Planned Parenthood South Atlantic v. State of South Carolina ( 2023 )

THE STATE OF SOUTH CAROLINA
In the Supreme Court
Planned Parenthood South Atlantic; Greenville Women's
Clinic; Katherine Farris, M.D.; and Terry Buffkin, M.D.,
Petitioners,
v.
State of South Carolina; Alan McCrory Wilson, in his
official capacity as Attorney General of the State of South
Carolina; Edward Simmer, in his official capacity as
Director of the South Carolina Department of Health and
Environmental Control; Anne G. Cook, in her official
capacity as President of the South Carolina Board of
Medical Examiners; Stephen I. Schabel, in his official
capacity as Vice President of the South Carolina Board of
Medical Examiners; Ronald Januchowski, in his official
capacity as Secretary of the South Carolina Board of
Medical Examiners; George S. Dilts, in his official
capacity as a Member of the South Carolina Board of
Medical Examiners; Dion Franga, in his official capacity
as a Member of the South Carolina Board of Medical
Examiners; Richard Howell, in his official capacity as a
Member of the South Carolina Board of Medical
Examiners; Theresa Mills-Floyd, in her official capacity
as a Member of the South Carolina Board of Medical
Examiners; Jennifer R. Root, in her official capacity as a
Member of the South Carolina Board of Medical
Examiners; Christopher C. Wright, in his official capacity
as a Member of the South Carolina Board of Medical
Examiners; Scarlett Anne Wilson, in her official capacity
as Solicitor for South Carolina's 9th Judicial Circuit;
Byron E. Gipson, in his official capacity as Solicitor for
South Carolina's 5th Judicial Circuit; and William Walter
Wilkins III, in his official capacity as Solicitor for South
Carolina's 13th Judicial Circuit, Respondents,
&
G. Murrell Smith, Jr., in his official capacity as Speaker of
the South Carolina House of Representatives; Thomas C.
Alexander, in his official capacity as President of the
South Carolina Senate; and Henry Dargan McMaster, in
his official capacity as Governor of the State of South
Carolina, Respondents-Intervenors.
Appellate Case No. 2022-001062
IN THE COURT'S ORIGINAL JURISDICTION
Opinion No. 28127
Heard October 19, 2022 – Filed January 5, 2023
RELIEF GRANTED
M. Malissa Burnette, Kathleen McColl McDaniel, and
Grant Burnette LeFever, of Burnette Shutt & McDaniel,
PA, of Columbia, for Petitioners.
Julia A. Murray and Hannah Swanson, of Washington,
DC; for Petitioners Planned Parenthood South Atlantic
and Katherine Farris, M.D.
Genevieve Scott and Astrid Ackerman, of New York, NY;
for Petitioner Greenville Women's Clinic and Terry
Buffkin, M.D.
Jacquelyn S. Dickman, Ashley Caroline Biggers, and
William Marshall Taylor, Jr., of Columbia, for
Respondent Edward Simmer, in his official capacity as
Director of the South Carolina Department of Health and
Environmental Control.
Robert E. Horner and Erin G. Baldwin, of Columbia, for
Respondents Anne G. Cook, in her official capacity as
President of the South Carolina Board of Medical
Examiners; Stephen I. Schabel, in his official capacity as
Vice President of the South Carolina Board of Medical
Examiners; Ronald Januchowski, in his official capacity
as Secretary of the South Carolina Board of Medical
Examiners; George S. Dilts, in his official capacity as a
Member of the South Carolina Board of Medical
Examiners; Dion Franga, in his official capacity as a
Member of the South Carolina Board of Medical
Examiners; Richard Howell, in his official capacity as a
Member of the South Carolina Board of Medical
Examiners; Theresa Mills-Floyd, in her official capacity
as a Member of the South Carolina Board of Medical
Examiners; Jennifer R. Root, in her official capacity as a
Member of the South Carolina Board of Medical
Examiners; and Christopher C. Wright, in his official
capacity as a Member of the South Carolina Board of
Medical Examiners.
Robert David Garfield and Steven R. Spreeuwers, of
Crowe Lafave Garfield & Bagley, LLC, of Columbia, for
Respondent Byron E. Gipson, in his official capacity as
Solicitor for South Carolina's 5th Judicial Circuit.
Amanda K. Dudgeon and James Matthew Johnson, of
Chandler & Dudgeon, LLC, of Charleston, for Respondent
Scarlett Anne Wilson, in her official capacity as Solicitor
for South Carolina's 9th Judicial Circuit.
Attorney General Alan McCrory Wilson, Solicitor
General Robert D. Cook, Deputy Solicitor General J.
Emory Smith, Jr., and Assistant Deputy Solicitor General
Thomas Tyler Hydrick, all of Columbia, for Respondents
the State of South Carolina, Alan McCrory Wilson, in his
official capacity as Attorney General of the State of South
Carolina, and William Walter Wilkins III, in his official
capacity as Solicitor for South Carolina's 13th Judicial
Circuit.
Kevin A. Hall and Matthew Todd Carroll, of Womble
Bond Dickinson LLP, of Columbia, for Respondents-
Intervenors G. Murrell Smith, Jr., in his official capacity
as Speaker of the South Carolina House of
Representatives, and Thomas C. Alexander, in his official
capacity as President of the South Carolina Senate.
Chief Legal Counsel Thomas Ashley Limehouse, Jr.,
Senior Legal Counsel William Grayson Lambert, and
Deputy Legal Counsel Erica Wells Shedd, of Columbia,
for Respondent-Intervenor Henry Dargan McMaster, in
his official capacity as Governor of the State of South
Carolina.
Randall Scott Hiller, of Randall S. Hiller, P.A., of
Greenville; Kimberly A. Parker, of Wilmer Cutler
Pickering Hale and Dorr, LLP, of Washington, DC; and
Jessica Notebaert, of Wilmer Cutler Pickering Hale and
Dorr, LLP, of Boston, MA; all for Amici Curiae American
College of Obstetricians and Gynecologists, American
Medical Association, American Academy of Family
Physicians, American Academy of Pediatrics, American
College of Physicians, National Hispanic Medical
Association, and Society for Maternal-Fetal Medicine.
Brennan Tyler Brooks, of Law Office of B. Tyler Brooks,
PLLC, of Greensboro, NC, and Matthew Staver, of
Liberty Counsel, of Maitland, FL; for Amici Curiae
Frederick Douglass Foundation and National Hispanic
Christian Leadership Conference.
Andrew C. Nichols, of Charis Lex P.C., of Reston, VA;
and Timothy J. Newton, of Murphy & Grantland, P.A.; of
Columbia, for Amicus Curiae Christian Medical and
Dental Associations.
Barry L. Johnson and William Lamar Johnson, II, of
Johnson & Davis, P.A., of Bluffton, for Amicus Curiae
American Center for Law & Justice.
Samuel Darryl Harms, III, of Greenville, for Amicus
Curiae Elliot Institute.
Henry Wilkins Frampton, IV, and Denise M. Harle, of
Leesburg, VA; for Amici Curiae American Association of
Pro-Life Obstetricians and Gynecologists and Dr.
Christine Hemphill.
Larry Shawn Sullivan, of Sullivan Law Group, LLC, of
Myrtle Beach, and John G. Knepper, of Law Office of
John G. Knepper, LLC, of Cheyenne, WY; for Amicus
Curiae Alliance for Hippocratic Medicine.
JUSTICE HEARN: Today we consider whether The Fetal Heartbeat and Protection
from Abortion Act ("the Act") violates a woman's constitutional right to privacy, as
guaranteed in article I, section 10 of the South Carolina Constitution. We hold that
the decision to terminate a pregnancy rests upon the utmost personal and private
considerations imaginable, and implicates a woman's right to privacy. While this
right is not absolute, and must be balanced against the State's interest in protecting
unborn life, this Act, which severely limits—and in many instances completely
forecloses—abortion, is an unreasonable restriction upon a woman's right to privacy
and is therefore unconstitutional.1
FACTUAL/PROCEDURAL BACKGROUND
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
1
As a point of clarity, today a majority of this Court—Chief Justice Beatty, Justice
Few, and myself—agrees the Act violates our state's constitutional right to privacy.
There are two dissents: Justice Kittredge, while believing that our state's right to
privacy is broader than searches and seizures, does not find it implicated here. Justice
James believes article I, section 10 only applies within the search and seizure
context. While each member of the Court has written an opinion, this is considered
the lead opinion.
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;
2
While the General Assembly chose to use the term "fetus" to apply to this early
stage of gestation, we note that this and other terminology in the Act are inconsistent
with medical science. The Act defines "human fetus" as "an individual organism of
the species homo sapiens from fertilization until live birth." S.C. Code Ann. § 44-
41-610 (2021). Conversely, the scientific community delineates a blastocyte
(fertilization to three weeks), embryos (up to eight weeks gestation), and fetuses
(eight to forty weeks gestation). See Fetal Development: Stages of Growth,
Cleveland Clinic, https://my.clevelandclinic.org/health/articles/7247-fetal-
development-stages-of-growth (last accessed October 16, 2022). Additionally, while
the Act refers to a "heartbeat," the overwhelming consensus in the medical
community is that, at this early stage of gestation, what is being recorded as "cardiac
activity" is merely an electrical flickering occurring prior to the development of any
chambers of the heart. See Amicus Br. of American Medical Association at 10.
3
There are exceptions for rape (if less than twenty weeks gestation), incest (if less
than twenty weeks gestation), health of the patient, and fetal anomaly (as defined by
the legislature). See S.C. Code Ann. § 44-41-680 (2021).
(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.
STANDARD OF REVIEW
The party challenging the validity of a statute bears the burden of proving it
is unconstitutional. See Knotts v. S.C. Dep't of Nat. Res., 348 S.C. 1, 6, 558 S.E.2d
511, 513 (2002) (noting the appellant bore the burden of proving the statute
unconstitutional). "This Court has a limited scope of review in cases involving a
constitutional challenge to a statute because all statutes are presumed constitutional
and, if possible, will be construed to render them valid." Curtis v. State, 345 S.C.
4As we noted in our order granting a temporary injunction enjoining the enforcement
of the Act, we denied Respondents-Intervenors' request to avoid administrative
redundancy.
557, 569, 549 S.E.2d 591, 597 (2001). "A legislative act will not be declared
unconstitutional unless its repugnance to the constitution is clear and beyond a
reasonable doubt." Joytime Distribs. & Amusement Co. v. State, 338 S.C. 634, 640,
528 S.E.2d 647, 650 (1999).
DISCUSSION
I. Implication of article I, section 10
Unlike the United States Constitution and the constitutions of most of our
sister states, South Carolina's Constitution includes a specific reference to a citizen's
right to privacy. That provision states: "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 . . . ." S.C. Const., art I, § 10.
In this case, we are asked to determine whether that right to privacy extends to a
woman's decision to have an abortion, and, if so, whether the Act unconstitutionally
infringes upon that right. We are not asked to determine whether our constitution
mentions the word "abortion"—clearly it does not. Instead, the fundamental question
before the Court is whether this Act, which severely restricts and, in many cases,
prohibits a woman's decision to terminate a pregnancy, constitutes an "unreasonable
invasion of privacy."
According to Respondents, this right to privacy applies only to criminal
defendants in the context of Fourth Amendment search and seizure. In support of
this contention, Respondents argue that there is no mention of a woman's right to
bodily autonomy in the amendment and also point to the notes of the West
Committee, which recommended submitting the amendment to the voters.
Petitioners, on the other hand, argue that an "unreasonable invasion of privacy"
should include an individual's decisions concerning his or her own medical care and
treatment, and that there are few rights so personal within the concept of privacy as
a woman's right to determine whether or not to terminate a pregnancy.
We reject Respondents' argument to limit the right to privacy guaranteed in
our constitution merely because the words used do not specifically mention medical
care or bodily autonomy. This narrow interpretation would render the words "and
unreasonable invasions of privacy" superfluous, as the preceding clause speaks
specifically to searches and seizures. In interpreting this text, we must not only give
the words their plain and ordinary meaning, but we must also give meaning to the
entire text, and not render any provision meaningless. See Hodges v. Rainey, 341
S.C. 79, 87, 533 S.E.2d 578, 582 (2000). Though attached to the same modifying
clause, article I, section 10 protects citizens from two distinct actions by the
government: first are "unreasonable searches and seizures[,]" largely mirroring our
federal constitution's Fourth Amendment, and second is a protection not found in the
United States Constitution, to be secure from "unreasonable invasions of privacy."
S.C. Const., art I, § 10. Both phrases are modified by the same clause, "to be secure
in their persons, houses, papers, and effects against . . . ." Id. This modifying clause
identifies the scope of these protections—stated differently, the right protects from
both unreasonable government invasions of privacy in citizens' persons, houses,
papers, and effects and against unreasonable government searches and seizures of
citizens' persons, houses, papers, and effects. Each of these modifying nouns has
independent meaning. See In re Decker, 322 S.C. 215, 219, 471 S.E.2d 462, 463
(1995) ("[N]o word, clause, sentence, provision or part shall be rendered surplusage,
or superfluous . . . .") (quoting 82 C.J.S. Statutes § 346). To accept Respondents'
interpretation would be to render the words "unreasonable invasions of privacy"
inconsequential. Further, we agree with Justice Few that the "unreasonable invasion
of privacy" language, while broad, is not ambiguous. Accordingly, we cannot use
interpretative tools to effectuate some other intent when the words are clear. See
Acker v. Cooley, 177 S.C. 144, 145, 181 S.E. 10, 11 (1934) (acknowledging that
"legislative interpretation of a constitutional provision should be given much
weight" but declining to do so when the provision "is not ambiguous and needs no
construction").
In analyzing the import of the words of the amendment, it is important to note
that this right to privacy was not created out of whole cloth in 1971, but instead was
recognized as having always existed. Similar to the Second Amendment to the
United States Constitution, our privacy right's text that it "shall not be violated" is
an implicit recognition of the pre-existence of the right. See S.C. Const. art. I, § 10
and District of Columbia v. Heller, 554 U.S. 570, 592 (2008) (holding that the
Second Amendment's text "implicitly recognizes the pre-existence of the right and
declares only that it 'shall not be infringed'"). The Heller court relied on United States
v. Cruikshank's reasoning that "[t]his is not a right granted by the Constitution.
Neither is it in any manner dependent upon that instrument for its existence. The
second amendment declares that it shall not be infringed . . . ." Heller, 554 U.S. at
592 (quoting United States v. Cruikshank, 92 U.S. 542, 553 (1875)). The language,
"shall not be violated" is likewise an implicit recognition, not that the right was then
granted to the people of South Carolina, but that it shall not now be violated.
The litigants in this case have offered differing interpretations of this privacy
right. Petitioners claim this right to be free from "unreasonable invasions of privacy"
extends to medical decisions such as deciding whether to carry a pregnancy to term
or to terminate it—which are inherently personal and private matters. Conversely,
Respondents claim this right deals only with data privacy and has no application to
medical decisions. As support for that position, Respondents cite to some of the
notes of the West Committee. Prior to determining if a woman's right to bodily
autonomy is protected by the South Carolina Constitution, and whether the work of
the West Committee assists us in that decision, we briefly trace the historical
development of the right to privacy.
In the United States, the right to privacy is often credited as being first
identified by Louis Brandeis and Samuel Warren in their seminal Harvard Law
Review article, The Right to Privacy. See 4 Harv. L. Rev. 193 (1890). Recounting
the evolution of the "right to be let alone[,]" the authors were primarily concerned
with the creation of a tort for redressing invasions of privacy in an increasingly
interconnected world. In 1905, our sister state of Georgia adopted such a cause of
action, citing to the natural law's right of privacy that has existed since the formation
of the common law in England. See Pavesich v. New England Life Ins. Co., 50 S.E.
68, 70 (Ga. 1905) ("The right of privacy has its foundation in the instincts of nature.
It is recognized intuitively, consciousness being the witness that can be called to
establish its existence."). In 1940, this Court implicitly accepted this reasoning in
Holloman v. Life Insurance Company of Virginia, 192 S.C. 454, 459 7 S.E.2d 169,
171 (1940) ("We do not consider the law a closed system, but on the contrary it is
our view that its concepts should expand to meet changing conditions arising in the
course of human experience.") (holding reiterated and clarified in Meetze v.
Associated Press, 230 S.C. 330, 336, 95 S.E.2d 606, 609 (1956)).
Following the onset of the Second World War, the Supreme Court first
protected the right to procreate in Skinner v. Oklahoma, 316 U.S. 535, 541 (1942)
("We are dealing here with legislation which involves one of the basic civil rights of
man. Marriage and procreation are fundamental to the very existence and survival
of the race . . . [any sterilization] which the State conducts is to his irreparable injury.
He is forever deprived of a basic liberty."). This decision broke new ground and
departed from the controversial holding in Buck v. Bell, which upheld state-
sterilization power under the rationale that "[t]hree generations of imbeciles are
enough." Buck v. Bell, 274 U.S. 200, 207 (1927).
Flowing directly from this right to procreation, the Supreme Court recognized
that the right to marital privacy was violated by a contraception ban in Griswold v.
Connecticut, 381 U.S. 479, 485 (1965). The Supreme Court subsequently extended
this right to unwed individuals in Eisenstadt v. Baird, arguing that privacy in
intimate relations cannot be limited based on marital status. 405 U.S. 438, 453
(1972) ("It is true that in Griswold the right of privacy in question inhered in the
marital relationship. Yet the marital couple is not an independent entity with a mind
and heart of its own, but an association of two individuals each with a separate
intellectual and emotional makeup."). The Eisenstadt court also held, "[i]f the right
of privacy means anything, it is the right of the individual, married or single, to be
free from unwarranted governmental intrusion into matters so fundamentally
affecting a person as the decision whether to bear or beget a child." Id.Fast on the heels of Griswold, the Supreme Court ruled that the right to
privacy, emanating from the Bill of Rights and applying to the states through the
Fourteenth Amendment, protected a woman's decision to terminate pregnancy in the
first trimester without interference from the state. Roe v. Wade, 410 U.S. 113, 163-
64 (1973) (overruled by Dobbs, 142 S. Ct. at 2240). Earlier this year, that decision
was overturned because "abortion is fundamentally different" from contraception
and marriage in that it involves the ending of fetal life. Dobbs, 142 S. Ct. at 2243. 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." Id. at 2245 (emphasis added). Recognizing
that Roe was overturned partially based on its reliance on an unmentioned and hence
arguably nonexistent constitutional right to privacy, Dobbs does not control, nor
even shed light on, our decision today since the South Carolina Constitution
expressly includes a right to privacy.
Turning towards the concept of privacy in our state, only six years after
Griswold recognized marital privacy rights, South Carolina adopted article I, section
10. There can be no doubt that the authors of this provision were aware of Griswold
and its use of the right to privacy. Indeed, the Griswold decision was contained in
an article that staff presented to the West Committee. See Committee to Make a
Study of the Constitution of South Carolina of 1895, Appendix A. To be sure, there
was also much discussion in the Committee notes of the burgeoning considerations
of electronic surveillance and its progeny. See id., West Committee Meeting Minutes
62 (Sept. 15, 1967); id. at 5 (Oct. 6, 1967). Cognizant of the ongoing developments
and extensions of privacy law into areas such as marriage and intimacy, the authors
nevertheless chose broad language, which we cannot now simply ignore by looking
to discrete references to data security in the Committee notes. See Heller, 554 U.S.
at 590 ("It is always perilous to derive the meaning of an adopted provision from
another provision deleted in the drafting process."). Believing we should not
supplant the broad language set forth in our constitution with what the Committee
members may have thought the provision protected, we reject Respondents' entreaty
to base our decision regarding the scope of the right to privacy on select portions of
the West Committee notes. State v. Forrester, 343 S.C. 637, 647 n.7, 541 S.E.2d
837, 842 n.7 (2001) ("It is important to note that committee minutes will not be
controlling of the intent behind, or interpretation of, our state constitution."). While
Justice Kittredge's dissent finds our rejection of the West Committee notes
"stunning," we believe it is faithful to our precedent because we have specifically
rejected the same argument now again advanced that the West Committee notes
confine our privacy right to electronic surveillance. Id. at 647, 541 S.E.2d at 841("[T]he drafters of our state constitution's right to privacy provision were principally
concerned with the emergence of new electronic technologies that increased the
government's ability to conduct searches . . . [h]owever, the committee also
recognized that the provision would have an impact beyond just the area of electronic
surveillance. As Committee Member Sinkler stated, 'I think this is an area that,
really, should develop and should not be confined to the intent of those who sit
around this table.'") (internal citations omitted). Indeed, the only thing remotely
breathtaking about our approach is its adherence to precedent.
Moreover, Respondents' argument that the West Committee notes control our
decision as to the scope of our privacy provision completely ignores, and arguably
perpetuates, the societal landscape of the time. Respondents' insistence that we are
bound to rely on the committee notes in delineating the scope of our state's privacy
provision requires a brief review of our state's history in affording equal rights to
women. 5 Although the Nineteenth Amendment granting women the right to vote
was ratified by the requisite number of states and adopted in 1920, South Carolina
rejected it at the time. It was not until 1969—nearly fifty years later—that the South
Carolina General Assembly finally ratified it, and even then, the vote was not
certified for another four years "because the state had never confirmed ratification
with the Secretary of State or the House Speaker."6 Additionally, while some
5
I defend against the dissent's criticism of this unnecessary "history lesson" by
noting the obvious fact that abortion—and its preclusion—while affecting both
women and men, impact women most severely. Accordingly, in view of
Respondents' insistence that we should consider that the West Committee did not
include any reference to abortion in its notes, I insist that the composition of that
committee as well as the societal climate of the time, are highly relevant. Indeed, if
the dissenting opinions are going to rely on notes outside the actual text of article I,
section 10, then this history should not be ignored.
6
See T. Michael Boddie, SC Waited Until 1969 to Ratify the 19th Amendment,
Giving Women the Right to Vote, THE POST AND COURIER (Sep. 14, 2020),
https://www.postandcourier.com/news/sc-waited-until-1969-to-ratify-the-19th-
amendment-giving-women-the-right-to-vote/article_a5e5849e-99bd-11e9-a42c-
bb2445ba6a81.html.
western states permitted women to serve on juries as early as the late 1800's, and
federal law gave women the right in 1957, South Carolina was among the very last
of the states to permit it in 1967, eclipsed only by Mississippi a year later. 7 Thus, in
1966 when the West Committee—initially composed of nine men and not a single
woman—began discussing whether to add a state constitutional privacy amendment,
the General Assembly had neither permitted women to serve on juries in this state
nor ratified the Nineteenth Amendment. 8 Given this historical backdrop, we decline
to limit our review of article I, section 10 to what the West Committee members may
have thought at the time. While we certainly agree with Respondents that abortion
was not mentioned in the amendment nor was including a woman's right to bodily
autonomy uppermost in the minds of the Committee members, those facts neither
guide nor end our inquiry. We cannot relegate our role of declaring whether a
legislative act is constitutional by blinding ourselves to everything that has
transpired since the amendment was adopted. Indeed, the United States Supreme
Court declined to do so in the context of "separate but equal" education in Brown v.
Board of Education:
[W]e cannot turn the clock back to 1868 when the Amendment was
adopted, or even to 1896 when Plessy v. Ferguson was written. We
must consider public education in the light of its full development and
its present place in American life throughout the Nation. Only in this
way can it be determined if segregation in public schools deprives these
plaintiffs of the equal protection of the laws.
