetal heartbeat is not detected; (5) a fetal heartbeat is a key medical predictor that an unborn human individual will reach live birth; (6) a fetal heartbeat begins at a biologically identifiable moment in time, normally when the fetal heart is formed in the gestational sac; (7) the State of South Carolina has legitimate interests from the outset of a pregnancy in protecting the health of the pregnant woman and the life of the unborn child who may be born; and (8) in order to make an informed choice about whether to continue a pregnancy, a pregnant woman has a legitimate interest in knowing the likelihood of the human fetus surviving to full-term birth based upon the presence of a fetal heartbeat. South Carolina Fetal Heartbeat and Protection from Abortion Act, Act No. 1, 2021 S.C. Acts 2, 3 §2. Petitioner Planned Parenthood South Atlantic is a non-profit organization dedicated to providing a wide range of medical care, including therapeutic options to terminate a pregnancy. Petitioners Katherine Farris and Terry Buffkin are physicians and abortion providers working in South Carolina. Both parties filed petitions in our original jurisdiction, and this Court granted Petitioners' request.4 We subsequently granted Petitioners' request for a temporary injunction to enjoin enforcement of the Act pending the Court's resolution of the merits. Petitioners raise numerous legal theories as to why the Act fails, but we limit our review to the privacy argument under the South Carolina Constitution. Respondents disagree that the Act is unconstitutional, citing to years of abortion restrictions and the language of the recent decision of the Supreme Court of the United States in Dobbs v. Jackson Women's Health Organization, 142 S. Ct. 2228 (2022). While we set forth our holding in full below, we agree with Petitioners that the Act constitutes an unreasonable invasion of privacy, and thus is unconstitutional under article I, section 10 of the South Carolina Constitution.
Outcome: We hold that our state constitutional right to privacy extends to a woman's decision to 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. 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. BEATTY, C.J., concurring in a separate opinion, FEW, J., concurring in result only in a separate opinion, KITTREDGE, J., dissenting in a separate opinion, JAMES, J., dissenting in a separate opinion and concurring in part with KITTREDGE, J.