Brown v. Bd. of Ed. of Topeka, Shawnee Cnty., Kan., 347 U.S. 483, 492-93, (1954).
Nor did it do so in Loving v. Virginia, where the Supreme Court reiterated the
rationale from Brown and struck down Virginia's longstanding laws against
interracial marriage. 388 U.S. 1, 9 (1967). This focus continued with Griswold,
Lawrence v. Texas, 539 U.S. 558 (2003), and Obergefell v. Hodges, 576 U.S. 6447
See Clif LeBlanc, S.C. was Second to Last State to Allow Women Jurors, THE
STATE (Dec. 16, 2015), https://www.thestate.com/news/special-reports/state-
125/article47616240.html; Women on Mississippi Juries, THE NEW YORK TIMES
(June 15, 1968),
https://timesmachine.nytimes.com/timesmachine/1968/06/15/88953741.html?page
Number=33.
8
Throughout its work from 1966-1969, a total of fourteen people served on the West
Committee, only one of whom was a woman. See Committee to Make a Study of the
Constitution of South Carolina of 1895, Final Report (1969).
(2015), just to name a few. In the final analysis, we find the notes of the West
Committee irrelevant to the question before us today.
Additionally, Respondents' position to limit the reach of the constitutional
right to privacy to the criminal arena of search and seizure is also contrary to the
jurisprudence of this Court. We have found that the right to privacy may be
implicated in many ways, from requiring a witness to divulge medical information
during a criminal trial to forcing a convicted felon to take medication so that he may
be competent enough to be executed. See State v. Blackwell, 420 S.C. 127, 151, 801
S.E.2d 713, 725 (2017) (noting the novel issue before the Court was "whether a
criminal defendant's constitutional right to confront a witness trumps a witness's
state constitutional right to privacy and statutory privilege to maintain confidential
mental health records") (footnotes omitted) and Singleton v. State, 313 S.C. 75, 90,
437 S.E.2d 53, 62 (1993) (finding compulsory medication implicated a prisoner's
state constitutional right to privacy). In Blackwell, the Court, in an attempt to
recognize both the right to privacy and the United States Constitution's Sixth
Amendment right of confrontation, proffered a balancing test to determine when a
witness may be forced to divulge personal medical testimony. 420 S.C. at 146, 801
S.E.2d at 723.
In Singleton, this Court held that forcibly giving a prisoner medication, for the
sole purpose of competency for execution, was a violation of the prisoner's right to
privacy under the South Carolina Constitution. 313 S.C. at 89, 437 S.E.2d at 62. The
Court held:
We hold that the South Carolina Constitutional right of privacy would
be violated if the State were to sanction forced medication solely to
facilitate execution. An inmate in South Carolina has a very limited
privacy interest when weighed against the State's penological interest;
however, the inmate must be free from unwarranted medical intrusions.
Id. at 89, 437 S.E.2d at 61. The Court cited to Louisiana's Supreme Court in State v.
Perry, which held, "the right to decide what is to be done medically with one's brain
and body" was contained in Louisiana's right to privacy. Perry, 610 So.2d 746, 755
(La. 1992) and Singleton, 313 S.C. at 89, 437 S.E.2d at 61. Our Court noted that
Louisiana's right to privacy was "strikingly similar" to ours and adopted the logic of
Perry in holding, the "provision in the S.C. Constitution is no less compelling than
the provision in the Louisiana Constitution." 313 S.C. at 88, 437 S.E.2d at 61.
Notably, in reaching this decision, we did not ask whether our constitution
specifically prohibited forced medication of an inmate in order to carry out an
execution. Just as the provision does not specifically refer to abortion, neither does
it mention forcing medication on an inmate. Nor did we limit ourselves to whether
the West Committee specifically contemplated that issue. Instead, we simply asked
whether the privacy language in article I, section 10 encompassed the circumstances
before us. We find it inconceivable that under Respondents' interpretation of article
I, section 10, in South Carolina, a convicted murderer has a greater right to privacy
than a pregnant woman.
We reiterate the holding of Singleton that certain instances of medical
intervention implicate the right to be secure in one's person from unreasonable
invasions of privacy. However, before extending that implication to the decision to
terminate a pregnancy, we survey our sister jurisdictions, with particular attention to
those few who have strikingly similar constitutional privacy protections.
Like ours, Alaska's constitution also expressly acknowledges a right to
privacy. See Alaska Const. art. I, § 22 ("The right of the people to privacy is
recognized and shall not be infringed."). In Valley Hospital Association v. Mat-Su
Coalition for Choice, the Alaska Supreme Court held that "few things are more
personal than a woman's control of her own body, including the choice of whether
and when to have children[,]" concluding, "we are of the view that reproductive
rights are fundamental, and that they are encompassed within the right to privacy
expressed in the Alaska Constitution." 948 P.2d 968-69 (Alaska 1997). In so ruling,
the court considered and rejected the argument, similar to the one advanced today,
that its state constitution's privacy right merely "encompass[ed] protection from
unwarranted surveillance and data collection . . . ." Id. at 969. Much like
Respondents' argument here, the argument to limit Alaska's privacy provision relied
primarily on the legislative history's focus on data privacy, but the court concluded
that the actual language of the provision controlled and found that language broad
enough to implicate the abortion decision. Id.In Florida, the state constitution protects "the right to be let alone and free
from government intrusion into the person's private life . . . ." Fla. Const. art. I, § 23.
The Florida Supreme Court has found that a woman's decision to terminate
pregnancy implicates this privacy right, holding, "Florida's privacy provision is
clearly implicated in a woman's decision of whether or not to continue her
pregnancy." In re T.W., 551 So.2d 1186, 1192 (Fla. 1989). In reaching that decision,
the court considered that the choice "whether to obtain an abortion is fraught with
specific physical, psychological, and economic implications of a uniquely personal
nature for each woman." Id. at 1193. This holding, the court found, was consistent
with its line of privacy cases where the right was implicated by a "number of cases
dealing with personal decisionmaking [sic]" such as the refusal of a blood
transfusion when necessary to sustain life, the removal of a feeding tube from a
vegetative patient, and the removal of a respirator from a competent adult. Id. at
1192. The court reasoned that these medical choices, just like the abortion decision,
were necessarily personal and thus, at some level, must be protected from
government intrusion.
The Minnesota Supreme Court found that several provisions in its state
constitution's bill of rights encompassed a woman's decision to terminate her
pregnancy. Women of State of Minn. by Doe v. Gomez, 542 N.W.2d 17, 26-27 (Minn.
1995) ("[T]he right of privacy under the Minnesota Constitution encompasses a
woman's right to decide to terminate her pregnancy."). The court surveyed its prior
decisions where the privacy right was implicated in medical decision-making and
concluded that abortion was no different. Id. at 27 ("[T]he right to be free from
intrusive medical treatment is a fundamental right encompassed by the right to
privacy under the Minnesota Constitution.").
In Armstrong v. State, the Montana Supreme Court struck down a law that
prohibited physician assistants from performing pre-viability abortions, and found
that "the procreative autonomy component of personal autonomy is protected by
Montana's constitutional right to privacy." 989 P.2d 364, 384 (Mont. 1999).
Montana's constitutional provision reads, "[t]he right of individual privacy is
essential to the well-being of a free society and shall not be infringed without the
showing of a compelling state interest." Mont. Const. art II, § 10. The court
considered the "broader context of one's right to choose or refuse medical treatment"
and concluded that "[f]ew matters more directly implicate personal autonomy and
individual liberty than medical judgments affecting one's bodily integrity and health"
like the decision to have an abortion. 989 P.2d at 381. The court traced this right
back throughout American jurisprudential history and rejected the notion that
abortion is somehow different than other medical decisions on the issue of whether
restrictions implicate the right to privacy. Id. at 376 ("Facially, then, procreative
autonomy being grounded in the right of privacy, there is no reason why this right
would not also be encompassed within the broader personal autonomy protections
afforded by the fundamental right of individual privacy guaranteed by Article II,
Section 10 of the Montana Constitution."). Further, because the Montana
Constitution specifically included privacy in its constitution, the court concluded, "it
is a fundamental right." Id. at 374.9
9
Justice James faults us for citing Armstrong because the Montana Supreme Court
relied in part on reviewing the intent of that state's 1972 Constitutional Convention.
We agree with Chief Justice Beatty that characterizing a constitutional convention
The Tennessee Supreme Court found that the decision to terminate a
pregnancy was protected as part of its state constitutional right to privacy before a
referendum vote amended the state constitution to specifically exclude abortion
rights. See Planned Parenthood of Middle Tenn. v. Sundquist, 38 S.W.3d 1, 4 (Tenn.
2000) ("We specifically hold that a woman's right to terminate her pregnancy is a
vital part of the right to privacy guaranteed by the Tennessee Constitution.") and
Tenn. Const. art I, § 36 (2014) ("Nothing in this Constitution secures or protects a
right to abortion . . . ."). We note that this suitably comports with the Supreme Court's
hope in Dobbs that "the issue of abortion [be returned] to the people's elected
representatives." 142 S. Ct. at 2243. The Tennessee Supreme Court interpreted the
language and history of the right to privacy and found it encompassed the abortion
decision, and the citizens of Tennessee responded by voting to amend their
constitution's text. The court answered the question before it using both its own
jurisprudence and the broad language of the privacy right, and the people responded
by changing the language itself.10
South Carolina is one of only ten states to include a specific right to privacy
in its constitution. Forrester, 343 S.C. at 644, 541 S.E.2d at 841. Of those ten, it
appears several have not addressed whether abortion implicates their privacy right.
and the West Committee as "close cousin[s]" is an "overstatement at best."
Regardless, we do not rely on the decisions from other states as binding, and we
acknowledge one can parse differences with each, as can be done in any case.
Nevertheless, the central point remains that we are far from alone in concluding that
medical decisions such as an abortion fall within the scope of an explicit privacy
protection contained in a state constitution.
10
A request to let the people of South Carolina decide the scope of the right to
privacy language was made on the floor of the South Carolina Senate but was
rejected as being "out of order." See S. Journal, 124th Leg. Sess. (S.C. Sept. 8, 2022),
available at https://www.scstatehouse.gov/sess124_2021-2022/sj22/20220908.htm.
We note that the request would have followed the approach taken in at least six other
states that have had referendums on abortion rights following Dobbs. Those states
are Kansas, where a referendum was held in August of 2022, and Michigan,
Montana, Vermont, Kentucky, and California, which held referendums on
November 8, 2022, during the general election. Joshua Needelman, Five States Have
Abortion Referendums on the Ballot, THE NEW YORK TIMES (Nov. 8, 2022),
https://www.nytimes.com/2022/11/08/us/politics/abortion-ballot-state-
referendums.html.
Of the states that have addressed the question, Alaska, Florida, Minnesota, Montana,
and Tennessee 11 have answered in the affirmative. Additionally, Washington has
held its explicit privacy right protects "autonomous decision-making[,]" making
special note of the privacy right's important role in cases involving "marriage,
procreation, family relationships, child rearing, and education." Wash. Pub. Emps.
Ass'n v. Wash. State Ctr. for Childhood Deafness & Hearing Loss, 450 P.3d 601,
611-12 (Wash. 2019) (quoting O'Hartigan v. Dep't of Pers., 821 P.2d 44, 47 (Wash.
1991)). Most certainly, in reaching our decision today that the Act unreasonably
intrudes on a woman's right to privacy, we do not merely count the rulings of our
sister states, yet the reasoning undergirding their decisions informs our own. We also
readily acknowledge that these decisions were issued before Dobbs created a sea
change in federal abortion jurisprudence. While Dobbs did not invalidate these
decisions because each invoked their respective state constitutions rather than the
federal constitution, we recognize that some may be called into question in future
litigation. Nevertheless, we are persuaded by the logic replete in the opinions we
have surveyed that few decisions in life are more private than the decision whether
to terminate a pregnancy. Our privacy right must be implicated by restrictions on
that decision. As stated by the Supreme Court in Eisenstadt, "[i]f the right of privacy
means anything, it is the right of the individual, married or single, to be free from
unwarranted governmental intrusion into matters so fundamentally affecting a
person as the decision whether to bear or beget a child." 405 U.S. at 453.
II. The Act's Constitutionality under article I, section 10
Although the General Assembly has plenary authority to legislate, it cannot
violate, implicitly or explicitly, the South Carolina Constitution or the United States
Constitution. See Ashmore v. Greater Greenville Sewer Dist., 211 S.C. 77, 96, 44
S.E.2d 88, 97 (1947). Finding the Act implicates article I, section 10, we now
determine whether it is unconstitutional.
In determining whether a fundamental right is violated, we employ strict
scrutiny. In re Luckabaugh, 351 S.C. 122, 140, 568 S.E.2d 338, 347 (2002) (applying
strict scrutiny because the statute implicates a fundamental right). The State
11
As noted above, when presented with the question solely based on the right to
privacy and Tennessee jurisprudence, the court answered the question in the
affirmative. See Planned Parenthood of Middle Tenn., 38 S.W.3d at 4. Now that the
text itself has changed, their right to privacy is more limited than other jurisdictions,
such as our own. See Tenn. Const. art I, § 36 (2014).
advances three interests in support of this restriction. First 12 is the State's legitimate
interest in fetal health, present throughout the entire pregnancy. Second is the State's
interest in protecting maternal health, which is unquestionably part of its larger
interest in promoting the health and welfare of its citizenry. Third is the unborn
fetus's own interest, which historically has been recognized at two different times:
"quickening" at common law, and viability under since-overturned Supreme Court
precedent. Within the context of abortion laws, any action restricting the right of
privacy by the government necessarily relies on one or more of these interests as
justification for the invasion of the privacy right. We analyze each in turn as support
of the Act before us today.
The State relies on its interest in fetal health, which is indisputably important
but not dispositive. Of course, the State has a legitimate interest in fetal health, but
at early stages of pregnancy implicated by the Act, the fetus cannot be considered
its own legal entity. In Crosby v. Glasscock, we were asked to determine whether a
father, whose wife was twenty-weeks pregnant with a nonviable stillborn fetus,
could recover under our wrongful death statute, on behalf of the fetus. 340 S.C. 626,
627-29, 532 S.E.2d 856, 856-57 (2000). We held he could not. Id. at 629, 532 S.E.2d
at 857. The wrongful death statute required that the deceased be a "person", and this
court reaffirmed the viability distinction that "a nonviable stillborn fetus cannot
maintain a wrongful death action . . . [however a] mother who is negligently injured
by the same act that results in the stillbirth of her fetus may, of course seek recovery
for her own personal injuries." Id. at 628-29, 532 S.E.2d at 857 (referencing West v.
McCoy, 233 S.C. 369, 105 S.E.2d 88 (1958)). The court reiterated the distinction
between nonviable fetuses who are not able to recover and viable fetuses who are
able to recover that has been present in our law for some time. Compare West, 233
S.C. at 369, 105 S.E.2d at 89 (holding a nonviable fetus's estate could not recover),
with Hall v. Murphy, 236 S.C. 257, 263, 113 S.E.2d 790, 793 (1960) (holding the
death of a viable fetus could support a wrongful death action) and Fowler v.
Woodward, 244 S.C. 608, 613, 138 S.E.2d 42, 44 (1964) (holding fetus in eighth
month of gestation was presumed viable and thus wrongful death action could be
maintained).
Our criminal law likewise mirrors this delineation. In State v. Horne, this
Court determined that a defendant could not be charged with murder for the ending
of fetal life. 282 S.C. 444, 447, 319 S.E.2d 703, 704 (1984) ("[W]e hold an action
for homicide may be maintained in the future when the state can prove beyond a
reasonable doubt the fetus involved was viable, i.e., able to live separate and apart
12
The order of these interests in no way connotes a ranking of their importance.
from its mother without the aid of artificial support."). The Court further noted that
"at the time of the stabbing, no South Carolina decision had held that killing of a
viable human being in utero could constitute a criminal homicide." Id. at 447, 319
S.E.2d at 704. In 2006, the General Assembly added the crime of "death or injury of
a child in utero due to commission of violent crime" as a separate offense to the
crime of murder. S.C. Code Ann. § 16-3-1083.
This distinction is present in our abortion jurisprudence as well. In State v.
Steadman, which involved the criminal prosecution of a woman for undergoing an
abortion, this court noted that the specific statutory language describing death as
either resulting from or not resulting from an abortion was based on the reasoning
that, "the child with which the woman is pregnant must be so far advanced as to be
regarded in law as having a separate existence-a life capable of being destroyed."
214 S.C. 1, 8, 51 S.E.2d 91, 93 (1948). The Steadman court also noted that, "[a]t
common law, an abortion, produced with the woman's consent, was not a crime
unless the woman was quick with child" because, "[i]n contemplation of law, life
commences at the moment of quickening, at that moment when the embryo gives
first physical proof of life, no matter when it first received it." Id. at 7, 51 S.E.2d at
93.
In interpreting South Carolina's abortion statutes at the time, the Steadman
court drew this critical distinction on the question of the State's historical interest in
restricting abortion:
From the earliest enactment of statutes designating the offense under
discussion as 'abortion', and until the present day, a distinction between
the condition of the child before and after quickening has been
recognized by providing a much severer punishment for the destruction
of a child after it has quickened than for the destruction of a child before
it has quickened.
Id. at 8, 51 S.E.2d at 93. It is clear that in South Carolina, and indeed in all common
law jurisdictions, the State has historically tied the potency of its interest in fetal life
to quickening, where the fetus's own interest also emerges.
Second is the State's interest in maternal health. The General Assembly
included this interest in at least two of its legislative findings. See South Carolina
Fetal Heartbeat and Protection from Abortion Act, Act No. 1, 2021 S.C. Acts 2, 3
§2. Specifically, the eighth finding states, "[I]n 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." Id. It is immediately apparent that this finding ties
a woman's decision to continue a pregnancy with the likelihood that a fetus will
survive to term. Indeed, the language itself overtly characterizes the decision as an
informed choice. Thus, whether women know they are pregnant by the time the Act
prohibits most abortions and have a meaningful opportunity to decide whether to
abort or to carry the pregnancy to full term, is unequivocally relevant to question
before us.
We have noted before that when the constitutionality of an act rests on
legislative findings, we will generally presume the findings are valid and uphold the
provision. Richards v. City of Columbia, 227 S.C. 538, 560, 88 S.E.2d 683, 694
(1955). Nevertheless, this does not mean we must relinquish our judicial duty of
declaring what the law is; otherwise, we would abrogate our constitutional role as a
coequal branch of government. As we have noted before:
[T]here are many instances where the constitutionality of an act
depends upon pertinent facts and in such a case it is presumed from the
mere passage of the act that there was a finding of such facts as were
necessary to authorize the enactment. However, by the better rule, such
implied or express finding is subject to judicial review, and the court
may consider extrinsic evidence or this purpose, although the statute
will not be held unconstitutional unless such (legislative) finding is
clearly erroneous.
Id. at 560-61, 88 S.E.2d at 694. In its legislative findings, the General Assembly
ostensibly realized the importance of a woman having an informed choice to
continue her pregnancy. Nevertheless, the actual scientific data demonstrates that
the guise of an "informed choice" is merely an illusion in many instances because
women typically do not realize they are pregnant until around six weeks, precisely
when the Act bans this medical procedure. See Dobbs, 142 S. Ct. at 2315 (Roberts,
C.J., concurring) ("[A] woman ordinarily discovers she is pregnant by six weeks of
gestation.") (citing Amy M. Branum & Katherine A. Ahrens, Trends in Timing of
Pregnancy Awareness Among US Women, Maternal and Child Health Journal
(2017), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5269518/ ("Among all
pregnancies reported, gestational age at time of pregnancy awareness was 5.5
weeks.")). 13 Therefore, the beginning point in our inquiry as to when the average
13
Juxtaposed against the Act's six-week limitation, Chief Justice John Roberts
concurred in Dobbs, noting he would have upheld Mississippi's 15-week deadline
while declining to address the continuing validity of Roe. Chief Justice Roberts
woman realizes she may be pregnant is over five weeks gestation. At the risk of
stating the obvious, in order for a choice to be informed, a woman must know she is
pregnant.
Once a woman knows she is pregnant, in order to have a choice, options must
be available. It is impossible to conclude that the average woman who determines
she is pregnant at just over five weeks has sufficient time to weigh her options,
schedule an appointment at one of the three clinics in the state, and comply with the
mandatory waiting periods before having an abortion. This confirms that in reality,
there is no "choice" at all. Accordingly, because the scientific data belies the
suggestion that women may actually have an "informed choice", something the Act
provides for, this interest heavily favors Petitioners. 14
The third interest is the unborn fetus's own interests. Unquestionably, the
fetus's interest is important and worthy of consideration by the General Assembly.
acknowledged that fifteen weeks provides an "adequate opportunity" to decide
whether to have an abortion, evidenced by the fact that most abortions occur in the
first trimester. 142 S. Ct. at 2315 (Roberts, C.J., concurring). In other words, "Ample
evidence thus suggests that a 15-week ban provides sufficient time, absent rare
circumstances, for a woman 'to decide for herself' whether to terminate her
pregnancy." Id. In reaching this conclusion, Chief Justice Roberts relied on the
Branum and Ahrens study finding the average gestational age of a fetus at the time
a woman determines she is pregnant is 5.5 weeks. Respectfully, our "own research"
that Justice Kittredge refers to as being so troubling, merely springs from Dobbs, a
decision he quotes verbatim.
14
Additionally, in safeguarding maternal health, data points to a heightened risk of
complications from an abortion procedure after sixteen weeks, although the
procedure still carries fewer health complications than carrying a pregnancy to term.
See Amici Curiae Br. of Am. Coll. of Obstetricians & Gynecologists, et al. (citing
Raymond & Grimes, The Comparative Safety of Legal Induced Abortion and
Childbirth in the United States, 119 Obstetrics & Gynecology 215, 216 (2012)). As
one of the amicus briefs noted, "the estimated increase in the risk of death due to
delaying the procedure by 1 week at 17 weeks of gestation is 18 times greater than
the estimated increase in the risk of death by delaying the procedure by 1 week at 8
weeks of gestation." See Amicus Br. of Christian Med. & Dental Ass'n. (quoting
Linda A. Bartlett, et al., Risk Factors for Legal Induced Abortion Mortality in the
United States, 103(4) Obstet. & Gyn. 729, 732 (2004)).
However, as we note in recounting our jurisprudence above, because the fetus's
interest has historically been recognized much later than six weeks, it cannot
displace the pregnant woman's interest at this early stage. Compare Whitner v. State,
328 S.C. 1, 17, 492 S.E.2d 777, 785 (1997) ("[T]he State's interest in protecting the
life and health of the viable fetus is not merely legitimate. It is compelling.")
(emphasis added), with Crosby, 340 S.C. at 629, 532 S.E.2d at 859 (holding "a
nonviable stillborn fetus may not maintain a wrongful death action . . . ."); West, 233
S.C. at 376, 105 S.E.2d at 91 (same); Steadman, 214 S.C. at 8, 51 S.E.2d at 93.
Moreover, even the concept of a fetus at this early stage is a misnomer in terms of
medical science. See supra note 2.
Overall, after comparing the varying interests, the Act cannot withstand the
clear directive of our state constitution—that "unreasonable invasions of privacy
shall not be violated . . . ." While the State has an interest in fetal life and in providing
women with vital medical information about their pregnancy, we agree with
Petitioners that the Act's six-week ban does not serve that interest. Rather, it
forecloses abortion in South Carolina for many pregnant women who may seek it,
underscoring the fact that any inclusion of an "informed choice" is contradictory
with the remaining provisions. By leaving no room for many women to exercise that
choice, the Act prohibits certain South Carolinians from making their own medical
decisions. Under the Respondents' view, while an "inmate must be free from
unwarranted medical intrusions[,]" Singleton, 313 S.C. at 89, 437 S.E.2d at 61,
women can be subject to them before they even have sufficient information to make
an informed choice. Thus, it cannot be deemed a reasonable restriction on privacy,
and accordingly, the Act violates article I, section 10 of the South Carolina
Constitution.15
15
While I agree with much of the Chief Justice's separate writing, because I believe
the six-week restriction is an unreasonable invasion of privacy and thus,
unconstitutional pursuant to article I, section 10, I do not reach Petitioners remaining
contentions that the Act violates the equal protection clause or due process clause of
our constitution, the Act is void ab initio, or that the Act unconstitutionally
conditions medical care on requiring a doctor to report rape or incest. While the Act
has a severance clause, the hallmark feature of this law is to restrict abortion post-
six weeks. Accordingly, it is highly dubious that without the six-week restriction,
the Act as a whole would have passed. As we recently noted,
When determining whether a statutory provision can be severed, we
consider "whether the constitutional portion of the statute remains
CONCLUSION
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.
complete in itself, wholly independent of that which is rejected, and is
of such a character that it may fairly be presumed the legislature would
have passed it independent of that which conflicts with the
constitution."
Pinckney v. Peeler, 434 S.C. 272, 288, 862 S.E.2d 906, 915 (2021) (quoting Joytime
Distribs. & Amusement Co., 338 S.C. at 648-49, 528 S.E.2d at 654). Thus, despite
the existence of a severability clause, the Act as a whole must fail. See, e.g.,
Sojourner v. Town of St. George, 383 S.C. 171, 178, 679 S.E.2d 182, 186 (2009)
(striking down as not severable provisions that were "mutually dependent" and
where legislative intent appeared to be "for both provisions to operate as a cohesive
procedure").
CHIEF JUSTICE BEATTY: Privacy has no meaning if we fail to limit how
closely the state may regulate our personal, medical, intimate, and moral decisions.
While all agree our government generally cannot search our homes—the pinnacle of
privacy—without a warrant, the outer bounds of privacy are still debated. Today,
we recognize the true breadth of this fundamental right, which all South Carolinians
enjoy: "If the right of privacy means anything, it is the right of the individual,
married or single, to be free from unwarranted governmental intrusion into matters
so fundamentally affecting a person as the decision whether to bear or beget a
child."16
In this case, we are asked to consider whether a woman has the right to make
her own decisions regarding her reproductive health and whether to continue a
pregnancy involving a quarter-inch long, six-week-old embryo. 17 I take judicial
notice of the fact that at six weeks of pregnancy there is no fetus, baby, or child as
those terms are commonly understood to mean. What actually exists at this stage of
pregnancy is an embryo containing an amorphous collection of cells.
To be clear, the state has a legitimate interest in regulating abortion. The
question is when does the state's legitimate interest rise to a level where it is
paramount to a woman's constitutional right to privacy? The answer is indeed a
policy decision of the legislature; however, this decision is necessarily tempered by
constitutional restraints. The South Carolina Constitution is the ultimate authority
in this regard.
We do not take our role lightly in this ongoing dispute. Each branch of our
government must fulfill its constitutional duty as the people of this state have
mandated. Today, we review the Fetal Heartbeat and Protection from Abortion Act18
16
Eisenstadt v. Baird, 405 U.S. 438, 453 (1972) (emphasis added).
17
See S.C. Dep't of Health & Env't Control, Embryonic & Fetal Development, 5
(2018) (stating that, by six weeks, "[t]he embryo grows to a length of 6 mm (about
¼ inch)"), https://scdhec.gov/sites/default/files/Library/ML-017049.pdf; cf. Mayo
Clinic, Pregnancy week by week (June 3, 2022) (at the end of eight weeks, an embryo
is about one-half inch long, and at the end of eleven weeks, it weighs one-third of an
ounce), https://www.mayoclinic.org/healthy-lifestyle/pregnancy-week-by-week/in-
depth/prenatal-care/art-20045302.
18
S.C. Code Ann. §§ 44-41-610 to -740 (Supp. 2022).
("the Act") in light of the rights that the people of this state enjoy. Based on our
state constitution's right to privacy, we conclude that the Act violates the protection
against unreasonable invasions of privacy. 19 Although our determination turns on
the right to privacy, I believe the Act is also void ab initio and denies state
constitutional rights to equal protection, procedural due process, and substantive due
process. Therefore, the Act violates our state constitution beyond a reasonable
doubt. For the foregoing reasons, I concur with Justice Hearn's lead opinion
regarding the right to privacy, and I write separately to address all of Petitioners'
issues because our decision today will likely not be the final resolution of the
quandary.
I. PROCEDURAL BACKGROUND
The South Carolina General Assembly adopted the Act in February 2021, and
Governor McMaster signed the law into effect on February 18, 2021. The Act bans
abortions after the detection of a "fetal heartbeat." S.C. Code Ann § 44-41-680(A)
(Supp. 2022). The Act defines "fetal heartbeat" as "any cardiac activity, or the steady
and repetitive rhythmic contraction of the fetal heart, within the gestational sac." Id.
§ 44-41-610(3). The Act provides four circumstantial exceptions to this general ban:
Rape, incest, risk of death or impairment, and fetal anomaly. Id. § 44-41-680(B)(1)–
(4).
Before the passage of the Act in question today, a 2016 "Pain-Capable Unborn
Child Protection Act" ("the 2016 Act") was in effect. Id. § 44-41-410 to -480 (2018).
The 2016 Act prohibited abortions when the post-fertilization age of the fetus was
twenty or more weeks. Id. § 44-41-450. Predating either of these acts, a 1974
enactment required all second-trimester abortions to be performed by an attending
physician in a hospital or certified clinic. Id. § 44-41-20. Because of this and by
their own concession, Petitioners are only certified to perform abortions before
fourteen weeks.
A majority of Petitioners sued in federal court to enjoin the enforcement of
the Act. The United States District Court for the District of South Carolina issued a
preliminary injunction on March 19, 2021 because Petitioners showed a likelihood
19
S.C. Const. art. I, § 10.
to succeed on the merits based on Roe20 and Casey. 21 Planned Parenthood S. Atl. v.
Wilson, 527 F. Supp. 3d 801 (D.S.C. 2021). Defendants in the federal proceeding
appealed, and the United States Court of Appeals for the Fourth Circuit affirmed the
district court's order on February 22, 2022. Planned Parenthood S. Atl. v. Wilson,
26 F.4th 600 (4th Cir. 2022).
On June 24, 2022 the United States Supreme Court issued its ruling in Dobbs
v. Jackson Women's Health Organization and reversed nearly five decades of
abortion precedent. 142 S. Ct. 2228 (2022). The Fourth Circuit subsequently
vacated its opinion and the preliminary injunction and remanded the case to the
district court. Planned Parenthood S. Atl. v. Wilson, No. 21-1369, 2022 WL
2900658 (4th Cir. July 21, 2022). The district court dismissed the case without
prejudice the next day. Planned Parenthood S. Atl. v. Wilson, No. 3:21-00508-
MGL, 2022 WL 2905496 (D.S.C. July 22, 2022).
Respondents petitioned this Court for original jurisdiction on July 20, 2022.
Meanwhile, Petitioners commenced a state action on July 31, 2022. However, the
circuit court canceled its scheduled hearing and issued an order to facilitate transfer
to this Court. We accepted this case in our original jurisdiction pursuant to Rule
245(a), SCACR. Simultaneously, we granted Petitioners' motion for a temporary
injunction to maintain the status quo and on the grounds that the new law22
inconsistently did not overrule the previous codification 23 of Roe. That
inconsistency remains today.
II. DISCUSSION
Petitioners argue the Act is unconstitutional in contravention of several
provisions in the South Carolina Constitution. These include the right against
unreasonable invasions of privacy in article I, section 10; the equal protection clause
in article I, section 3; and the due process clause in article I, section 3. Further,
Roe v. Wade, 410 U.S. 113 (1973), overruled by Dobbs v. Jackson Women's Health
20
Org., 142 S. Ct. 2228 (2022).
21
Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992), overruled by Dobbs
v. Jackson Women's Health Org., 142 S. Ct. 2228 (2022).
22
S.C. Code Ann. § 44-41-710 (Supp. 2022).
23
Id. § 44-41-20 (2018).
Petitioners contend the Act is void ab initio. Respondents collectively oppose
Petitioners' allegations and maintain that the Act is constitutional.
A. Premise of "Fetal Heartbeat" Laws
In analyzing the questions before us, it is important to recognize what this case
is—and is not—about. Philosophers, lawyers, politicians, and the general public
have long known that words matter, so understanding the terms before us is a key
component of our review.
The American College of Obstetricians and Gynecologists ("ACOG") has
observed that the language used in discussing reproductive health, in particular, has
a profound impact on what people understand to be true, so care should be taken to
avoid language that is biased or medically inaccurate. See American College of
Obstetricians and Gynecologists, ACOG Guide to Language and Abortion 1 (March
2022), https://www.acog.org/contact/media-center/abortion-language-guide (then
select box "Download Guide as PDF") [hereinafter ACOG Guide].
As will be discussed further, South Carolina enacted in 2021 what it titled a
"fetal heartbeat" act banning, with limited exceptions, an abortion after a "fetal
heartbeat has been detected." S.C. Code Ann. § 44-41-680(A) (Supp. 2022). The
Act defines "fetal heartbeat" to "mean[] cardiac activity, or the steady and repetitive
rhythmic contraction of the fetal heart, within the gestational sac." Id. § 44-41-
610(3).
The number of weeks of gestation is not specified in the law, but the parties
indicate it is their understanding that the law was intended to target gestation of six
weeks or more, based on the idea that nascent "cardiac activity" emerges from a
small cluster of cells at that time. However, South Carolina's law is based on a
factual premise—the existence of a fetal heartbeat as early as six weeks of
gestation—that has been deemed factually and medically inaccurate by numerous
medical professionals.
As an initial matter, I note the same terminology is not appropriate at all stages
of pregnancy and, at this early stage, medical experts universally identify the
fertilized egg as an embryo; it is not yet a fetus. See "Baby" or "unborn child,"
ACOG Guide, supra (stating "[c]entering the language on a future state of a
pregnancy is medically inaccurate," so generalized lay terms, such as "baby," are not
clinically appropriate to describe every stage of pregnancy); id. (noting that, until at
least eight weeks after the first date of the last menstrual period, or "LMP," the term
"embryo" is the medically correct term; after that point until delivery, the appropriate
term is "fetus"); cf. S.C. Dep't of Health & Env't Control, Embryonic & Fetal
Development, 6 (2018), https://scdhec.gov/sites/default/files/Library/ML-
017049.pdf (stating an embryo does not become a fetus until approximately eleven
to twelve weeks after LMP or nine to ten weeks after conception).
Further, while a pregnancy may be characterized as being at six weeks
gestational age, the embryo is not actually at the same level of development because
the gestational age starts about two weeks ahead of conception. See Cleveland
Clinic, "Fetal Development: Stages of Growth,"
https://my.clevelandclinic.org/health/articles/7247-fetal-development-stages-of-
growth (observing a typical pregnancy lasts approximately forty weeks and
physicians count the start of a pregnancy from the first day of the LMP because that
date is more readily ascertainable than the date of conception, and this is referred to
as the gestational age; the gestational age is, therefore, about two weeks ahead of
when conception actually occurs). A pregnancy that is at six weeks gestational age
(counted from the first date of the LMP) is actually at an embryonic age of only four
weeks of development (counted from the date of conception).
In addition, physicians who specialize in reproductive health have stated that,
at six weeks, an embryo has not yet developed a heart. See, e.g., "Fetal heartbeat,"
ACOG Guide, supra. The chambers of the heart do not develop until a fetus is at
least at seventeen to twenty weeks of gestation, at which point, a true heartbeat can
be detected. Id. At six weeks, what exists in the quarter-inch-long embryo is solely
a collection of emerging cardiac cells, which are just beginning to create a flutter of
electrical impulses. There is no detectible sound that can be heard by a medical
provider. Rather, the "sound" that is heard is the sound manufactured by the
ultrasound machine itself, which translates the electrical impulses. See "Heartbeat
bill," ACOG Guide, supra. Justice Kittredge takes issue with the source for this
information; however, this information was discussed at length during oral argument
and neither the Respondents nor the Petitioners took issue with the accuracy of the
information.
Justice Kittredge's criticism of my use of information allegedly not in the
record would be justified under normal circumstances, but is it justified in this case?
Maybe, maybe not. Two members of this Court requested that the Court ask the
parties to submit additional information for our consideration. This type of request
is not uncommon, in fact similar requests were made recently in two other cases:
Quinn24 and Protestant Episcopal Church.25 However, three members of the Court
placed an unusual condition on our request for additional information. They
required the parties to be asked if they objected to the request; the Respondents
objected, and compliance was not required. We did not need the permission of the
parties. In my view, the imposition of this condition intentionally thwarted efforts
to get beneficial information that would assist the Court in this weighty decision.
I accept full responsibility for seeking information that would facilitate a
better understanding of the subject matter and the real issues before the Court. The
misnomer of the title of the Act vindicates the request for supplemental information.
Misinformation is pervasive in the abortion debate. Misinformation has influenced
public opinion and fanned the flames of hostility in this very sensitive discussion. I
will not willingly participate in the perpetuation of misinformation. I stand by efforts
to be better informed on the true issues before the Court. Men do not get pregnant.
Now back to the task at hand.
As medical experts have explained, at this early stage, a substantial number of
women do not even know that they are pregnant, so there is no realistic opportunity
to make a medical decision as to the (unknown) pregnancy at this point. Medical
experts have indicated there are many reasons why a woman may not know she is
pregnant at six weeks, including the fact that the pregnancy was not anticipated, the
existence of hormonal variations, the presence of spotting after pregnancy that can
be mistaken for a period, a lack of education, and a lack of immediate access to
medical care. Women may face hurdles in obtaining timely medical care due to
poverty, work schedules, existing childcare obligations, or other personal
circumstances. In addition, most home pregnancy tests do not give results until at
least five or six weeks into the pregnancy, and they often have to be repeated to
confirm a pregnancy.
In light of the foregoing, a restriction at this early stage of pregnancy is, for
all practical purposes, the equivalent of a de facto ban on abortion. It effectively
usurps a woman's authority to make medical decisions regarding her reproductive
health, including the decision whether to have children, and places this power,
instead, solely in the hands of a political body. While government officials have
assumed the role of overseer of a woman's reproductive health, it is troubling that
24
State v. Quinn, 430 S.C. 115, 843 S.E.2d 355 (2020).
25
Protestant Episcopal Church in the Diocese of S.C. v. Episcopal Church, No.
28095, 2022 WL 3560664 (S.C. Sup. Ct. filed Aug. 17, 2022).
the woman who is tasked with the burden of pregnancy, its associated health risks,
and its lifetime of financial and emotional impacts, would no longer have a voice in
this important and very personal decision. Further, even assuming that a woman's
right to control her reproductive health decisions at this early stage is subject to the
vote of a political body (a question that must be decided today), it is particularly
concerning when considering the fact that the law has been enacted by a political
body that is overwhelmingly comprised of men.
Moreover, this broad stroke to eliminate a woman's right to make her own
reproductive health decisions at such an early stage of pregnancy affects more than
just the pregnant woman. These decisions have traditionally been made in
consultation with a woman's medical provider, along with family, including a spouse
or partner, and with considerations as to a woman's existing physical and mental
health, employment and school obligations, any existing children, and financial
circumstances. The Act substitutes this private and very personal decision-making
process with the collective view of a political body, and it interferes with a woman's
ability to obtain medical advice and treatment during this critical time by threatening
physicians with $10,000 fines, felony convictions, and imprisonment. See S.C. Code
Ann. §§ 44-41-650(B), -680(D) (Supp. 2022) (stating the penalties for violations).
When life begins is a theoretical and religious question upon which there is
no universal agreement among various religious faiths. In fact, because there are
differing views on abortion and when life begins among religious faiths, challenges
are already being made to some abortion laws on the basis they violate religious
freedom by elevating one faith's views over the views of others. 26 The question of
26
For example, while Florida courts had previously found its state constitution
protected privacy rights and abortion rights, a newly enacted abortion ban that
provides no exceptions for rape and incest and that criminalizes care by physicians,
as well as counseling about abortion provided by others (including clergy) is being
challenged by clergy members of five religions on the basis that it violates First
Amendment rights to freedom of speech, religious liberty, and the separation of
church and state under the Establishment Clause, which prohibits the government
from favoring one religion over another. The lawsuits allege, inter alia, that the ban
infringes on faiths that believe life begins at birth or other points, not at conception,
and interferes with the ability of clergy to counsel their members regarding abortion.
See Hafner v. State, No. 2022-014370-CA-01 (Fla. Cir. Ct. filed Aug. 1, 2022);
Chotso v. State, No. 2022-014371-CA-01 (Fla. Cir. Ct. filed Aug. 1, 2022); Priest
of the Episcopal Church in Miami-Dade Cnty. v. State, No. 2022-014372-CA-01
(Fla. Cir. Ct. filed Aug. 1, 2022); Pomerantz v. State, No. 2022-014373-CA-01 (Fla.
when life begins is distinguishable from the constitutional questions raised here
regarding whether a woman has the right to make her own medical decisions
regarding her reproductive health (in consultation with her medical provider and
based on scientific evidence). At its core, the question the Court faces today is can
the government—by force of law—force a woman to give birth without her consent?
As will be discussed, for a reasonable period of time, a woman, rather than the
government, retains this important right to choose whether to become a mother.
This right to choose is often characterized as "pro-choice," but this is not the
same as being "pro-abortion." Many individuals who would not choose abortion for
themselves on religious, political, or other grounds would never presume to impose
their beliefs on their neighbors or delve into the private conversations of a woman
and her medical provider.
With this understanding of the terms and issues that are before the Court, I
will examine Petitioner's constitutional challenges to South Carolina's fetal heartbeat
law.
B. Void ab initio
Petitioners argue, as a threshold issue, that because South Carolina's Act was
unlawful on the day it was passed in 2021, it was and remains void ab initio as a
matter of South Carolina law. I agree; however, it is unnecessary to address this
issue because the majority of the Court agrees that the Act violates a woman’s right
to privacy as guaranteed by article 1, section 10 of our state’s constitution. As such,
the question is moot and not capable of being repeated.
C. Right Against Unreasonable Invasions of Privacy
This Court is presented today with a novel question involving our state
constitution's right to privacy. This right to privacy is deeply rooted in our federal
and state jurisprudence and history. Consequently, it is appropriate to review
precedent from the United States Supreme Court and our appellate courts to
understand the foundation and the evolutionary interpretation of this right. I begin
by chronicling the decisions from the United States Supreme Court leading up to
Dobbs v. Jackson Women's Health Organization, 142 S. Ct. 2228 (2022), which
precipitated the case currently before us.
Cir. Ct. filed Aug. 1, 2022); Capo v. State, No. 2022-014374-CA-01 (Fla. Cir. Ct.
filed Aug. 1, 2022).
Initially, in Griswold v. Connecticut, the United States Supreme Court
reiterated that the Fourth and Fifth Amendments to the United States Constitution
encompassed the "right to privacy" to ensure "the sanctity of a man's home and the
privacies of life." 381 U.S. 479, 484–85 (1965). The Court recognized the
penumbral right of privacy flowing from these amendments created a "legitimate"
right. Id. at 485. The Court consequently struck down a Connecticut law
criminalizing the use of contraceptives: "Would we allow the police to search the
sacred precincts of marital bedrooms for telltale signs of the use of contraceptives?
The very idea is repulsive to the notions of privacy surrounding the marriage
relationship." Id. at 485–86 (emphasis added).
Then, in Eisenstadt v. Baird, the Court found similar constitutional
repugnance with a Massachusetts law prohibiting the distribution of contraceptives
to single persons. 405 U.S. 438 (1972). Logically, the Court extended the reasoning
of Griswold because marriage is an independent association of two individuals:
If the right of privacy means anything, it is the right of the individual,
married or single, to be free from unwarranted governmental intrusion
into matters so fundamentally affecting a person as the decision
whether to bear or beget a child.
Id. at 453 (emphasis added).
Subsequently, the Court rendered its most controversial ruling, a ruling which,
at the time of this writing, has been overturned, Roe v. Wade. There, the Court traced
the amendments from which the right of privacy emanates: The First, the Fourth,
the Fifth, and the Ninth. 410 U.S. 113, 152. However, the Court identified the
concept of ordered liberty in the Fourteenth Amendment as another vehicle for the
right to privacy. Id. The Court did not firmly hold if one source trumped the other.
Id. at 153. Regardless of its source, the Court held the right to privacy was broad
enough to encompass a person's decision whether or not to terminate a pregnancy.
Id. Before the constitutional jolt delivered by overturning Roe, Americans enjoyed
nearly five decades of its precedent.
In the interim, the Court continued to recognize that "in some situations the
Constitution confers a right of privacy." Runyon v. McCrary, 427 U.S. 160, 177
(1976). The Court concluded, "A person's decision whether to bear a child and a
parent's decision concerning the manner in which his child is to be educated may
fairly be characterized as exercises of familial rights and responsibilities. But it does
not follow that because government is largely or even entirely precluded from
regulating the child-bearing decision, it is similarly restricted by the Constitution
from regulating the implementation of parental decisions concerning a child's
education." Id. at 178 (emphasis added).
One year later, the Court concluded the right to privacy, in connection with
decisions regarding procreation, extended to both adults and minors. Carey v.
Population Servs., Int'l, 431 U.S. 678, 693 (1977). In so ruling, the Court again
recognized "that one aspect of the 'liberty' protected by the Due Process Clause of
the Fourteenth Amendment is 'a right of personal privacy, or a guarantee of certain
areas or zones of privacy.'" Id. at 684 (quoting Roe, 410 U.S. at 152). The Court
further noted that "the decisions that an individual may make without unjustified
government interference are personal decisions" related to marriage, procreation,
contraception, family relationships, and child rearing and education. Id. at 684-85.
(emphasis added).
Subsequently came another monumental decision, Planned Parenthood of
Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). In a split decision, the
Court reconsidered the source of the right to privacy. Writing for the plurality,
Justice Kennedy answered the question posed by Roe. He reasoned that the right to
make the decision regarding abortion rested in the concept of ordered liberty in the
Due Process Clause of the Fourteenth Amendment. Id. at 847–50. Although it
seems the right to privacy took a backseat to the guarantee of liberty, liberty
encompassed those rights from which privacy was first identified: "The most
familiar of the substantive liberties protected by the Fourteenth Amendment are
those recognized by the Bill of Rights." Id. at 847. Stated differently, liberty is a
broader concept than privacy and, thus, necessarily contains the right to privacy.
Our constitutionally ordered society centers on the same goals of liberty and privacy
and the original Bill of Rights drafted shortly after the founding of our nation:
These matters, involving the most intimate and personal choices a
person may make in a lifetime, choices central to personal dignity and
autonomy, are central to the liberty protected by the Fourteenth
Amendment. At the heart of liberty is the right to define one's own
concept of existence, of meaning, of the universe, and of the mystery of
human life.
Id. at 851 (emphasis added).
Although not directly on point with the instant case, several other decisions
concerning personal freedoms and liberty established the foundation for the right to
privacy. They, nevertheless, have an important place in our jurisprudence of
freedom. See, e.g., Loving v. Virginia, 388 U.S. 1 (1967) (holding prohibitions on
interracial marriage violate the Equal Protection and Due Process Clauses of the
Fourteenth Amendment); Lawrence v. Texas, 539 U.S. 558 (2003) (concluding laws
criminalizing same sex relations violates the Fourteenth Amendment); Obergefell v.
Hodges, 576 U.S. 644 (2015) (ruling the right to marriage inherent in the Due
Process and Equal Protection Clauses cannot be denied to same sex couples).
Recently, the United States Supreme Court delivered a catastrophic blow to
stare decisis, which severed the ongoing development of privacy and ordered liberty.
In Dobbs, the Court ruled that the right to obtain an abortion does not fall within the
right to privacy or the concept of ordered liberty in the Due Process Clause of the
Fourteenth Amendment. 142 S. Ct. at 2242–43. The Court left untouched the
broader right to privacy—at least it said—and distinguished the right to obtain an
abortion from both privacy and liberty. Id. at 2257–58. The Court divorced abortion
from privacy because "[a]bortion destroys what those decisions call 'potential life'
and what the law at issue in this case regards as the life of an 'unborn human being.'"
Id. at 2258.
At the expense of Americans' right to privacy, the Dobbs majority relied
heavily on the following troubling argument: "These attempts to justify abortion
through appeals to a broader right to autonomy and to define one's 'concept of
existence' prove too much. Those criteria, at a high level of generality, could license
fundamental rights to illicit drug use, prostitution, and the like." Id. (emphasis
added). The use of the phrase "at a high level of generality" is noteworthy—
translated meaning: within the realm of possibility but highly improbable. It appears
that the Court recognizes that this argument is very weak and relies on extreme, if
not absurd, analogies.
While the Dobbs decision reversed decades of precedent establishing that the
right to an abortion emanated from provisions of the federal constitution, our
analysis does not end there because our state constitution explicitly guarantees South
Carolinians an express right to privacy:
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.
S.C. Const. art. I, § 10 (emphasis added).
Much is said about the importance of the intent or thoughts of the Committee
to Make a Study of the Constitution of South Carolina of 1895 ("The West Study
Committee") in recommending the language in article I, section 10. Both Petitioners
and Respondents discuss the intent of the language in their briefs. Justice James
relies heavily on his perceived intent of this language in his dissent. Petitioners,
Respondents, and members of this Court refer to notes, minutes of the committee
meetings, statements made during the meeting, and letters to and from members of
the committee and outside consultants. All of which are interesting but unavailing
in our interpretation of the breadth of the privacy rights addressed in article I, section
10.
Unfortunately, the parties and this Court have raised the West Study
Committee to an undeserved level of importance in the exclusive judicial task of
interpreting our state's constitution. This Court's unintended role in this undeserved
elevation of importance is crucial in that it created a false appearance of high
importance in our prior opinions by not clearly disabusing the notion that the
Committee had any authority or part in the interpretation of our constitution. The
Court's discussion of members' statements and meeting minutes gave the appearance
that they were somehow ultra-important. Yet, all the while, the Court recognized
the Committee's lack of binding authority and utility. See State v. Forrester, 343
S.C. 637, 647 n.7, 541 S.E.2d 837, 842 n.7 (2001) ("It is important to note that
committee minutes will not be controlling of the intent behind, or interpretation of,
our state constitution. This fact was even noted in Committee Member Sinkler's
observation that their discussion would not control any subsequent interpretation.
We include these discussions for their historical context and interest." (citations
omitted)). Perhaps, if the Court had been more direct in identifying the true status
of the West Study Committee the debate on the intent of its members would be
unnecessary. The West Study Committee was just that—a study committee. It was
not the General Assembly and it was not a constitutional convention.
In South Carolina, the only entities with the authority to propose
constitutional provisions are the General Assembly and an approved constitutional
convention. S.C. Const. art. XVI, §§ 1, 3. At bottom, the General Assembly is the
official drafter of the privacy provision. The actions of the West Study Committee
may be historically important but have no relevance when interpreting our
constitution. The Court is constitutionally constrained to consider the intent of the
General Assembly and the intent of the electorate. 27
27
Although the parties and some members of this Court put substantial emphasis on
committee reports and public news sources, our analysis is not bound by the opinions
I emphasize today: "It is important to note that committee minutes will not
be controlling of the intent behind, or interpretation of, our state constitution."
Forrester, 343 S.C. at 647 n.7, 541 S.E.2d at 842 n.7. The final words of the
constitution, submitted to the people and their representatives, has more meaning
than the discussions of the study committee. See 16 C.J.S. Constitutional Law § 108
(2022) ("Ultimately, it is the final product—the constitution actually submitted to
the people for adoption, as they understood it—that is controlling."). 28 I believe and
reaffirm that the right against unreasonable invasions of privacy "applies both within
and outside the search and seizure context." Forrester, 343 S.C. at 644, 541 S.E.2d
at 841.
The General Assembly's intent also stands as a persuasive basis to interpret
the right broadly. Article I, section 10 was drafted following the United States
Supreme Court's 1965 Griswold decision, which recognized a right to privacy in the
federal constitution. When the General Assembly acts, we presume it knows how
terms and phrases have been used in the past. See State v. Bridgers, 329 S.C. 11, 14,
495 S.E.2d 196, 197–98 (1997) ("The General Assembly is presumed to be aware of
the common law, and where a statute uses a term that has a well-recognized meaning
in the law, the presumption is that the General Assembly intended to use the term in
that sense." (internal citation omitted)). Therefore, without using any limiting
of one person, legislator, or commentator. These are only non-binding
considerations pursuant to our duty under article V of the South Carolina
Constitution: "When this Court is called to interpret our Constitution, it is guided
by the principle that both the citizenry and the General Assembly have worked to
create the governing law." State v. Long, 406 S.C. 511, 514, 753 S.E.2d 425, 426
(2014) (emphasis added).
28
The notion that the West Study Committee was a "close cousin" to a constitutional
convention is an overstatement at best. Although both bodies considered revisions
or amendments to a constitution, the two are very different in organization and
authority. A constitutional convention assembles at the behest of the voting public
(after approval of the legislature) and must consist of a number equal to the largest
body in the General Assembly, which, today, would be 124. S.C. Const. art. XVI,
§ 3. Its constitutional revisions or amendments are put before the electorate
unchanged. The West Study Committee was formed by the legislature to study the
constitution and consisted of less than 10 members including several legislators. Its
recommendations could be, and in some instances were, ignored by the legislature.
language, the General Assembly understood the broad context of privacy when it
passed the provision.
We interpret our constitution to ensure South Carolinians retain the rights it
guarantees. "It is well settled that the interpretation of the state's constitution is a
matter for the courts." Baddourah v. McMaster, 433 S.C. 89, 103, 856 S.E.2d 561,
568 (2021). "State courts may afford more expansive rights under state
constitutional provisions than the rights which are conferred by the Federal
Constitution." State v. Easler, 327 S.C. 121, 131 n.13, 489 S.E.2d 617, 622 n.13
(1997), overruled on other grounds by State v. Greene, 423 S.C. 263, 814 S.E.2d
496 (2018). "This relationship is often described as a recognition that the federal
Constitution sets the floor for individual rights while the state constitution
establishes the ceiling." Forrester, 343 S.C. at 643, 541 S.E.2d at 840.
Because the process to amend our constitution involves the General Assembly
and the public, we have stated that we will look to the ordinary and plain meaning
of the terms and employ rules similar to statutory construction:
When this Court is called to interpret our Constitution, it is guided by
the principle that both the citizenry and the General Assembly have
worked to create the governing law. Therefore, the Court will look at
the "ordinary and popular meaning of the words used," keeping in mind
that amendments to our Constitution become effective largely through
the legislative process. For this reason, "the Court applies rules similar
to those relating to the construction of statutes" to arrive at the ultimate
goal of deriving the intent of those who adopted it.
City of Rock Hill v. Harris, 391 S.C. 149, 153, 705 S.E.2d 53, 54–55 (2011) (internal
citations omitted).
At the outset, the presentation of the right of privacy in the text of article I,
section 10 is instructive because it reveals the General Assembly clearly and
expressly delineated the right of privacy from the search and seizure context. The
title of section 10 in our Declaration of Rights reads, "SECTION 10. Searches and
seizures; invasions of privacy." S.C. Const. art. I, § 10. Notably, a semicolon
separates the two, independent clauses. Manual on Usage & Style § 1.13 (Tex. L.
Rev. ed., 14th ed. 2017). Further, the text of the constitutional provision separates
"unreasonable searches and seizures" from "unreasonable invasions of privacy"
using the word "and," thus indicating the connection of separate and precise
meanings. See Conjunctive/Disjunctive Canon, Black's Law Dictionary (11th ed.
2019) ("[A]nd joins a conjunctive list to combine items."). With this in mind, I begin
my analysis by outlining how our appellate courts have interpreted the right to
privacy. While some of these cases considered the right to privacy in the search and
seizure context, it is evident that we have recognized that this right is not limited to
searches and seizures. Rather, it is a discrete right established by our state
constitution.
First, in Singleton v. State, we held that the state violates the right to privacy
when it forces an inmate to take medication for purposes of facilitating execution.
313 S.C. 75, 89, 437 S.E.2d 53, 61 (1993). There, the state needed to treat
Singleton's incompetence by medication before execution. Id. at 87, 437 S.E.2d at
60. Although an inmate has a limited privacy interest, the inmate must be free from
unwarranted medical intrusions despite the state's penological interest. Id.Importantly, we recognized Singleton had a fundamental right in his medical care
outside the search and seizure context for the first time. Any objective reading of
Singleton requires a conclusion that the Court officially recognized a right to bodily
autonomy encompassed in our right to privacy that is protected by article I, section
10. This right to bodily autonomy is not absolute and may be interfered with when
to do so is in the best interest of the person and is reasonable.
In Forrester, we emphasized that this right to privacy did not protect South
Carolinians only in the search and seizure context. Forrester, 343 S.C. at 644, 541
S.E.2d at 841 ("South Carolina and the other states with a right to privacy provision
imbedded in the search and seizure provision of their constitutions have held such a
provision creates a distinct privacy right that applies both within and outside the
search and seizure context." (emphasis added)). I disagree with the notion that this
statement is dicta. Forrester was specifically decided on the basis of the distinct
right to privacy. Id. at 645, 541 S.E.2d at 841.
We premised our holding in Forrester on a survey of other states with similar
provisions and the intent behind the adopting of our own provision. At the time,
nine states and South Carolina had privacy provisions. Id. at 644 n.3, 541 S.E.2d at84 n.3. Now, that number has grown to ten states and South Carolina. 29 We again
relied on other states' interpretations of their privacy provisions in recognizing our
29
New Hampshire's provision was added in November 2018. N.H. Const. art. 2-b;
Pam Greenberg, New Hampshire Voters Approve Constitutional Amendment on
Privacy, The NCSL Blog (Nov. 14, 2018),
https://www.ncsl.org/blog/2018/11/14/new-hampshire-voters-approve-
constitutional-amendment-on-privacy.aspx.
own extends beyond the search and seizure context. 30 See, e.g., State v. Perry, 610
So. 2d 746, 755 (La. 1992) ("[T]he right to decide what is to be done with one's brain
and body; the right to control one's mind and thoughts; and the freedom from
unwarranted physical interference with one's person."), cited with approval in
Singleton, 313 S.C. at 88, 437 S.E.2d at 60–61.
Turning to the instant case, I conclude a law regulating or banning abortion
implicates the right against unreasonable invasions of privacy31 in article I, section
10.32 Under Singleton and Forrester, our touchstones, the right to privacy extends
30
Similarly, the Supreme Court of Alaska held their privacy clause extended well
beyond the search and seizure context. State v. Planned Parenthood of Alaska, 35
P.3d 30 (Alaska 2001). Relying on decades of caselaw development, the court
found, "With or without legislative action, this guarantee has the usual attributes of
a constitutional provision: its broad contours and particular applications fall
within the judiciary's province and are subject to definition, interpretation, and
refinement through the traditional course of adjudication, case by case." Id. at 38–
39. The court subsequently held a "Parental Consent Act" did not "strike the proper
constitutional balance between the State's compelling interests and a minor's
fundamental right to privacy." State v. Planned Parenthood of Alaska, 171 P.3d 577,
579, 581 (Alaska 2007) ("Because this right to privacy is explicit, its protections are
necessarily more robust and 'broader in scope' than those of the implied federal right
to privacy.").
31
See Am. Acad. of Pediatrics v. Lungren, 940 P.2d 797, 813 (Cal. 1997) ("[T]he
interest in autonomy privacy protected by [the privacy] clause includes a pregnant
woman's right to choose whether or not to continue her pregnancy."); Women of the
State of Minn. v. Gomez, 542 N.W.2d 17, 19 (Minn. 1995) (interpreting the right
against unreasonable searches and seizures to include a fundamental right of privacy,
including a right to pre-viability abortion); Armstrong v. State, 989 P.2d 364, 377
(Mont. 1999) (holding the right of individual privacy protects a woman's right to
have a pre-viability abortion); Right to Choose v. Byrne, 450 A.2d 925, 933–94 (N.J.
1982) (holding the right to life, liberty, and pursuit of happiness includes privacy
and the right to choose to have an abortion). But see, e.g., Hope Clinic for Women,
Ltd. v. Flores, 991 N.E.2d 745 (Ill. 2013) (finding no right to an abortion in the state's
privacy clause but finding that the state due process clause provides abortion
protections).
32
We are not alone in finding a right to bodily autonomy in our state constitution.
In Hodes & Nauser, MDs, P.A. v. Schmidt, the Supreme Court of Kansas concluded
outside of the search and seizure context and encompasses "unwarranted medical
intrusions." Singleton, 313 S.C. at 89, 437 S.E.2d at 61. When the General
Assembly enters into the decision-making process in reproductive and medical care,
it necessarily determines "matters so fundamentally affecting a person as the
decision whether to bear or beget a child."33 Eisenstadt, 405 U.S. at 453.
Because the right against unreasonable invasions of privacy is expressly
enumerated in our constitution, it guarantees a fundamental right. When legislation
restricts or impairs a fundamental right under the federal constitution, 34 we review
its constitutionality under a strict scrutiny standard. In re Treatment & Care of
Luckabaugh, 351 S.C. 122, 140, 568 S.E.2d 338, 347 (2002); see also Lane v.
Gilbert Constr. Co., 383 S.C. 590, 600, 681 S.E.2d 879, 884 (2009) ("The right to
trial by jury is a fundamental right. As such, any abridgement of that right is subject
to strict scrutiny." (internal citation omitted)). Additionally, other jurisdictions have
women have a right to "make decisions about her body" as a natural consequence of
"equal and inalienable natural rights, among which are life, liberty, and the pursuit
of happiness" in Kansas's Bill of Rights. 440 P.3d 461, 466 (Kan. 2019). There, the
court compared its Bill of Rights with the federal Fourteenth Amendment. Id. at
471. Finding its provision broader than "liberty" in the Fourteenth Amendment, the
court concluded, "Among the rights is the right of personal autonomy." Id. The
court also employed a strict scrutiny analysis when reviewing if the state infringed
on those state constitutional rights. Id. at 493; see also id. at 495 ("In short, although
there are no Kansas cases applying strict scrutiny to natural rights, [] cases suggest
the standard is available."). As a first step, the court held that the natural right of
personal autonomy is fundamental. Id. at 499. The court, however, remanded the
case to the trial court for a full determination of the strict scrutiny analysis. Id. at
503.
33
See also State v. Planned Parenthood of Alaska, 171 P.3d 577, 581–82 (Alaska
2007) ("Included within the broad scope of the Alaska Constitution's privacy clause
is the fundamental right to reproductive choice. As we have stated in the past, 'few
things are more personal than a woman's control of her body, including the choice
of whether and when to have children,' and that choice is therefore necessarily
protected by the right to privacy.").
Specifically, courts use this standard when laws affect unenumerated rights in the
34
Due Process Clause of the Fourteenth Amendment.
employed a strict scrutiny review when a law implicates a fundamental right to
privacy, as shall be discussed below.35
The state, at some point, has a legitimate interest in protecting fetal life. See,
e.g., Roe, 410 U.S. at 163 ("State regulation protective of fetal life after viability thus
has both logical and biological justifications."), overruled by Dobbs v. Jackson
Women's Health Org., 142 S. Ct. 2228 (2022). The state's interest must be balanced
against the fundamental right to privacy guaranteed by the South Carolina
Constitution. The Dobbs Court said that "Roe and Casey each struck a particular
balance between the interests of a woman who wants an abortion and the interests
35
Finding Florida's fundamental right to privacy implicated by the imposition of a
waiting period to obtain an abortion, the Supreme Court of Florida applied strict
scrutiny to the regulation. Gainesville Woman Care, LLC v. State, 210 So. 3d 1243,
1253 (Fla. 2017). The court quoted a previous Florida case:
Florida's privacy provision is clearly implicated in a woman's decision
of whether or not to continue her pregnancy. We can conceive of few
more personal or private decisions concerning one's body that one can
make in the course of a lifetime, except perhaps the decision of the
terminally ill in their choice of whether to discontinue necessary
medical treatment.
In re T.W., 551 So. 2d 1186, 1192 (Fla. 1989). The court in Gainesville Woman
Care went on to say, "Florida's constitutional right of privacy encompasses a
woman's right to choose to end her pregnancy. This right would have little substance
if it did not also include the woman's right to effectuate her decision to end her
pregnancy." Gainesville Woman Care, LLC v. State, 210 So. 3d 1243, 1254 (Fla.
2017). There, Florida's constitution provides for the right to "be let alone and free
from governmental intrusion into [one's] private life." Id. at 1246 (quoting Fla.
Const. art. I, § 23). Because the right is fundamental, the court recognized the law
must be justified by a compelling interest through the least restrictive means. Id.
The law required a woman to take two trips to a medical provider, one to a referring
physician and one to an abortion provider at least twenty-four hours later. Id. at
1261. Because no other medical procedure required a twenty-four-hour waiting
period—particularly where the waiting period could be even longer—the court
concluded the law was not the least restrictive means to achieve the state's interests.
Id. Regardless, the court reasoned the state had no compelling interest in requiring
physicians to inform patients of social and moral concerns before terminating a
pregnancy. Id. at 1262.
of what they termed 'potential life.'" Dobbs, 142 S. Ct. at 2257. In overruling Roe,
the Dobbs Court challenged the Roe Court’s basis for acting, not its core analysis.
The Court found that there was no explicit right to privacy in the federal constitution.
Therefore, I mirror that analysis today when I weigh the state's interest with a
person's right to be free from unreasonable invasions of privacy.
"To survive strict scrutiny the Act must meet a compelling state interest and
be narrowly tailored to effectuate that interest." Luckabaugh, 351 S.C at 140–41,
568 S.E.2d at 347. The point at which a state has had a compelling interest in
regulating and banning abortions has been identified as viability. Roe, 410 U.S. at
163, overruled by Dobbs v. Jackson Women's Health Org., 142 S. Ct. 2228 (2022).
The United States Supreme Court previously relied on this because after viability a
state has an interest in preserving fetal life possible outside of the womb. Id.Additionally, quickening has been a historical basis at which the state may ban or
criminalize abortion procedures. See, e.g., Dobbs, 142 S. Ct. at 2249 ("We begin
with the common law, under which abortion was a crime at least after 'quickening.'").
Therefore, the state does not always have a compelling interest at every stage of
pregnancy. Although the Dobbs Court abandoned the need to consider this
balancing analysis under the federal constitution, the Court’s reasoning does not
apply to South Carolina’s constitution. There must be an inflection point for a
balancing analysis under the South Carolina Constitution.
In the instant case, the Act prohibits an abortion after a "fetal heartbeat" has
been detected. S.C. Code Ann. § 44-41-680(A) (Supp. 2022). The Act defines a
fetal heartbeat broadly, as any "cardiac activity." Id. § 44-41-610(3). As discussed,
this activity can be present as early as six weeks into a pregnancy.
The Act does not logically draw a line at which the state can regulate, and it
effectively bans all abortions. Banning abortions at the stage of detectable
embryonic "cardiac activity," presumably at the six-week gestation period,
unreasonably exceeds the point at which the state has a compelling interest. It is
unreasonable for the state to assert that it has a compelling interest in the protection
of a quarter-inch-long amorphous collection of cells. As evidence of this, the rape
and incest exceptions provide for a cutoff at twenty weeks. Furthermore, defining
"fetal heartbeat" as any "cardiac activity" is clearly overbroad and not narrowly
tailored. The arbitrariness of this six-week restriction, without the consultation and
expertise of the medical provider, solidifies the fact that the Act is not narrowly
tailored.
Moreover, in Singleton, we recognized, "An inmate in South Carolina has a
very limited privacy interest when weighed against the State's penological
interest; however, the inmate must be free from unwarranted medical intrusions."
313 S.C. at 89, 437 S.E.2d at 61. The balancing there is helpful to us because, even
when a large state interest was weighed against an inmate's right, the personal right
pertaining to medical care, treatments, and decisions could not be overcome.
Similarly, here, the state's limited interest in regulating embryos does not trump an
individual's bodily integrity.
While a strict scrutiny analysis aids in balancing competing interests, our
constitution provides that only unreasonable invasions of privacy are unlawful.
Therefore, reasonableness provides a limiting principal, and the right to privacy in
article I, section 10 is not absolute. The constitution protects against only
unreasonable invasions of privacy.
I conclude banning abortions after the detection of embryonic "cardiac
activity" is an unreasonable intrusion into a person's private reproductive health
decisions. The detection of embryonic "cardiac activity" frequently occurs before
a woman knows she is pregnant. Because the Act often prevents a medical decision
before a woman knows she is pregnant, it unreasonably attempts to further the state's
interests in private health decisions.
The reasonableness analysis here looks like a rational-basis review. 36 "A
classification will survive rational basis review when it bears a reasonable relation
to the legislative purpose sought to be achieved, members of the class are treated
alike under similar circumstances, and the classification rests on a rational basis."
Bodman v. State, 403 S.C. 60, 69, 742 S.E.2d 363, 367 (2013). Further, "those who
challenge the validity of one under rational basis review must 'negate every
conceivable basis which might support it.'" Id. at 69–70, 742 S.E.2d at 368 (quoting
Lee v. S.C. Dep't of Nat. Res., 339 S.C. 463, 470 n. 4, 530 S.E.2d 112, 115 n. 4
(2000)).
Even giving deference to the General Assembly, whether by a reasonableness
analysis or, here, rational-basis review, the Act fails to survive scrutiny. First, as
discussed, the Act effectively prevents women from making a health decision before
they even are aware of their pregnancies. Second, by its terms, the Act does not
36
When a law does not differentiate a suspect class or infringe upon a fundamental
right, this Court will employ a rational-basis review. Bodman v. State, 403 S.C. 60,
69, 742 S.E.2d 363, 367 (2013).
allow a woman to make an informed choice. In passing the Act, the General
Assembly found, "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(8). The General Assembly set out with the goal to
facilitate women's decisions over their own bodies. Because women cannot
definitively know about an unexpected pregnancy before any embryonic cellular
"cardiac activity" is detectable, there is no reasonable relation to the legislative
purpose expressed in subsection 2(3). Therefore, even though the constitution does
not mandate rational-basis review, the Act nevertheless fails that low-threshold
scrutiny.
Because the Act in its present form does not pass constitutional review, I find
it violates our state constitution beyond a reasonable doubt. I pass no judgment on
the constitutionality of future acts and legislative attempts to regulate abortion.
Today, this finding is limited to declaring the so-called "heartbeat" law to be an
unreasonable invasion of privacy.
D. Equal Protection
Petitioners argue the Act violates equal protection under the South Carolina
Constitution. Specifically, Petitioners contend the Act discriminates against three
classifications of individuals: (1) women who seek abortions for the enumerated
exceptions as opposed to any other reason, (2) women who seek abortion versus
those who decide to carry their pregnancies to term, and (3) women as opposed to
men. Further, Petitioners argue the Act fails to survive all levels of scrutiny,
regardless of which this Court applies.
Conversely, Respondents argue the Act—and any regulations relating to
pregnancy—are not impermissible classifications based on sex. Additionally,
Respondents cite to the Dobbs decision to support the proposition that an equal
protection claim is foreclosed by federal precedent. Respondents nevertheless assert
that the Act classifies based on gender and pregnancy permissibly under South
Carolina caselaw. Finally, Respondents contend the Act survives even heightened
scrutiny.
Fundamentally, the Act treats pregnant women who are victims of rape and
incest and those who suffer grave health emergencies differently from all remaining
pregnant women. For example, the Act affords rape and incest victims twenty weeks
to consider their options. S.C. Code Ann. § 44-41-680(B)(1)–(4) (Supp. 2022). In
contrast, all remaining pregnant women must make the weighty decision whether to
continue the pregnancy within, in most cases, six weeks, according to the medical
authorities previously discussed. Id. § 44-41-680(A).
Turning to the substance of equal protection jurisprudence, our constitution
provides, "[N]or shall any person be denied the equal protection of the laws." S.C.
Const. art. I, § 3. "Equal protection 'requires that all persons be treated alike under
like circumstances and conditions, both in privileges conferred and liabilities
imposed.'" Doe v. State, 421 S.C. 490, 504, 808 S.E.2d 807, 814 (2017) (quoting
GTE Sprint Commc'ns Corp. v. Pub. Serv. Comm'n of S.C., 288 S.C. 174, 181, 341
S.E.2d 126, 129 (1986)). To succeed, an equal protection claim must have a showing
that similarly situated persons receive disparate treatment. Grant v. S.C. Coastal
Council, 319 S.C. 348, 354, 461 S.E.2d 388, 391 (1995). Once a classification is
identified, "[c]ourts generally analyze equal protection challenges under one of three
standards: (1) rational basis; (2) intermediate scrutiny; or, (3) strict scrutiny."
Denene, Inc. v. City of Charleston, 359 S.C. 85, 91, 596 S.E.2d 917, 920 (2004).
"The equal protection clause prevents only irrational and unjustified
classifications, not all classifications." State v. Wright, 349 S.C. 310, 312, 563
S.E.2d 311, 312 (2002). "Gender-based classifications are not inherently suspect so
as to be subject to strict scrutiny and will be upheld if they bear a fair and substantial
relationship to legitimate state ends." In re Joseph T., 312 S.C. 15, 16, 430 S.E.2d
523, 524 (1993). "For a gender-based classification to pass constitutional muster, it
must serve an important governmental objective and be substantially related to the
achievement of that objective." Wright, 349 S.C. at 313, 563 S.E.2d at 312
(citing Craig v. Boren, 429 U.S. 190 (1976)). "A law will be upheld where the
gender classification realistically reflects the fact that the sexes are not similarly
situated in certain circumstances." Id. "The relevant inquiry . . . is not whether the
statute is drawn as precisely as it might have been, but whether the line chosen by
the [General Assembly] is within constitutional limitations." Michael M. v. Super.
Ct. of Sonoma Cnty., 450 U.S. 464, 473 (1981) (cited by Wright, 349 S.C. at 313,
563 S.E.2d at 312). As we have recognized, equal protection requires, "all persons
to be treated alike under like circumstances and conditions, both in privileges
conferred and liabilities imposed." GTE Sprint Commc'ns, 288 S.C. at 181, 341
S.E.2d at 129–30 (quoting Marley v. Kirby, 271 S.C. 122, 123–24, 245 S.E.2d 604,
605 (1978)).
Petitioners have identified three ways by which the Act classifies pregnant
women. Two characteristics of the Act violates equal protection. 37 The Act violates
equal protection guaranteed by our constitution, first, when it regulates pregnant
women seeking medical care as opposed to women who decide to carry their
pregnancies to term. Second, it prohibits all abortions sought except those in limited
situations. Particularly, the Act's rape and incest exceptions require a physician to
report the alleged rape or incest to the county sheriff. That report must include the
name and contact information of the victim. S.C. Code Ann. § 44-41-680(C) (Supp.
2022). The provision requires notification of the requirement to the victim,
inherently making it a bar to medical treatment. Further, the Act limitedly allows
the procedure when the life and health of the mother is at stake. Id. at § 44-41-690.
Again, I return to bodily autonomy in considering these classifications.
Women's futures are profoundly affected by pregnancy, especially when unplanned.
While men have the freedom to walk away from reproductive consequences, women
must bear the burden of reproduction. Notwithstanding the fact that the Act burdens
women and not men, I do not find a gender-based violation. However, a real interest
in bodily autonomy and health care are more important than the state's ostensible
interest in potential embryonic life in the early stages of pregnancy. Therefore, the
Act abridges a fundamental right: the right to bodily autonomy implicit in privacy.
Supra Part II(C); cf. Denene, 359 S.C. at 91, 596 S.E.2d at 920 ("If the classification
does not implicate a suspect class or abridge a fundamental right, the rational basis
test is used."). Consequently, I again will employ a strict-scrutiny review.
Although the United States Supreme Court has not identified an
impermissible classification which violates the federal Equal Protection Clause,
there have been compelling arguments made to the contrary: "[L]egal challenges to
undue restrictions on abortion procedures do not seek to vindicate some generalized
37
Other jurisdictions have found a legitimate, state equal-protection claim based on
similar classifications of pregnant women. For example, the Supreme Court of
Arizona struck down a law denying Medicaid funding to abortions necessary to
preserve the mother's health, but not to her life. Simat Corp. v. Ariz. Health Care
Cost Containment Sys., 56 P.3d 28 (Ariz. 2002); see also Alaska Dep't of Health &
Soc. Servs. v. Planned Parenthood of Alaska, Inc., 28 P.3d 904 (Alaska 2001)
(concluding the state had not shown a compelling justification to deny Medicaid
assistance for medically necessary abortions). There, the court recognized that the
law under consideration treated different classes of pregnant women differently. Id.
at 32. The Arizona court applied strict scrutiny in its equal protection analysis. Id.notion of privacy; rather, they center on a woman's autonomy to determine her life's
course, and thus to enjoy equal citizenship stature." Gonzales v. Carhart, 550 U.S.
124, 172 (2007) (Ginsburg, J., dissenting). In the instant case, I am not constrained
by federal precedent in interpreting our state equal protection clause. See, e.g.,
Easler, 327 S.C. at 131 n.13, 489 S.E.2d at 625 n.13 ("State courts may afford more
expansive rights under state constitutional provisions than the rights which are
conferred by the Federal Constitution.").
As discussed in Part II(C) of this opinion, the Act does not pass strict scrutiny
for several reasons. Particularly, here, the state's interest interferes with bodily
autonomy and medical decisions. The Act does not violate equal protection because
it regulates women based on biological differences from men; rather, it denies
women the fundamental freedom of self-determination and health-care decisions.
Put differently, the state's interest in embryonic life at six weeks is not compelling
when compared to this freedom so inherent in our constitutional existence. In fact,
the General Assembly has indicated in its findings that the Act "has legitimate
interests from the outset of a pregnancy in protecting the health of [1] the pregnant
woman and [2] the life of the unborn child who may be born[.]" South Carolina
Fetal Heartbeat and Protection from Abortion Act, Act No. 1, 2021 S.C. Acts 2, 3
§ 2(7) (emphasis added). The General Assembly denies equal protection when it
identifies an interest in a classification of people and unreasonably infringes upon it.
Moreover, the Act's reported rape exception does not pass strict scrutiny
because it does not advance the Act's stated health-care goals. The Act illegitimately
places a burden on women seeking medical care as a result of a rape or incest. The
state may have an interest in furthering criminal prosecution; however, making a
condition of abortion mandatory reporting is not narrowly tailored to that end.
Further, the Act only subjects women seeking abortion to its restrictions. Women
who are raped and choose to continue their pregnancies do not have their autonomy
and decisions regulated by the Act. Because the Act only restricts one choice—and
inherently favors another—it is not narrowly tailored to the state's interests.
Notwithstanding the above-noted defects, there is the glaring defect of
disparate treatment of pregnant women seeking an abortion. The six-week or
detectable "cardiac activity" limitation does not apply to women where pregnancy
results from rape or incest but it applies to women who seek an abortion for other
reasons. Abortion in both situations is still an abortion. It begs the question, why
does the state abandon its professed primary compelling interest, the protection of
fetal life, in rape or incest cases? It cannot be to protect the emotional or mental
health of the mother because the abortion statutory scheme already prohibits
abortion on that basis. The only logical explanation is arbitrary sympathy.
Pregnancy is the status of both women regardless of the source of the sperm. The
rape and incest exceptions evince the state's abandonment of its professed
compelling interest to protect fetal life. Thereby, making the Act an unconstitutional
violation of equal protection guaranteed by our state constitution.
In balancing these interests, I do not impose a policy determination. Instead,
I analyze whether the General Assembly's chosen policy, as stated in the Act,
violates fundamental, constitutional rights guaranteed to all South Carolinians. For
the foregoing reasons, the Act violates the equal protection guaranteed to all South
Carolinians in article I, section 3 of our state constitution.
E. Due Process
Petitioners next assert the Act violates their right to due process under the
South Carolina Constitution. See S.C. Const. art. I, § 3 (ensuring no person
"shall . . . be deprived of life, liberty, or property without due process of law").
Petitioners raise issues regarding the deprivation of both procedural and substantive
due process.
(1) Procedural Due Process
Petitioners assert the Act violates procedural due process because it is
unconstitutionally vague. They contend the Act's parameters are unclear because
they conflict with multiple layers of existing South Carolina law, leaving no
discernible standard for implementation. In addition, the resulting uncertainty
regarding the controlling standards makes the Act subject to arbitrary and
discriminatory enforcement.
Procedural due process is violated when a provision of law is deemed
unconstitutionally vague. See State v. Houey, 375 S.C. 106, 113, 651 S.E.2d 314,
318 (2007) ("The void-for-vagueness doctrine rests on the constitutional principle
that procedural due process requires [1] fair notice and [2] proper standards for
adjudication."). Under this doctrine, "[a] statute can be impermissibly vague for
either of two independent reasons." Id. at 119, 651 S.E.2d at 321 (Waller, J.,
concurring in result). "First, it may fail to provide people of ordinary intelligence a
reasonable opportunity to understand what conduct it prohibits." Id. "Or, second, it
may authorize or encourage arbitrary and discriminatory enforcement." Id.A statute is not immune from constitutional challenge simply because some
conduct could arguably fall within its reach. In 2015, the United States Supreme
Court clarified this point, explaining that, despite some statements to the contrary,
its holdings "squarely contradict" any notion that a statute is not unconstitutionally
vague simply because some conduct can fall within its ambit:
[A]lthough statements in some of our opinions could be
read to suggest otherwise, our holdings squarely contradict
the theory that a vague provision is constitutional merely
because there is some conduct that clearly falls within the
provision's grasp. For instance, we have deemed a law
prohibiting grocers from charging an "unjust or
unreasonable rate" void for vagueness—even though
charging someone a thousand dollars for a pound of sugar
would surely be unjust and unreasonable. L. Cohen
Grocery Co., 255 U.S., at 89, 41 S.Ct. 298 [United States
v. L. Cohen Grocery Co., 255 U.S. 81, 89 (1921)]. We
have similarly deemed void for vagueness a law
prohibiting people on sidewalks from "conduct[ing]
themselves in a manner annoying to persons passing by"—
even though spitting in someone's face would surely be
annoying. Coates v. Cincinnati, 402 U.S. 611, 91 S.Ct.
1686, 29 L.Ed.2d 214 (1971).
Johnson v. United States, 576 U.S. 591, 602–03 (2015) (first and second alterations
added).
In addition, this Court and the United States Supreme Court have recognized
that a more stringent test for vagueness applies to criminal statutes because the
consequences of imprecision in such cases can be more severe. See, e.g., Houey,
375 S.C. at 113, 651 S.E.2d at 318 ("As to civil standards, there appears [to be] a
less stringent test than that applied in criminal contexts."); see also Village of
Hoffman Ests. v. Flipside, Hoffman Ests., Inc., 455 U.S. 489, 498-99 (1982) ("The
degree of vagueness that the Constitution tolerates—as well as the relative
importance of fair notice and fair enforcement—depends in part on the nature of the
enactment. . . . The Court has also expressed greater tolerance of enactments with
civil rather than criminal penalties because the consequences of imprecision are
qualitatively less severe."), cited with approval in Houey, 375 S.C. at 113, 651
S.E.2d at 318.
As has been noted, the Act makes the violation of its terms a felony carrying
a criminal penalty of up to two years in prison and fines of $10,000. S.C. Code Ann.
§§ 44-41-650(B), -680(D) (Supp. 2022). Because the Act authorizes the extreme
sanction of the deprivation of an individual's liberty, the Court must exercise the
utmost care in ensuring due process is properly afforded to avoid the improper
criminalization of an individual's conduct. See generally Carey v. Piphus, 435 U.S.
247, 262 (1978) (stating one "purpose of procedural due process is to convey to the
individual a feeling that the government has dealt with him fairly, as well as to
minimize the risk of mistaken deprivations of protected interests").
Petitioners note that when the Act became effective in February 2021, it
banned most abortions upon the detection of embryonic "cardiac activity," generally
said to occur at approximately six weeks, with narrow exceptions. However, the Act
expressly confirmed the continuation of existing South Carolina law, including prior
statutes that codified Roe v. Wade, 410 U.S. 113 (1973) in South Carolina in 1974.38
They argue this complex layering of competing and conflicting provisions renders
the Act unconstitutionally vague, as those subject to its terms, such as physicians
and others, will not know precisely what conduct is prohibited. Respondents, in
contrast, contend the Act is not vague because if an abortion is illegal under any
provision of the Act or prior—yet coexisting—law, then the conduct is illegal, and
if there is any doubt as to which law should control, then an individual should
presume that the most recent legislative act controls the legality of the individual's
conduct.
A review of South Carolina law shows there are several layers of statutory
provisions that have been enacted regarding abortion, despite their apparent conflict
with existing provisions. In 1974, South Carolina enacted section 44-41-20, which
established a trimester framework that effectively mirrored the trimester framework
of Roe. See S.C. Code Ann. § 44-41-20(a)–(c) (2018) (establishing trimester
guidelines). Under the 1974 law, (a) during the first trimester, abortions may be
performed with the pregnant woman's consent by her attending physician according
to the physician's professional judgment; (b) during the second trimester, abortions
may be performed with the pregnant woman's consent by her attending physician in
a hospital or clinic certified by the South Carolina Department of Health and
Environmental Control ("DHEC"); and (c) in the third trimester, abortions may be
performed in a certified hospital, with appropriate consent, and when, in the
attending physician's judgment, the abortion is necessary to preserve the life or
health, including the mental and physical health, of the woman. Id.38
This is the same basis on which the Court enjoined the enforcement of the Act
prior to oral argument.
Changes by the General Assembly in 2016 altered this framework to prohibit
abortion where "the probable post-fertilization age" of the fetus "is twenty or more
weeks, except in the case of fetal anomaly, or in reasonable medical judgment, she
has a condition which so complicates her medical condition as to necessitate the
abortion of her pregnancy to avert her death or to avert serious risk of substantial
and irreversible physical impairment of a major bodily function, not including
psychological or emotional conditions." Id. § 44-41-450(A) (emphasis added). The
2016 Act expressly provides a physician cannot find a greater risk exists to the
pregnant woman based on a diagnosis that she could cause substantial harm or even
death to herself. See id. ("No such greater risk must be considered to exist if it is
based on a claim or diagnosis that the woman will engage in conduct which she
intends to result in her death or in substantial and irreversible physical impairment
of a major bodily function.").
Petitioners point out that, although the 2016 Act conflicted with the prior
codification of abortion law because, for example, it expressly prohibited a physician
from considering a woman's psychological or emotional condition as part of the
physician's judgment regarding the woman's health condition, the General Assembly
nevertheless expressly stated it was not repealing any provision of prior law,
including South Carolina's codification of Roe in section 44-41-20. See id. § 44-41-
480 ("This article must not be construed to repeal, by implication or otherwise,
Section 44-41-20 or any otherwise applicable provision of South Carolina law
regulating or restricting abortion." (emphasis added)).
The Act's subsequent imposition of what is effectively a six-week ban in 2021
contains a similar provision expressly stating that it "must not be construed to repeal,
by implication or otherwise, Section 44-41-20 or any otherwise applicable provision
of South Carolina law regulating or restricting abortion." Id. § 44-41-710 (Supp.
2022) (emphasis added). As a result, the addition of the Act added yet another layer
of conflicting provisions to the laws governing abortion in South Carolina.
Apparently recognizing the inevitable confusion that could arise, section 44-41-710
also contains a lengthy disclaimer of sorts, purporting to resolve these conflicts. For
example, it states that if an abortion complies with the Act but violates prior—yet
still effective—provisions to the contrary, then it "must be considered unlawful as
provided in such provision." Id. Simultaneously, however, section 44-41-710 states
that an abortion that complies with other existing statutes but violates the Act "must
be considered unlawful as provided in this article." Id.
I disagree with Respondents' suggestion that this provision somehow
remediates any resulting confusion arising from the simultaneous application of
several layers of facially conflicting laws. When this Court temporarily enjoined the
enforcement of the Act we said that the Act has conflicting provisions. How can it
be presumed that people untrained in law know what is and is not permitted? The
addition of the Act in 2021, which bans most abortions with narrow exceptions, is
not compatible with the existing law spanning nearly five decades after South
Carolina's legislature chose to codify the parameters of Roe into state law. The
efficacy of this existing body of state law protecting a woman's right to make her
own reproductive health decisions was not automatically impacted by the overturn
of the Roe decision under federal law by Dobbs v. Jackson Women's Health
Organization, 142 S. Ct. 2228 (2022).
This unusual layering of state law provisions has created inconsistencies that
make it difficult for medical professionals and others affected by the Act to know
how to follow the applicable law in treating their patients. When there are at least
three competing standards governing abortion in this state (i.e., 1974 law, the 2016
Act, and the Act from 2021), an impossible situation has been created for physicians,
medical providers, and others, who cannot ascertain, short of obtaining court orders,
what conduct is permitted and what conduct is not under such a mix of directives. I
reject Respondents' suggestion that physicians and other individuals who may be
affected by the Act can make an intelligent decision as to what conduct is prohibited
by attempting to unilaterally resolve conflicts in the law or to somehow settle any
doubt that has been created in the Act by resorting to reliance on a presumption.
This creates an unreasonable and untenable situation that does not afford procedural
due process.
The timing of care can be an essential factor in a physician's advice and course
of treatment. A medical provider cannot reasonably be expected to obtain a legal
opinion or pursue an appeal to translate the conflicting landscape of abortion law in
the course of advising a patient and providing treatment, particularly in cases of
medical emergency. For nearly five decades, medical providers operated under
reasonably stable laws governing abortion, and they could act in conformance with
an understanding of the laws governing their conduct. The Act creates uncertainty
in the law.
Based on the foregoing, I find the Act is unconstitutionally vague because it
does not establish clear parameters of proscribed conduct that will enable reasonable
compliance. I further find that, because medical providers would be forced to
operate in circumstances of extreme uncertainty, enforcement of the Act would
inevitably authorize or encourage arbitrary and discriminatory enforcement. For
these reasons, I find the Act does not afford procedural due process.
(2) Substantive Due Process
Petitioners further assert the Act is unconstitutional because it deprives
pregnant women of their substantive due process rights to life and liberty under any
level of scrutiny. Petitioners argue the Act usurps the ability of women to make their
own decisions regarding their reproductive health. Specifically, it expropriates a
woman's decision whether to remain pregnant and have a child, which they observe
is a decision with extensive and potentially life-long physical, mental, and financial
consequences, and places these decisions in the hands of the state. Petitioners
contend the Act also interferes with the ability of women to obtain timely medical
care and to make decisions in accordance with the expert advice of their medical
providers.
As stated above, South Carolina's due process clause provides no person
"shall . . . be deprived of life, liberty, or property without due process of law." S.C.
Const. art. I, § 3. "The purpose of the substantive due process clause is to prohibit
government from engaging in arbitrary or wrongful acts 'regardless of the fairness
of the procedures used to implement them.'" In re Treatment & Care of Luckabaugh,
351 S.C. 122, 140, 568 S.E.2d 338, 347 (2002) (citation omitted).
Legislation restricting or impairing a fundamental right or implicating a
suspect class is subject to "strict scrutiny" to determine its constitutionality. Id.; see
also id. at 140–41, 568 S.E.2d at 347 (stating under the strict scrutiny test, a law
"must meet a compelling state interest and be narrowly tailored to effectuate that
interest"). Legislation that does not infringe on fundamental rights or impact a
suspected class is subject to a rational basis test, i.e., it must be reasonably designed
to accomplish its purposes. Id. at 140, 568 S.E.2d at 347; see also R.L. Jordan Co.
v. Boardman Petroleum, Inc., 338 S.C. 475, 478, 527 S.E.2d 763, 765 (2000)
(explaining that, under the rational basis test, the Court considers "[w]hether it [the
legislation] bears a reasonable relationship to any legitimate interest of
government"). "Under either type of analysis, the one who attacks the law bears the
burden of showing it is unconstitutional." Luckabaugh, 351 S.C. at 140, 568 S.E.2d
at 347.
Petitioners maintain reproductive decisions and bodily integrity are,
inherently, personal and fundamental human rights, so a state's extreme restrictions
on abortion access at such an early stage of pregnancy and its corresponding
dominion over a woman's body and her reproductive health choices is a subject that
should be evaluated with strict scrutiny. Petitioners argue the Act does not survive
strict scrutiny review because it is not narrowly tailored to achieve a legitimate state
interest. At a minimum, however, Petitioners assert the Act, which effectively
imposes almost a total ban, is not a reasonable means of supporting any state interest
when the Act's enforcement actually endangers the lives of pregnant women, rather
than safeguarding their health. As a result, they maintain the Act does not satisfy
even the rational basis test.
Respondents, in contrast, argue abortion is not a fundamental right because
the South Carolina Constitution of 1895 makes no reference to abortion, this state
has previously imposed restrictions, there are differences of opinion as to whether
women should be entitled to manage their reproductive health decisions, and control
over those decisions have been left to the states after Dobbs v. Jackson Women's
Health Organization, 142 S. Ct. 2228 (2022). Citing Dobbs, id. at 2258,
Respondents contend abortion is not a deeply rooted right in our nation's history and
maintain the assertion of a woman's bodily integrity, "taken to its logical
conclusion," would "open[] the door to encompass things such as 'illicit drug use,
prostitution, and the like.'"39 Consequently, they argue, the Act is subject to rational
basis review, and it meets this test.
As an initial matter, I reject Respondents' assertion that the right of a woman
to choose whether to become and stay pregnant and have a child is a matter that
cannot be deemed a fundamental right because this state has a history of placing
restrictions on abortion. Respondents contend that, because abortion was "generally
prohibited" when South Carolina's due process clause was enacted in the
Constitution of 1895, the framers and the public at that time "could not have
contemplated" that due process implicitly included a right to abortion, and they note
the word "abortion" does not appear in our state constitution.
Respondents' use of the phrase "generally prohibited" is an acknowledgement
that abortions were not prohibited. It is important to recognize that, for much of our
state's history, abortion was not prohibited until a woman was at the stage of
quickening, which has been variously stated to be between approximately four and
five months of pregnancy; it is based on a woman's self-reported detection of fetal
movement.
39
I disagree with the implication that a woman's right to reproductive freedom or
bodily integrity is somehow equivalent to, or a gateway for, recognizing the right of
an individual to engage in criminal activities such as prostitution or drug use. Such
assertions are patently spurious.
In addition, the fact that the word "abortion" does not appear in our state
constitution is not determinative. As some commentators have noted, there are many
procedures affecting bodily integrity and medical care that are also not specifically
named in our constitution, such as organ transplants, blood transfusions, mental
health treatment, and the like. While these practices have been banned by some
religions, no one would seriously argue that an individual's right to make health-care
decisions regarding these practices is subject to a government ban because they are
not specifically enumerated in our state constitution—or because some religions find
them objectionable.
To the extent Respondents are asking this Court to ignore the facts and to
focus on the historical understanding of fundamental rights and due process at the
time of the 1895 Constitution, they are asking this Court to rely on a time in our
state's history when women were not full participants in the public and legal affairs
of this state, including formulation of the meaning of the term "due process."
Notably, women did not participate in the state's 1895 constitutional convention
creating the state's laws and policies. Rather, only males were eligible to vote for—
and to become—a convention delegate. See Act No. 542, 1894 S.C. Acts 802, 804
§ 4 ("Every male citizen of the United States and of this State of the age of twenty-
one years . . . duly qualified to vote under the existing laws of the State . . . shall be
entitled to vote for delegates to said Convention"); id. § 5 ("Every person entitled to
vote for delegates to said Convention shall be eligible to a seat therein."); Journal of
the Constitutional Convention of the State of South Carolina 2–8 (Charles A. Calvo,
Jr. State Printer, Columbia, SC 1895) (publishing a roll call of around 160
convention delegates, which included no women).
In addition, the 1895 Constitution included a provision expressly prohibiting
women from voting in public elections; it also focused on disenfranchising African
Americans. See Cole Blease Graham Jr., The Evolving South Carolina Constitution,
24 J. Pol. Sci. 11, 21 (1996), https://digitalcommons.coastal.edu/jops/vol24/iss1/2
(stating the 1895 Constitution included a new suffrage clause that specifically
limited the right to vote to all males who were paying taxes on property assessed at
$300 or more and who passed literacy tests and observing "the 1895 [C]onstitution
was adopted by a convention with the specific aim of excluding African Americans
from politics").
Further, although Respondents reference the importance of knowing what the
public thought was implicit in the meaning of due process in 1895, historians have
remarked upon the fact that "[t]he 1895 Constitution was not submitted to a popular
referendum." Id. at 22. In light of the foregoing, it is clear that the 1895 Constitution
itself failed to afford due process in some of its provisions, so this nineteenth century
document is not particularly useful in instructing this Court on the appropriate
meaning of due process in the twenty-first century.
In view of its inherent weaknesses, many laws affecting women likewise did
not afford due process following the adoption of the 1895 Constitution. For
example, women were legally prohibited by the General Assembly from serving on
juries in South Carolina until 1967. This begs the question, then, is it really correct
to say that this state's prohibition on the full participation of women in the process
of trial by jury means that the right of women to be on a jury is not a fundamental
right that is deeply rooted in our nation's history? In other words, can the very act
of depriving due process to an individual serve as a mechanism for the government
to refuse to recognize a fundamental right? The answer must be no. Extending this
analogy, if a state has a history of depriving women of the right to make their own
intimate and private decisions about their reproductive health at various times, this
should not prevent the inherent right of women to make reproductive health
decisions and to control their own bodies from being "deeply rooted." This state was
also one of the last to retain laws prohibiting women (and men) from entering into
an interracial marriage until a unanimous United States Supreme Court struck down
as unconstitutional these anti-miscegenation statutes in Loving v. Virginia, 388 U.S.
1 (1967) on the basis they violated the Due Process and Equal Protection Clauses of
the Fourteenth Amendment. The historical status of anti-miscegenation laws in this
state and others did not prevent them from being deemed an infringement on an
individual's fundamental right to marry that violated due process.
For nearly half a century in this nation's most recent history, it has been
recognized that women have a federal constitutional right to obtain abortion care.
This position was upheld—repeatedly—by numerous justices on the United States
Supreme Court, until it was overturned by the Dobbs Court in 2022. As one Georgia
court has recently commented: "The Dobbs majority is not somehow 'more correct'
than the majority that birthed Roe or Casey. Despite its frothy language disparaging
the views espoused by previous Justices [over nearly five decades], the magic of
Dobbs is not its special insight into historical 'facts' or its monopoly on constitutional
hermeneutics. It is simply numbers." SisterSong Women of Color Reprod. Justice
Collective v. State, Civ. Action No. 2022CV367796, Order at 4 n.5 (Ga. Super. Ct.
Fulton Cnty. dated Nov. 15, 2022), injunction granted, Order in Case No. S23M0358
(Ga. Sup. Ct. dated Nov. 23, 2022) (granting the State of Georgia's Emergency
Petition for Supersedeas for a stay of the order of the Superior Court of Fulton
County pending appeal).
I reject the notion that a woman's right to make her own reproductive health
decisions and control her own body is a novel right based only on Roe and, therefore,
cannot be a deeply rooted right. Some authorities have observed that the right of
reproductive choice is contained in the panoply of unenumerated rights that is
protected by due process provisions that trace their development back to the Magna
Carta. See Planned Parenthood of the Heartland, Inc. v. Reynolds ex rel. State, 975
N.W.2d 710, 768 (Iowa 2022) (Appel, J., dissenting) ("Despite what some might
suggest, Roe did not suddenly emerge from the obscure primordial depths. Instead,
it was a result of a steady and logical progression of caselaw development, going as
far back as the Magna Carta."); id. at 768–69 ("The substantive due process doctrine
that provided the underpinning for Roe has a long heritage. Justices and scholars
have traced substantive due process back to the Magna Carta. It is believed that the
Due Process Clause of the Fifth Amendment to the United States Constitution at the
time of the drafting encompassed judicial recognition that unenumerated substantive
rights served to limit congressional power, and the concept of due process posed
substantive limitation on governments." (footnotes omitted)).
For example, early Supreme Court cases recognized that there were
unenumerated rights that were not specifically described but that could be protected
under the liberty provision of the Due Process Clause of the United States
Constitution. In Meyer v. Nebraska, 262 U.S. 390, 399 (1923), the United States
Supreme Court acknowledged that it had never attempted to define the term "liberty"
with exactness. However, the Supreme Court invalidated a state law prohibiting the
teaching of foreign languages to children, holding there are rights that are not
specifically mentioned in the Constitution, such as "the right of the individual to
contract, to engage in any of the common occupations of life, to acquire useful
knowledge, to marry, establish a home and bring up children" that are "essential to
the orderly pursuit of happiness by free men" and, therefore, are entitled to
constitutional protection within the scope of the "liberty" provision. Id. The Court
stated liberty cannot be interfered with by a state under the guise of protecting the
public interest, and a legislature's determination "of what constitutes proper exercise
of police power is not final or conclusive but is subject to supervision by the courts."
Id. at 399–400.
In Pierce v. Society of Sisters, 268 U.S. 510, 534–35 (1925), the United States
Supreme Court found that, although the United States Constitution contains no
specific textual mention of a parent's right to bring up and educate children, the right
was protected under the general term "liberty" used in the Fourteenth Amendment.
The reasoning in early cases such as the foregoing are the precursors of
decisions finding protection for the intimate spheres of life that predate Roe and that
support the existence of reproductive autonomy.
Decision after decision involving intimate spheres of life
such as the decisions related to family, education of
children, whether to beget children, and whether to use
contraception were found to be entitled to substantive due
process protection. The great judicial conservative of the
Warren years, Justice Harlan, embraced substantive due
process in his famous dissent in [Roe v. Wade]. Prior
to Roe, there was a rich body of caselaw for the court to
draw upon in considering application of substantive due
process and privacy interests in the context of reproductive
autonomy.
Planned Parenthood of the Heartland, Inc., 975 N.W.2d at 773 (Appel, J.,
dissenting) (emphasis added).
In light of the foregoing, I find that a woman's right to make informed
decisions about her reproductive health and whether to have a child is a fundamental
right, the restriction of which by the government is subject to strict scrutiny. I find
persuasive Petitioners' assertion that the Act's early ban violates the fundamental
right of each woman "to decide what is to be done medically with one's brain and
body . . . and the freedom from unwarranted physical interference with one's
person," citing Singleton v. State, 313 S.C. 75, 88, 437 S.E.2d 53, 60 (1993) (quoting
State v. Perry, 610 So. 2d 746, 755 (La. 1992)).
III. CONCLUSION
I conclude, first, that the Act, as passed, is void ab initio. Second, the Act
violates the right against unreasonable invasion of privacy. Third, the Act violates
equal protection. Fourth and finally, the Act denies both the procedural and
substantive guarantees of due process. Therefore, the Act violates the South
Carolina Constitution beyond a reasonable doubt.
Like the United States Supreme Court, the members of this Court recognize
that many sides of this profound debate passionately argue their cause. Most
commonly, people divide themselves into "pro-life" and "pro-choice" camps. The
decision today is not so limited. Our decision today is neither "pro-choice" nor "pro-
life"; it merely recognizes that our state constitution grants every South Carolinian
a right to privacy, equal protection, and due process of laws. This fundamental,
constitutional mandate transcends politics and opinion.
JUSTICE FEW: Today we confront purely legal questions arising from Planned
Parenthood's challenge to the 2021 "South Carolina Fetal Heartbeat and Protection
from Abortion Act." I will spend a great deal of time in this opinion attempting to
frame these legal questions correctly. To begin that effort, I point out that these legal
questions are related to—but not the same as—political questions before the 124th
General Assembly in 2021. The political questions may generally be stated as, "To
what extent should the General Assembly restrict the opportunity of South Carolina
women to have an abortion?" or, more specifically, "Should the General Assembly
alter South Carolina's 2016 'Pain-Capable Unborn Child Protection Act'40—
commonly referred to as the 'Pain-Capable Act' or 'twenty-week bill'—and impose
the 'Fetal Heartbeat Act'41—also commonly referred to as the 'six-week bill?'"42 The
State correctly stresses there are important separation of powers concerns in framing
the legal questions before us, and this Court must not allow itself to be drawn into a
political inquiry over whether we agree with the policy judgments the General
Assembly made in addressing the political questions described above. The State's
admonition is justified because most participants in this debate at the intersection of
law and abortion have succumbed to an insidious tendency—many doing so with
aggressive partisan enthusiasm—to frame their legal views of abortion restrictions
with what are actually their political views. The firm resolve of each Justice of this
Court, however, is to avoid that tendency, narrow our focus to the purely legal
questions before the Court, and answer only those legal questions. See Smith v.
Tiffany, 419 S.C. 548, 565, 799 S.E.2d 479, 488 (2017) (explaining "the policy
decision belongs to the legislature"); Abbeville Cnty. Sch. Dist. v. State (Abbeville
40
Act No. 183, 2016 S.C. Acts 1406 (codified as amended at S.C. Code Ann. §§ 44-
41-410 to -480 (2018 & Supp. 2022)).
41
Act No. 1, 2021 S.C. Acts 2 (codified at S.C. Code Ann. §§ 44-41-610 to -740
(Supp. 2022)).
42
The Fetal Heartbeat Act is referred to as the "six-week bill" because cardiac
activity "can be detected by transvaginal ultrasound by 6-7 weeks post [last
menstrual period] or 4-5 weeks post-conception." (J.A. at 305 & n.6). The State
contends this cardiac activity—the "fetal heartbeat"—can be detected at
approximately six weeks. (Resp't Att'y General Br. 6). If the time period on which
the common name "six-week bill" is based were measured from conception—as is
the name twenty-week bill—the common name would be the "four-week bill." This
becomes important to my analysis in subsections V.B. and V.D. of this opinion.
II), 410 S.C. 619, 664, 767 S.E.2d 157, 181 (2014) (Kittredge, J., dissenting) ("While
judges have a duty to strike down legislation in violation of the constitution, . . .
judges must demonstrate restraint in the enforcement of our duty, particularly when
it comes to creating law. Courts should not interpret the constitution in a manner
that creates rights and duties out of thin air, such that one's policy preference is
accorded constitutional status.").43 As our five separate opinions indicate, we do not
agree on the answers to the legal questions we confront, or even as to the principles
of law we believe lead to those answers. But I respect the positions my colleagues
have taken, and I am confident each of us has done our best to honor the separation
of powers by setting aside our policy preferences and focusing only on the law.
I divide this opinion into seven numbered sections. In section I, I provide short
answers to each of the legal questions necessarily before us. In section II, I analyze
the scope of the "unreasonable invasions of privacy" provision in article I, section
10 of our constitution. In section III, I explain the privacy interests implicated when
the State regulates abortion. In section IV, I frame the legal question we face as to
article I, section 10. In section V, I turn to the Fetal Heartbeat Act and analyze its
constitutionality. The two central points of my analysis—set forth in subsections
V.D. and V.E., respectively—are (1) the constitutionality of the Fetal Heartbeat Act
turns on one particular factual question, and (2) the General Assembly's failure even
to consider this necessary factual question was arbitrary and renders the Fetal
Heartbeat Act unconstitutional. In section VI, I clarify my position on several other
issues the parties raised. Section VII is a conclusion section.
I.
Petitioners' arguments under the Equal Protection Clause and Due Process Clause
are without merit. Also, there is no legal significance in the fact the Fetal Heartbeat
Act was enacted before the Supreme Court decided Dobbs v. Jackson Women's
Health Organization, 597 U.S. ___, 142 S. Ct. 2228, 213 L. Ed. 2d 545 (2022),
43
This Abbeville II decision—which I will distinguish from this case below—is
relied on forcefully by the Governor, (Resp't Br. 4, 21), and the House Speaker and
Senate President, (Obj. to the Court's Inquiry about Potential Receipt of Irrelevant
Subjective Information, at 2). As the House Speaker and Senate President point out,
this statement from Justice Kittredge's dissent in Abbeville II became the majority
position of this Court in a subsequent order in that case. Abbeville II, S.C. Sup. Ct.
Order dated Nov. 17, 2017, at 1-2.
overruling Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), and
Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 112 S.
Ct. 2791, 120 L. Ed. 2d 674 (1992). As I will explain, the Fetal Heartbeat Act
violates the article I, section 10 prohibition against "unreasonable invasions of
privacy." S.C. Const. art. I, § 10. While I do not concur in Justice Hearn's or Chief
Justice Beatty's analysis of the article I, section 10 question, I concur with them in
result. Thus, this Court holds the Fetal Heartbeat Act is unconstitutional.
II.
Article I, section 10 of the South Carolina Constitution—entitled, "Search and
seizures; invasions of privacy"—provides, "The right of the people to be secure in
their persons . . . against . . . unreasonable invasions of privacy shall not be violated
. . . ." The State argues our "unreasonable invasions of privacy" provision should be
limited to search and seizure cases and to electronic surveillance, and thus is
inapplicable in this case. I disagree.
First, the word "privacy"—though broad—is clear as to its scope: it includes all
forms of privacy. When a constitutional provision is clear, we must discern the
intent behind the provision only from its text, and should not resort to other evidence
of intent. See J.K. Constr., Inc. v. W. Carolina Reg'l Sewer Auth., 336 S.C. 162, 170,
519 S.E.2d 561, 565 (1999) ("In construing a . . . constitutional provision, the Court
must give clear and unambiguous terms their plain and ordinary meaning without
resorting to subtle or forced construction to limit or expand the provision's
operation."). Thus, when used without limitation in article I, section 10, the term
"privacy" means the full panoply of privacy rights Americans have come to enjoy
over the history of our Nation. The only way a broad but clear term like "privacy"
in this constitutional provision may be reasonably read as limited to only some of its
forms is when the limitations appear in the text of the provision.44
44
See Ansel v. Means, 171 S.C. 432, 438, 172 S.E. 434, 436 (1934) ("It would not
be practicable, if possible, in a written constitution to specify in detail all of its
objects and purposes, or the means by which they are to be carried into effect. Such
prolixity in a code designed as a frame of government has never been considered
necessary or desirable; therefore constitutional powers are often granted or
restrained in general terms . . . ." (quoting 12 Corpus Juris 719, § 73 (1917) (footnote
omitted))); see also McKenzie v. McLeod, 251 S.C. 226, 231, 161 S.E.2d 659, 661
(1968) ("Hence, when construing a constitutional amendment, the Court applies
rules similar to those relating to the construction of statutes, in its effort to determine
the intent of its framers and of the people who adopted it." (quoting Miller v. Farr,
The absence of any limitations in the text of article I, section 10 answers the State's
argument and there should be no need for further discussion of the point. Because
there is so much further discussion, however, I will continue to address the State's
argument.
Second, the State's position is inconsistent with this Court's prior applications of the
article I, section 10 "unreasonable invasions of privacy" provision. In Singleton v.
State, 313 S.C. 75, 437 S.E.2d 53 (1993), for example, we addressed "whether the
State can administer, by force, medication to treat Singleton's incompetence in
preparation for execution." 313 S.C. at 87, 437 S.E.2d at 60. Despite recognizing
that other courts addressed this issue as one of substantive due process, 313 S.C. at
87-88, 437 S.E.2d at 60, this Court addressed it as a "state constitutional question,"
313 S.C. at 88, 437 S.E.2d at 60. We concluded, "We hold that the South Carolina
Constitutional right of privacy would be violated if the State were to sanction forced
medication solely to facilitate execution." 313 S.C. at 89, 437 S.E.2d at 61; see also
State v. Blackwell, 420 S.C. 127, 151, 801 S.E.2d 713, 725 (2017) (discussing "a
witness's state constitutional right to privacy" relating to "confidential mental health
records" (footnote omitted)); State v. Forrester, 343 S.C. 637, 644, 541 S.E.2d 837,
841 (2001) (stating the article I, section 10 "provision creates a distinct privacy right
that applies both within and outside the search and seizure context"). 45 In the twenty-
243 S.E. 342, 346-47, 133 S.E.2d 838, 841 (1963))); Smith, 419 S.C. at 555, 799
S.E.2d at 483 ("If a statute is clear and explicit in its language, then there is no need
to resort to statutory interpretation or legislative intent to determine its meaning."
(quoting Timmons v. S.C. Tricentennial Comm'n, 254 S.C. 378, 401, 175 S.E.2d 805,
817 (1970))); Smith, 419 S.C. at 556, 799 S.E.2d at 483 ("Absent an ambiguity, there
is nothing for a court to construe, that is, a court should not look beyond the statutory
text to discern its meaning."); Hodges v. Rainey, 341 S.C. 79, 85, 533 S.E.2d 578,
581 (2000) ("Where the statute's language is plain and unambiguous, and conveys a
clear and definite meaning, the rules of statutory interpretation are not needed and
the court has no right to impose another meaning." (citation omitted)).
45
The discussions of article I, section 10 in Blackwell and Forrester are dicta. The
point, however, is that when this Court said what it said in those cases—2001 and
2017—no Justice on this Court thought the "unreasonable invasions of privacy"
provision was limited as the State now argues. See infra note 7. In other cases—
not dicta—this Court has balanced article I, section 10 privacy interests in contexts
beyond the limitation suggested by the State and concluded the State's interests
nine years following Singleton, not one suggestion has been made—by the State or
otherwise—that we erred in Singleton by applying the "unreasonable invasions of
privacy" provision beyond search and seizure and electronic surveillance.46
Third, the State's limitations to the scope of the "unreasonable invasions of privacy"
provision were never presented to the voters who approved the provision in the 1970
general election. This is important, because, as we have previously recognized,
"When this Court is called to interpret our Constitution, it is guided by the principle
that both the citizenry and the General Assembly have worked to create the
governing law." City of Rock Hill v. Harris, 391 S.C. 149, 153, 705 S.E.2d 53, 54
outweighed the privacy interest and thus, the "invasion of privacy" at issue was not
unreasonable. See, e.g., Hooper v. Rockwell, 334 S.C. 281, 293-95, 513 S.E.2d 358,
364-66 (1999) (discussing a parent's article I, section 10 privacy rights and other
liberty interests in the context of child rearing and holding those interests are "not
absolute" and are outweighed by the State's interest in protecting the child from
abuse).
46
The State has never argued the article I, section 10 "unreasonable invasions of
privacy" provision is limited to search and seizure or electronic surveillance. My
law clerks and I reviewed every brief the State filed in every article I, section 10
privacy case this Court has heard, and the argument has never been made. In
Forrester—a case that had nothing to do with electronic surveillance—the State
passed up the perfect opportunity. The petitioner in that case argued the article I,
section 10 "unreasonable invasions of privacy" provision required a law enforcement
officer to inform a suspect she may refuse his request to inspect the inside of her
handbag. 343 S.C. at 641, 541 S.E.2d at 839. Even after citing in its brief a decision
from the Supreme Court of Hawaii finding "added language" to the Hawaii
Constitution "about 'invasions of privacy' concerned [only] electronic surveillance
techniques," the State argued only that the "added language" on privacy in our
constitution did not require the officer to make a specific statement to the suspect as
to her rights; the State did not argue the "unreasonable invasions of privacy"
provision applies only to electronic surveillance. See Br. of Resp't at 11-12,
Forrester, 343 S.C. 637, 541 S.E.2d 837 (No. 1999-010787) (citing State v. Roy,
510 P.2d 1066, 1068-69 (Haw. 1973)) (arguing only "the provision within the
Declaration of Rights of the South Carolina Constitution protecting the people from
unreasonable invasions of privacy did not require Officer Rhodes to tell Petitioner
that she could refuse consent to search her purse").
(2011); see also McKenzie, 251 S.C. at 231, 161 S.E.2d at 661 (stating that "when
construing a constitutional amendment, the Court . . . determine[s] the intent of its
framers and of the people who adopted it" (quoting Miller, 243 S.E. at 346-47, 133
S.E.2d at 841)). The legislation placing the proposed constitutional amendments on
the ballot required that the entire text of article I—including the "unreasonable
invasions of privacy" provision—be placed on the ballot and thus presented to the
voters. J. Res. No. 1268, 1970 S.C. Acts 2684, 2684-88. There was no mention on
the ballot of any limitations on that language. Thus, the "citizenry" who voted to
approve the "unreasonable invasions of privacy" provision were given the broad
language of privacy with no indication it was limited to only some of its forms. 47
Fourth, we have previously stated the framers of the article I, section 10
"unreasonable invasions of privacy" provision "were depending upon the state
judiciary to construct a precise meaning of this phrase." State v. Counts, 413 S.C.
153, 167, 776 S.E.2d 59, 67 (2015) (quoting Jaclyn L. McAndrew, Note, Who Has
More Privacy?: State v. Brown and Its Effect on South Carolina Criminal
Defendants, 62 S.C. L. Rev. 671, 694 (2011)). Under this well-accepted premise, it
is the task of this Court to determine what the phrase "unreasonable invasions of
privacy" means in the various forms in which privacy exists; it is not the privilege
of this Court to determine which forms of privacy we prefer and which we do not
prefer. Our statement from Counts does not become invalid simply because we now
address a politically controversial issue.
47
The House Speaker and Senate President make much in their brief of summary
language also included on the ballot that did not include the word "privacy." (Resp't
Br. 14-15) (quoting 1970 S.C. Acts at 2687-88). Under this theory, the State
suggests we are to find limitations on the broad term "privacy" by virtue of the fact
that voters were not provided any such limitations, but rather were given the entire
text of the proposed "unreasonable invasions of privacy" provision along with a
"summary" that does not contain the entire text of article I, section 10. Under the
same theory, the article I, section 2 right of freedom of the press is limited to
situations involving religion because the summary language does not contain the
word "press." 1970 S.C. Acts at 2688. In fact, of the nine sections of article I that
contain multiple rights, seven set forth rights not mentioned in the summary
language included on the ballot. The fact the summary language does not contain
the word "privacy" is of no significance. It was a "summary."
Finally, the State's specific arguments that there are limitations on the "unreasonable
invasions of privacy" provision do not withstand careful analysis. The State makes
two broad arguments to support these limitations. One argument is based on the
placement of the "unreasonable invasions of privacy" provision in the same section
of article I of our constitution as our "search and seizure" provision. The other
argument relies on the work of the 1966-69 "West Committee."48 I will address both
arguments in turn.
48
"In 1966, the West Committee engaged in a three-year study of the South Carolina
Constitution and recommended revisions in its 1969 Final Report." Adams v.
McMaster, 432 S.C. 225, 240, 851 S.E.2d 703, 710-11 (2020). The official name of
the West Committee is "Committee to Make a Study of the Constitution of South
Carolina of 1895." We have considered the work of the West Committee in prior
cases to assist us in understanding the intent behind the 1971 amendments to our
constitution, but only when the language of the constitutional provision at issue was
ambiguous. See J.K. Constr., 336 S.C. at 170, 519 S.E.2d at 565 ("In construing a
. . . constitutional provision, the Court must give clear and unambiguous terms their
plain and ordinary meaning . . . ."). We actually considered the work of the West
Committee as a part of our analysis in four cases. See Adams, 432 S.C. at 240-41,
851 S.E.2d at 710-11 (considering the Governor's argument the West Committee
report supports his interpretation of the ambiguous terms "public funds" and "direct
benefit" in article XI, section 4, but rejecting the argument); Sloan v. Sanford, 357
S.C. 431, 435-37, 593 S.E.2d 470, 472-73 (2004) (analyzing the ambiguous term
"militia" in article IV, section 2 and thus resorting to the West Committee minutes
to "confirm the dual-office holding purpose of the provision" and its "underlying
separation of powers rationale" (citation omitted)); Diamonds v. Greenville Cnty.,
325 S.C. 154, 158, 480 S.E.2d 718, 720 (1997) (using the West Committee Final
Report to analyze the meaning of the ambiguous "set aside" provision of article VIII,
section 14); Williams v. Morris, 320 S.C. 196, 199, 203, 464 S.E.2d 97, 98, 100
(1995) (analyzing competing interpretations of article IV, section 21, stating "there
is some merit to both positions," and citing West Committee Final Report to support
our conclusion). In seven other cases, we mentioned the West Committee without
considering it as part of our analysis. See S.C. Ambulatory Surgery Ctr. Ass'n v. S.C.
Workers' Comp. Comm'n, 389 S.C. 380, 391, 699 S.E.2d 146, 152 (2010) (noting
we cited the West Committee in Ross, infra); Forrester, 343 S.C. at 647, 541 S.E.2d
at 842 (stating the West Committee "recognized" that article I, section 10 "would
have an impact beyond just the area of electronic surveillance"); Joytime Distribs.
The fact the "unreasonable invasions of privacy" provision is contained in the same
section of the constitution as our search and seizure provision has no significance.
First, the title to article I, section 10—"Searches and seizures; invasions of
privacy"—does not support the State's argument, but indicates the section contains
two separate, independent rights. Second, eight other sections of article I of our
constitution—"Declaration of Rights"—set forth separate, independent rights. In
article I, section 2, for example, the constitution sets forth the rights of freedom of
religion, freedom of speech, freedom of the press, and the rights of assembly and
petition. No one would argue with a straight face that because the right of assembly
is contained in the section setting forth the right of freedom of religion that our
constitution guarantees the right to assemble only for purposes of religion. See also
S.C. Const. art. I, § 3 (setting forth three separate, independent rights); art. I, § 4
(setting forth five separate, independent rights); art. I, § 12 (setting forth two
separate, independent rights); art. I, § 13 (setting forth three separate, independent
rights); art. I, § 14 (setting forth six separate, independent rights); art. I, § 15 (setting
& Amusement Co. v. State, 338 S.C. 634, 643, 528 S.E.2d 647, 651-52 (1999) (citing
West Committee minutes only to demonstrate there is not a direct legislation clause
in our constitution); Ross v. Med. Univ. of S.C., 328 S.C. 51, 68, 492 S.E.2d 62, 71
(1997) (citing West Committee Final Report only to indicate when article I, section
22 was added to the constitution); Hosp. Ass'n of S.C., Inc. v. Cnty. of Charleston,
320 S.C. 219, 225, 464 S.E.2d 113, 117 (1995) (citing West Committee Final Report
as background for how the "home rule" provisions of article VIII, sections 7 and 9,
and article VII, section 17 came to be enacted); State ex rel. Riley v. Martin, 274
S.C. 106, 110-12, 262 S.E.2d 404, 406-07 (1980) (concluding article V, section 1
clearly does not preclude a statutory court of appeals, then citing the West
Committee for legislative history); Moye v. Caughman, 265 S.C. 140, 143 n.1, 217
S.E.2d 36, 38 n.1 (1975) (citing West Committee Final Report regarding our
discussion of article XI, section 1, which was not at issue in the case); Knight v.
Salisbury, 262 S.C. 565, 570, 206 S.E.2d 875, 877 (1974) (lead opinion of only one
Justice citing West Committee Final Report as background for article VIII, section
7). I am not impugning the work of the West Committee, which will certainly be
important in future cases as it has been in the past. In this case, however, for the
reasons discussed in note 10 and its associated text, the work of the West Committee
should not be a part of our analysis.
forth four separate, independent rights); art. I, § 20 (setting forth at least two
separate, independent rights); art. I, § 22 (setting forth at least three separate,
independent rights). Nine sections of article I contain multiple rights. The fact our
"unreasonable invasions of privacy" provision of article I, section 10 is one of them
is of no significance.
The State also argues the work of the West Committee indicates the article I, section
10 "unreasonable invasions of privacy" provision is limited to invasions of privacy
related to electronic surveillance in the context of search and seizure. The most
important point to note about the work of the West Committee on the question of
privacy is the General Assembly did not adopt the committee's recommendation for
the language of the privacy provision. Compare S.C. Const. art. I, § 10, with
Committee to Make a Study of the Constitution of South Carolina of 1895, Final
Report 14 (1969). We have no indication why the General Assembly made that
choice. To find the General Assembly adopted limitations supposedly suggested by
the West Committee based on the General Assembly's decision not to adopt the
committee's recommended text would be speculation.
Nevertheless, turning to the State's argument, the State relies on a statement in the
West Committee's Final Report that the privacy provision "is designed to protect the
citizen from improper use of electronic devices, computer data banks, etc." West
Committee Final Report at 15. The statement is of no significance. It would have
been inconceivable to write a privacy guarantee in 1969 that was not in part
"designed to protect the citizen from improper use of electronic devices" that were
becoming so prevalent at that time. There is nothing in this statement, however, or
anywhere else in the proceedings of the West Committee, that indicates electronic
surveillance was the only privacy concern intended to be addressed by the provision.
See Forrester, 343 S.C. at 647, 541 S.E.2d at 842 (stating "the [West] committee
also recognized that the [unreasonable invasions of privacy] provision would have
an impact beyond just the area of electronic surveillance"). 49
49
To be clear, the work of the West Committee is irrelevant to an analysis of the
meaning of the article I, section 10 "unreasonable invasions of privacy" provision.
See supra note 5 (citing McKenzie, 251 S.C. at 231, 161 S.E.2d at 661; Smith, 419
S.C. at 555, 556, 799 S.E.2d at 483; Hodges, 341 S.C. at 85, 533 S.E.2d at 581). But
the State and Justice James put so much emphasis on the work of the West
Committee that I feel I must address it. If we are to consider the West Committee's
work, we should consider it carefully and in its entirety. Such careful and complete
consideration—as opposed to cherry-picking out-of-context language that appears
to support the result one wants—leads, for example, to an October 6, 1967 West
Committee meeting in which the Committee debated the privacy provision. In one
particularly interesting dialogue, "Staff Consultant" Robert H. Stoudemire offered
an illustration of how the privacy provision would work, "See what [Attorney
General Daniel R. McLeod is] getting at here is that, I think, if the Tax Commission
gives a tape to the computer center and they release information from this . . . , then
I think this would give me the right to have some type of court action that they have
violated my privacy . . . ." Committee to Make a Study of the Constitution of South
Carolina of 1895, West Committee Meeting Minutes 7 (Oct. 6, 1967); (J.A. at 952).
Committee member W.D. Workman Jr.—a longtime Republican activist and 1962
Republican U.S. Senate candidate—responded, "What our goal is, is to insert into
the Constitution that which would give an aggrieved individual a cause for action
[sic] if the authorities get out of hand in invasion of privacy by whatever means."
Id. (emphasis added). This dialogue supports a broader interpretation of the
"unreasonable invasions of privacy" provision than the State proposes.
Here I concede I am doing my own "cherry-picking." This is intentional. But I am
not using the passages I cite to argue the work of the West Committee supports my
interpretation of article I, section 10. Rather, I am responding to the State's and
Justice James' recitation of language that appears to support a limited interpretation
by pointing out there is also language supporting a broader interpretation. A careful
and complete consideration of the work of the West Committee leads to ample
support for a broader interpretation, such as an October 2, 1967 letter from Attorney
General McLeod to Mr. Stoudemire recommending several additional forms of
privacy be protected beyond "interception of communication . . . by electronic
means," such as privacy protection "in such matters as income tax, health and public
welfare." Letter from Daniel R. McLeod, Att'y Gen. of S.C., to Committee to Make
a Study of the Constitution of South Carolina of 1895, at 1 (Oct. 2, 1967); (J.A. at
947). Attorney General McLeod continued, "The need to formulate a decision as to
what information should or should not be made available under a multitude of
circumstances is clearly dictated if privacy is to fulfill its function in our democratic
society." Id.A careful and complete consideration of the work of the West Committee leads to
even more support for a broader interpretation, such as the transcript of a November
19, 1968 meeting in which the Chairman brought up the topic, "Secure from
unreasonable invasions of privacy -- shall not be violated." West Committee
Meeting Minutes 8 (Nov. 19, 1968); (J.A. at 972). Mr. Stoudemire then referenced
the committee's previous discussions of "mass computer data" and "electronic stuff,"
It is clear, therefore, that the "unreasonable invasions of privacy" provision in article
I, section 10 of our constitution is broad and applies to the full panoply of privacy
rights Americans have come to enjoy over the history of our Nation. There was no
need when article I, section 10 was adopted to identify which forms of privacy are
included. As we said in Ansel, "It would not be practicable, if possible, in a written
constitution to specify in detail all of its objects and purposes, or the means by which
they are to be carried into effect. Such prolixity in a code designed as a frame of
government has never been considered necessary or desirable; therefore
constitutional powers are often granted or restrained in general terms . . . ." 171 S.C.
at 438, 172 S.E. at 436. Article I, section 10 protects all privacy interests from
unreasonable invasion.
and stated, "As you recall, gentlemen, we got into long discussions on this and
decided that there was no way that we could find language to foresee what was going
to be an unreasonable invasion in 1980 and the agreement of the Committee was that
we would strike a general statement that people could rely on, rather than trying to
itemize." West Committee Meeting Minutes 9 (Nov. 19, 1968); (J.A. at 973). Mr.
Stoudemire then summarized what he called "the agreement of the Committee,"
stating, "The people shall be secure from unreasonable invasion of privacy period."
Id. In fact, in the same paragraph of the Final Report as the language the State relies
on, the Committee stated "the Committee recommends only a broad statement on
policy, leaving the details to be regulated by law and court decisions." West
Committee Final Report at 15; (J.A. at 266); see also Forrester, 343 S.C. at 647, 541
S.E.2d at 842 (2001) (quoting West Committee member and Charleston lawyer
Huger Sinkler who stated, "I think this is an area that, really, should develop and
should not be confined to the intent of those who sit around this table"); West
Committee Meeting Minutes 8 (Oct. 6, 1967); (J.A. at 953) (committee member
Sinkler stating, "We don't want to just blindly assume that we're going to have a
bunch of idiots on the Supreme Court for the rest of time. Maybe there is some hope
there somewhere."). A careful and complete consideration of the West Committee's
work as to the article I, section 10 "unreasonable invasions of privacy" provision—
as opposed to cherry-picking—yields evidence supporting every possible competing
position, and leads inescapably to the conclusion that the West Committee's work,
while it has been useful to us in other cases, see supra note 9, is irrelevant to this
case.
III.
I turn now to the specific privacy interests implicated when the State pursues its
important and legitimate interest in protecting the lives of unborn children by
regulating a woman's opportunity to have an abortion.50 See Roe, 410 U.S. at 162,
93 S. Ct. at 731, 35 L. Ed. 2d at 182 (explaining "the State does have . . . still another
important and legitimate interest in protecting the potentiality of human life").
Those privacy interests arise initially in the process of deliberation and prayer a
woman may go through immediately upon learning she is pregnant. The privacy
interests also arise in conversations a pregnant woman might have with her husband
or boyfriend, her minister or other professional counselor, her doctor, and other
loved ones and friends she might turn to for guidance and advice in making an
informed choice about whether to continue the pregnancy. As to conversations she
has with her husband, doctors, ministers, and other counselors, there are legal and
ethical privileges that require her privacy be honored.51 There are additional privacy
50
The word "opportunity" was carefully chosen. See infra note 26. As I will explain
in sections IV and VI, I deny there is a constitutional "right" to abortion.
51
See S.C. Code Ann. § 19-11-30 (2014) (providing "no husband or wife may be
required to disclose any confidential . . . communication made by one to the other
during their marriage"); McCormick v. England, 328 S.C. 627, 635, 494 S.E.2d 431,
435 (Ct. App. 1997) ("The belief that physicians should respect the confidences
revealed by their patients in the course of treatment is a concept that has its genesis
in the Hippocratic Oath, which states in pertinent part: 'Whatever, in connection with
my professional practice, or not in connection with it, I see or hear, in the life of
men, which ought not to be spoken of abroad, I will not divulge as reckoning that all
such should be kept secret.'" (quoting Taber's Cyclopedic Medical Dictionary 902
(17th ed. 1993))); S.C. Code Ann. Regs. 81-60(D) (2012) ("A physician shall respect
the rights of patients . . . and shall safeguard patient confidence within the constraints
of the law."); S.C. Code Ann. § 19-11-90 (2014) (providing "no regular or duly
ordained minister, priest or rabbi shall be required, in giving testimony, to disclose
any confidential communication properly entrusted to him in his professional
capacity and necessary and proper to enable him to discharge the functions of his
office according to the usual course of practice or discipline of his church or religious
body"); S.C. State Highway Dep't v. Booker, 260 S.C. 245, 254, 195 S.E.2d 615, 619
(1973) ("South Carolina recognizes privilege in civil matters in . . . husband-wife
relations, and priest-penitent relations."); S.C. Code Ann. § 19-11-95(B)(1) (2014)
considerations in her family planning and autonomy over her own medical decisions.
See Singleton, 313 S.C. at 89, 437 S.E.2d at 61 (recognizing the State cannot commit
"unwarranted medical intrusions"). Finally, any medical procedures a pregnant
woman chooses to have—including an abortion—or chooses not to have—implicate
her privacy interests.
In addition, as I will explain in subsection V.B. of this opinion, our General
Assembly specifically recognized in the six-week bill the importance of "informed
choice about whether to continue a pregnancy." 2021 S.C. Acts at 3. That choice is
a private choice.
IV.
These privacy interests, however, are not absolute. See Hooper, 334 S.C. at 293-95,
513 S.E.2d at 364-66 (explaining article I, section 10 privacy interests are "not
absolute" but must be balanced against the State's interests). Thus, the existence of
these privacy interests does not give rise to a "right" to abortion, nor do these
interests alone render the Fetal Heartbeat Act unconstitutional. The terms of article
I, section 10 itself—"unreasonable invasions of privacy"—contemplate the State
may intrude upon any privacy interest, so long as doing so is not unreasonable. I
turn, therefore, to the heart of any article I, section 10 "unreasonable invasions of
privacy" inquiry—whether the State's action is an unreasonable invasion of privacy.
The extent to which abortion should be regulated is a legislative—or political—
question. The difference between that political question and the legal questions we
address in this case is critical to a true separation of powers. See S.C. Const. art. I,
§ 8. On the legislative side, the General Assembly considers the evidence it finds
important to the issue before it and then decides on a policy basis whether any
restrictions it seeks to place on a woman's opportunity for an abortion are reasonable,
balancing the State interests at issue with the privacy and other interests implicated.
Courts, however, must defer to the legislative judgment unless—as counsel for
Planned Parenthood put it during oral argument—the legislative judgment is
(stating "a provider knowingly may not reveal a confidence of his patient"); S.C.
Code Ann. § 19-11-95(A)(1) (2014) ("'Provider' means a person licensed . . . and
who enters into a relationship with a patient to provide . . . counseling . . . .").
"unreasonable per se," 52 or as I would put it, unreasonable as a matter of law. See
Doe v. State, 421 S.C. 490, 501, 808 S.E.2d 807, 813 (2017) (explaining "our scope
of review is limited in cases involving a constitutional challenge to a statute");
Abbeville II, 410 S.C. at 664, 767 S.E.2d at 181 (Kittredge, J., dissenting) (stating
"judges must demonstrate restraint").
To illustrate this point—that courts must defer to the legislative judgment unless it
is unreasonable as a matter of law—I turn to prior legislation restricting a woman's
opportunity for an abortion. The 1974 "Act to Provide for Legal Abortions," for
example, provided that no pregnant woman may have an abortion during the third
trimester of pregnancy unless "the attending physician and one additional consulting
physician . . . certify in writing . . . that the abortion is necessary . . . to preserve the
life or health of the woman." Act No. 1215, 1974 S.C. Acts 2837, 2838-39. That
provision—still the law of South Carolina codified at subsection 44-41-20(c) of the
South Carolina Code (2018)—was and remains a noncontroversial, indisputably
reasonable "invasion" of the privacy interests discussed in Section III of this opinion.
Despite the fact a woman's privacy interests are restricted by subsection 44-41-20(c),
the restriction is valid because it does not unreasonably invade her privacy.
Subsection 44-41-20(c) illustrates the difference between the political and legal
questions because even if someone were to disagree with the legislative
determination that the restriction is reasonable, no one could argue the law provides
a basis for overriding that legislative determination. See Smith, 419 S.C. at 565, 799
S.E.2d at 488 ("We are a court, not a legislative body. That a court may disagree
with a legislative body's policy decisions or believe a perceived 'more fair' outcome
exists is of no moment."). In other words, no one could argue the subsection 44-41-
20(c) "invasion of privacy" is unreasonable as a matter of law.
The 2016 "Pain-Capable Act" also illustrates the point. As the common name
"twenty-week bill" implies, the 2016 Act provided, "No person shall perform . . . an
abortion upon a woman when it has been determined . . . that the probable post-
fertilization age of the woman's unborn child is twenty or more weeks," with certain
exceptions. Act No. 183, 2016 Acts 1406, 1410 (codified at S.C. Code Ann. § 44-
52
"Per se" is an old Latin term that means, "Of, in, or by itself; standing alone,
without reference to additional facts." Per se, BLACK'S LAW DICTIONARY (11th ed.
2019). In modern English usage in the context in which counsel used the term, the
better phrase is "as a matter of law." Counsel's use of the term "per se," however, is
consistent with my use of the phrase "as a matter of law."
41-450(A) (2018)). As justification for this restriction on a woman's opportunity to
have an abortion, Roe itself—as referenced above—recognized a state's "important
and legitimate interest in protecting the potentiality of human life." 410 U.S. at 162,
93 S. Ct. at 731, 35 L. Ed. 2d at 182. The twenty-week bill specifically recites this
interest as a "compelling state interest in protecting the lives of unborn children from
the stage of viability." S.C. Code Ann. § 44-41-420(13) (2018). Separate from and
in addition to that interest, the twenty-week bill also recites "a compelling state
interest in protecting the lives of unborn children from the stage at which . . . they
are capable of feeling pain." § 44-41-420(12). In pursuit of these interests, the
General Assembly imposed the twenty-week ban on abortion.
Unlike the 1974 Act, however, the "twenty-week bill" was highly controversial.
Many South Carolina citizens contended then and contend now that the restrictions
the 2016 Act placed on a woman's opportunity to have an abortion are unreasonable.
Nevertheless, from a legal standpoint, even though we recognize the political views
of others may be different, this Court recognizes that the law provides no basis for
overriding the legislative policy determination underlying the "twenty-week bill."
In other words, the twenty-week restriction on a woman's opportunity to have an
abortion is not—as a matter of law—an unreasonable invasion of privacy.
As these examples illustrate, we may not find the Fetal Heartbeat Act violates article
I, section 10 unless we find its restrictions on a pregnant woman's opportunity to
have an abortion are—as a matter of law—an unreasonable invasion of her privacy.
V.
This brings me to the 2021 Fetal Heartbeat Act, or "six-week bill." In enacting the
legislation, the 124th General Assembly necessarily considered the evidence it
deemed important and balanced the State's important interests against any
countervailing interests that may exist.
A. State Interests
First, it is important to stress what is not a State interest that justifies the "six-week
bill." For years, a minority of the General Assembly attempted to enact legislation
banning abortion altogether. See, e.g., S. 129, 121st Gen. Assemb., Reg. Sess. (S.C.
2015). Those "personhood bills"—based on what would have become a legislative
finding that human life begins at conception 53—consistently failed to gain majority
53
S. 129 of 2015, for example, would have added a new section to Title 1 of the
Code—"Administration of the Government"—providing, "The right to life for each
support.54 This year, the House of Representatives passed a near-total ban on
abortion. See H. 5399, H.R. Journal, 124th Leg. Sess., at ____ (S.C. Aug. 30, 2022).
Like its predecessors, H. 5399—had it passed the Senate—would have been based
on the finding, "It is undisputed that the life of every human being begins at
born and preborn human being vests at fertilization." S. 129, 121st Gen. Assemb.,
Reg. Sess. (S.C. 2015).
54
See, e.g., S. 1335, 124th Gen. Assemb., Reg. Sess. (S.C. 2022) (proposed but not
adopted legislation adding a new section to Title 16—"Criminal Code"—providing,
"The right to life for each born and preborn human being is inherent and unalienable
beginning at fertilization"); H. 5401, 124th Gen. Assemb., Reg. Sess. (S.C. 2022)
(proposed but not adopted legislation adding a new section to Title 16—Criminal
Code—providing, "The General Assembly finds that a human being is a person at
fertilization"); S. 381, 124th Gen. Assemb., Reg. Sess. (S.C. 2021) (proposed but
not adopted legislation adding a new section to Title 1 providing, "The General
Assembly finds that a human being is a person at fertilization"); H. 3568, 124th Gen.
Assemb., Reg. Sess. (2021) (proposed but not adopted legislation adding a new
section to Title 1 providing, "The General Assembly finds that a human being is a
person at fertilization"); H. 3289, 123rd Gen. Assemb., Reg. Sess. (S.C. 2019)
(proposed but not adopted legislation adding a new section to Title 1 providing, "The
General Assembly finds that a human being is a unique person, a distinct person . . .
from fertilization forward, and therefore asserts a compelling state interest in the
protection of the rights to life, due process, and equal protection, from fertilization
forward"); H. 3920, 123rd Gen. Assemb., Reg. Sess. (S.C. 2019) (proposed but not
adopted legislation adding a new section to Title 1 providing, "The General
Assembly finds that a human being is a person at fertilization"); S. 485, 123rd Gen.
Assemb., Reg. Sess. (S.C. 2019) (proposed but not adopted legislation adding a new
section to Title 1 providing, "The General Assembly finds that a human being is a
person at fertilization, and . . . asserts a compelling state interest in the protection of
the rights to life, due process and equal protection, from fertilization forward"); S.
217, 122nd Gen. Assemb., Reg. Sess. (S.C. 2017) (proposed but not adopted
legislation adding a new section to Title 1 providing, "The General Assembly finds
that a human being is a person at fertilization"); H. 3530, 122nd Gen. Assemb., Reg.
Sess. (S.C. 2017) (proposed but not adopted legislation adding a new section to Title
1 providing, "The right to life for each born and preborn human being vests at
fertilization").
conception." H. 5399, § 2(4). Had H. 5399 become law, the State may have had a
good argument there is no countervailing interest that could render unreasonable the
State's use of a total ban on abortion to protect human life from the point of
conception. In other words, if the State were to pass a total ban on abortion—despite
a complete invasion of a pregnant woman's right to privacy—the privacy invasion
might be reasonable under article I, section 10, because "human life" has no
countervailing interest; human life simply must be preserved. But the General
Assembly failed to pass the personhood bills, and this year the Senate refused to pass
H. 5399. S. Journal, 124th Leg. Sess., at ____ (S.C. Oct. 18, 2022). Thus, despite
consistent efforts, there is no legislative policy determination that human life—
"personhood"—begins at conception, and there is no such State interest that justifies
enacting the six-week bill.
There are—of course—other important State interests advanced by the six-week bill.
Certainly, the restrictions on a woman's opportunity for an abortion contained in the
six-week bill advance the State's legitimate interest—as acknowledged in Roe—in
"protecting the potentiality of human life." 410 U.S. at 162, 93 S. Ct. at 731, 35 L.
Ed. 2d at 182. As it did in the 2016 twenty-week bill, the General Assembly
specifically recited this interest in the six-week bill, stating, "South Carolina has
legitimate interests from the outset of a pregnancy in protecting . . . the life of the
unborn child who may be born." Fetal Heartbeat Act, sec. 2(7), 2021 S.C. Acts at 3.
These interests are advanced by the simple fact that—given the shorter time frame
for choosing to continue a pregnancy under the six-week bill—fewer women will
make the choice to not continue a pregnancy. 55 By reducing the number of women
who choose to have an abortion, the six-week bill advances these legitimate State
interests.
B. Countervailing Interests
The State interests advanced by the six-week bill, however—unlike the State interest
that might have justified a total ban—are not absolute. Rather, they necessarily
contemplate countervailing interests, such as a woman's right to privacy. The six-
55
See Margot Sanger-Katz & Claire Cain Miller, Legal Abortions Fell Around 6
Percent in Two Months After End of Roe, N.Y. TIMES: THE UPSHOT (Oct. 30, 2022),
https://www.nytimes.com/2022/10/30/upshot/legal-abortions-fall-roe.html ("In
states with bans and restrictions, there were about 22,000 fewer abortions in July and
August, compared with the baseline of April, before the decision.").
week bill itself identifies another countervailing interest: "informed choice." The
General Assembly provided the following in the "legislative findings" section of the
bill,
The General Assembly hereby finds, according to contemporary
medical research, . . . :
...
(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.
2021 S.C. Acts at 3. 56
With the General Assembly's codification of a woman's right "to make an informed
choice about whether to continue a pregnancy" as a countervailing interest, the six-
week ban on abortion raises several concerns. First, in an apparent effort to advance
this interest of "informed choice," the General Assembly included in the six-week
bill what is now codified at section 44-41-640 of the South Carolina Code (Supp.
2022), which provides,
If a pregnancy is at least eight weeks after fertilization, then the abortion
provider who is to perform or induce an abortion . . . shall tell the
woman that it may be possible to make the embryonic or fetal heartbeat
of the unborn child audible for the pregnant woman to hear and shall
ask the woman if she would like to hear the heartbeat. If the woman
would like to hear the heartbeat, then the abortion provider shall . . .
make the fetal heartbeat of the unborn child audible for the pregnant
woman to hear.
56
The legislative findings section of the 2021 six-week bill was not codified, unlike
the legislative findings of the 2016 Pain-Capable Act, which are codified at section
44-41-420 of the South Carolina Code (2018). The 2021 findings are included in an
"Editor's Note" to the codification of the Fetal Heartbeat Act. S.C. Code Ann., tit.
44, ch. 41, art. 6 editor's note (Supp. 2022).
This requirement that the abortion provider give the pregnant woman an opportunity
to hear the fetal heartbeat makes no apparent sense because if the pregnant woman
can hear the fetal heartbeat, then her opportunity to "make an informed choice" has
already expired. Thus, it is difficult to understand how the General Assembly's
recited interest of "informed choice" is advanced by the six-week bill.
The second concern is how much time a woman actually has to make such a choice.
This concern is heightened by the fact the common name "six-week bill" can be
misleading. The 2016 "Pain-Capable Act"—twenty-week bill—prohibits an
abortion at the point in time the General Assembly found an unborn child is capable
of feeling pain. This point in time is generally thought to be twenty weeks "post-
fertilization." See § 44-41-420(11) (finding "there is substantial medical evidence
that an unborn child is capable of experiencing pain by twenty weeks after
fertilization"). Thus, the operative section of the twenty-week bill provides, "No
person shall perform . . . an abortion upon a woman when it has been determined . . .
that the probable post-fertilization age of the woman's unborn child is twenty or more
weeks." § 44-41-450(A). The important point is the line in the twenty-week bill
after which no abortion may take place is drawn from fertilization.
In the so-called six-week bill, however, the actual line is not drawn from fertilization
but is determined according to "whether the human fetus the pregnant woman is
carrying has a detectable fetal heartbeat." S.C. Code Ann. § 44-41-650(A) (Supp.
2022). 57 Because this point in time is generally thought to be six weeks after a
woman's last menstrual period, the Fetal Heartbeat Act has been commonly referred
to as the "six-week bill." If the common name of the Fetal Heartbeat Act were
constructed in the same way as the common name "twenty-week bill"—by length of
time post-fertilization—the Fetal Heartbeat Act would be named the "four-week
bill," as it is generally thought there is a detectable heartbeat at four weeks post-
57
Justice Hearn and Chief Justice Beatty address what they contend is a misuse of
terms in the Fetal Heartbeat Act, particularly the term "fetal heartbeat." This does
not concern me. Regardless of the term used, the Fetal Heartbeat Act—particularly
subsection 44-41-610(3)—identifies a circumstance that medical professionals can
recognize with certainty. The disagreement over what to call that circumstance is
not significant.
fertilization. See (Resp't Att'y General Br. 6). 58 In considering the General
Assembly's focus on "informed choice about whether to continue a pregnancy,"
therefore, and in considering a woman's right of privacy, it is important to
understand that under the six-week bill, a pregnant woman's choice must be made—
and carried out—within four weeks of the time she becomes pregnant.
Although the Fetal Heartbeat Act recognizes the interest of "informed choice," a
woman's interest in choice is not dependent on this portion of the Act. The choice
of whether to continue a pregnancy or to have an abortion is an inherently private
matter that implicates article I, section 10. The General Assembly's codification of
"informed choice" as an interest to be valued here simply recognizes this obvious
fact that abortion is a private choice. The article I, section 10 right of privacy,
therefore, in this context, includes choice.
C. Balancing of Interests
Once the competing interests have been identified, they must be balanced. See
Hooper, 334 S.C. at 293-95, 513 S.E.2d at 364-66 (explaining article I, section 10
privacy interests are "not absolute" but must be balanced against the State's
interests). This necessity of balancing interests may shed light on a comment I made
in subsection V.A., which might otherwise have seemed counterintuitive. I
remarked that "if the State were to pass a total ban on abortion—despite a complete
invasion of a pregnant woman's right to privacy—the privacy invasion might be
reasonable under article I, section 10." Justice Kittredge explains this well in his
dissent when he points out that when the State criminalizes rape and child abuse—
crimes which usually occur in private—the associated invasion of privacy is
reasonable, and thus, there is no article I, section 10 issue. This is true because when
the applicable privacy interests are balanced against the State's compelling interest
in preventing crime, the balancing clearly supports the criminalization of private
actions. Similarly, if the General Assembly were to make the policy determination
that human life begins at conception—that a newly-conceived fetus is in fact a
person entitled to all the rights due to persons already born—then the hypothetical
58
The Attorney General's brief states the six-week bill "allows an abortion prior to
the detection of a fetal heartbeat (which can be detected at approximately six weeks)
to occur." To support this point, the Attorney General cites an affidavit from its
expert stating, "Cardiac activity . . . can be detected . . . 4-5 weeks post-conception."
(J.A. at 305).
balancing of that compelling interest against the privacy interests implicated by a
total ban on abortion may come out in favor of the State's action. In this case,
however, the interests to be balanced are different, and the balancing is not
hypothetical. The State's interest in "protecting . . . the life of the unborn child" must
be balanced against the countervailing interests of privacy and meaningful choice.
This balancing should begin in the General Assembly. See S.C. Dep't of Soc. Servs.
v. Gamble, 337 S.C. 428, 434-35, 523 S.E.2d 477, 480 (Ct. App. 1999) (studying the
constitutionality of a statute, reciting the competing interests, and finding the statute
constitutional because, "The statute at issue balances these rights").59
D. Fact-Dependent Policy
I now turn to a somewhat unique circumstance we face in the analysis of the
constitutionality of the Fetal Heartbeat Act. Whether a pregnant woman is given an
opportunity to make a meaningful choice and whether the invasion of her privacy by
restricting her opportunity for an abortion is unreasonable each depend on the answer
to one particular factual question: Can a pregnant woman even know she is pregnant
in time to engage in a meaningful decision-making process and—if her choice is to
not continue the pregnancy—make the necessary arrangements to carry out an
abortion? On one hand, it would be difficult to argue the Fetal Heartbeat Act is an
unreasonable invasion of a pregnant woman's privacy if almost all women know they
are pregnant in time to give the question sufficient deliberation and prayer necessary
to making a meaningful choice; to have meaningful discussions with family,
59
I appreciate Justice Kittredge's affirmation of our privacy rights, but he misses a
key point. His analysis is applicable only to an unwritten privacy interest arising
through substantive due process, as was the issue in the federal cases he discusses.
He overlooks the fact the State constitution has a written privacy right. He
incorrectly contends the mere existence of legitimate State interests automatically
overrides any countervailing interest unless a countervailing interest is a "deeply
rooted" right "implicit in the concept of ordered liberty." While his contention is
valid under the theory of substantive due process, it is incorrect under article I,
section 10. Thus, the majority of Justice Kittridge's discussion really has nothing to
do with this case. Under article I, section 10, the competing interests must be
balanced, and if the State interest does not justify denying the countervailing interest,
the privacy invasion is unreasonable. Of course, the article I, section 10 balancing
must begin in the General Assembly, and we may reject its policy judgment only if
we find the invasion of privacy is unreasonable as a matter of law.
ministers, and others; and then to make necessary arrangements to carry out that
choice before the Fetal Heartbeat Act makes the abortion illegal. This is true because
knowledge of a pregnancy is a predicate for informed choice. With knowledge of
her pregnancy, and sufficient time to choose, a restriction on the timing of an
abortion is clearly reasonable. Without knowledge, however, the "choice" is an
illusion—it is no choice at all. Thus, if a substantial percentage of pregnant women
cannot know of their pregnancy in time to have meaningful discussions, engage in
sufficient deliberation and prayer, and then make timely arrangements to carry out
an abortion, then I cannot envision a winning argument that meaningful choice exists
or that the denial of that choice is not an unreasonable invasion of privacy. Whether
a pregnant woman can know of her pregnancy in a manner that is timely under the
Fetal Heartbeat Act is a purely factual determination.
That the legislative policy judgment in this case depends so heavily on one fact—
whether the ban on abortion four weeks from fertilization prevents a substantial
percentage of women from making a meaningful choice because they cannot know
in time they are pregnant—is one of the central points of my analysis, and it makes
this case somewhat unique in our recent constitutional jurisprudence. In 1955 in
Richards v. City of Columbia, 227 S.C. 538, 88 S.E.2d 683 (1955), we confronted a
similarly fact-dependent legislative policy determination in considering the
constitutionality of an ordinance—enacted pursuant to state enabling legislation—
"providing for the repair, alteration, improvement, vacation, closing or demolition
of dwellings or dwelling units unfit for habitation." 227 S.C. at 543, 88 S.E.2d at
685. We stated, "Upon careful consideration of the evidence we find no error in the
conclusion of the [trial] court that the findings of the Legislature and City Council,
. . . that sub-standard housing evils exist, were well-grounded in fact." 227 S.C. at
560, 88 S.E.2d at 694. In 1978 in Bauer v. South Carolina State Housing Authority,
271 S.C. 219, 246 S.E.2d 869 (1978), we also confronted a fact-dependent legislative
policy determination in considering the constitutionality of an "attempt by the
Legislature to enact constitutional legislation designed to alleviate what it has found
to be a serious shortage of sanitary and safe residential housing which is affordable
by certain segments of South Carolina's population." 271 S.C. at 223, 246 S.E.2d at
871. We upheld the legislation, finding there were "no facts of which we may take
judicial notice which tend to negate these findings and being unable to say from their
face that they are 'clearly wrong.'" 271 S.C. at 230, 246 S.E.2d at 875 (citation
omitted).
Other than in Richards and Bauer, however, we have not often recently dealt with a
constitutional challenge to a statute where the legislative policy determination is as
fact-dependent as in this case. Rather, in almost all other recent challenges to the
constitutionality of a statute, we dealt with legislative policy determinations that
were not dependent on factual findings. See, e.g., Doe v. State, 421 S.C. 490, 495-
96, 808 S.E.2d 807, 809-10 (2017) (analyzing whether the statutory definition of
"household member" includes unmarried, same-sex couples); Segars-Andrews v.
Jud. Merit Selection Comm'n, 387 S.C. 109, 116, 130, 691 S.E.2d 453, 457, 464
(2010) (resolving purely legal questions regarding the Judicial Merit Selection
Commission); State v. Bolin, 378 S.C. 96, 100, 662 S.E.2d 38, 39-40 (2008)
(analyzing whether article XVII, section 14 permits the State to ban possession of a
handgun while under the age of twenty-one); Joytime Distribs. & Amusement Co. v.
State, 338 S.C. 634, 638, 528 S.E.2d 647, 649 (1999) (analyzing whether direct
legislation by referendum is constitutional under article III, section 1).
This, therefore, is one of the first fact-dependent legislative policy determinations
we have faced in a constitutional challenge to a statute in over forty years. This
circumstance affects the standard by which we review the constitutionality of the
Fetal Heartbeat Act. If the General Assembly's fact-dependent policy judgments—
and the factual determinations upon which they are based—are "well-grounded in
fact," they will be upheld. Richards, 227 S.C. at 560-61, 88 S.E.2d at 694. However,
if the General Assembly's factual determinations are clearly erroneous, or if there is
no evidence to support them, then the policy determinations and statutory
enactments based on those factual determinations are not entitled to the deference
we ordinarily give them. Id.; 60 see Henry Wolf Biklé, Judicial Determination of
60
In Richards, we stated,
Legislative findings of fact, while not binding upon the court, will not
be overturned except by convincing evidence to the contrary. There is
a strong presumption in favor of the validity of them. . . . [T]here are
many instances where the constitutionality of an act depends upon
pertinent facts and in such a case it is presumed from the mere passage
of the act that there was a finding of such facts as were necessary to
authorize the enactment. However, by the better rule, such implied or
express finding is subject to judicial review, and the court may consider
extrinsic evidence for this purpose, although the statute will not be held
unconstitutional unless such (legislative) finding is clearly erroneous.
227 S.C. at 560-61, 88 S.E.2d at 694 (citations omitted); see also Poulnot v.
Cantwell, 129 S.C. 171, 178-79, 123 S.E. 651, 654 (1924) ("The determination of
questions of fact upon which the constitutionality of statutes may depend is primarily
Questions of Fact Affecting the Constitutional Validity of Legislative Action, 38
Harv. L. Rev. 6, 19 (1924) ("It is clear that the legislative finding as to the fact upon
which the validity of the legislation depends cannot be allowed to be binding upon
the courts, since this would furnish a simple means of preventing judicial review of
such legislation in this class of cases.").
Accordingly, this Court's focus is on the factual question just mentioned: "Can a
pregnant woman even know she is pregnant in time to engage in a meaningful
decision-making process and—if her choice is to not continue the pregnancy—make
the necessary arrangements to have an abortion?" The record before us contains
ample evidence that the majority of women who have abortions in South Carolina
do so more than six weeks post-fertilization. See, e.g., (J.A. at 165-66 & nn. 18-19)
(citing S.C. Dep't of Health & Env't Control, A Public Report Providing Statistics
Compiled from All Abortions Reported to DHEC 3 tbl. 1 (2020),
https://scdhec.gov/sites/default/files/media/document/2020-Abortion_SC-Report
.pdf). This data indicates that in the years 2018 through 2020 in South Carolina,
54.5 to 58.3% of women who had abortions did so more than six weeks post-
fertilization. Id. But this can be misleading here because six weeks after fertilization
is eight weeks after a woman's last menstrual period, which is approximately two
weeks after the Fetal Heartbeat Act prevents an abortion. This data can be
misleading for another reason, because it reflects when the abortion actually took
place, not how early the pregnant woman knew of her pregnancy. There is no data
before us as to the percentage of pregnant women who do not learn they are pregnant,
and thus have inadequate time for meaningful choice, within four weeks of
fertilization.
During oral argument, I pressed counsel for Planned Parenthood for data to support
its argument "the majority of patients who seek abortions in South Carolina are more
than six weeks pregnant, as many patients do not even know they are pregnant at six
weeks." 61 As I framed the question to counsel—for both sides—I wanted to know
what the General Assembly knew when enacting the six-week bill, what Planned
for the Legislature, and the general rule is that the courts will acquiesce in the
legislative decision, unless it is clearly erroneous." (citation omitted)).
61
The quote is from Planned Parenthood's brief, and the reference is to six weeks
from the woman's last menstrual period, which would be roughly four weeks post-
fertilization. (Pet'r Br. 4).
Parenthood knew when it filed this lawsuit, and what medical and scientific research
shows about the percentage of women who cannot know of their pregnancy in time
to make an "informed choice"—and then make the necessary arrangements to obtain
an abortion—within four weeks of fertilization.
After oral argument, the Court directed our clerk to inquire whether the parties had
any objections if the Court were to "ask the parties to file supplemental briefs,
together with any statistical studies that are relevant to the issue of the gestational
time when women realize they are pregnant, paying particular attention to any
difference to intended or unintended pregnancies." The Governor, House Speaker
and Senate President, and Attorney General objected. The State's objection to our
receiving this information is surprising to me for two primary reasons.
First, as I discussed above, it is indisputable that whether a pregnant woman can
know she is pregnant in a timely manner is important to the interests of privacy and
informed choice. In their "Objection to the Court's Inquiry about Its Potential
Receipt of Irrelevant Subjective Information," the House Speaker and Senate
President acknowledge "such 'studies' could . . . have value in establishing policy
decisions regarding abortions." The information, therefore, is necessarily important
to this Court's constitutional analysis because we must determine whether the "policy
decisions" are "well-grounded in fact." Richards, 227 S.C. at 560, 88 S.E.2d at 694.
The State has been careful to stress that the separation of powers under article I,
section 8 of our constitution requires this Court to respect the political judgments
made by the General Assembly. That respect requires the Court to uphold a factual
premise for a legislative policy judgment unless the factual premise is clearly
erroneous or based on no evidence. Richards, 227 S.C. at 560-61, 88 S.E.2d at 694.
Separation of powers, however, does not require—indeed does not permit—the
Court to blindly accept such a factual premise. See Bauer, 271 S.C. at 229, 246
S.E.2d at 875 ("Legislative findings and declarations have no magical quality to
make valid that which is invalid but they are entitled to weight." (cleaned up)
(citation omitted)). If this Court is to fulfill its duty to analyze the constitutionality
of legislation on the basis of law, and not blindly accept the General Assembly's
policy judgments as our legal conclusions, we must have the evidence before us to
conduct a proper constitutional analysis.
The second reason I am surprised by the State's objection is because I assumed the
information was known to the General Assembly at the time it enacted the six-week
bill. Making the determination of whether a pregnant woman can know she is
pregnant in a timely manner—a fact-finding exercise—is important to both the
interests of informed choice—codified in the Act—and privacy—a constitutionally
protected right. And yet, the State essentially boasts to this Court that the General
Assembly did not even consider the question. 62 In other words—having identified
"informed choice" as a countervailing interest to the State's interest in protecting
unborn life—the State cannot point to a single fact the General Assembly considered
that could support a factual determination that such a choice meaningfully exists
under the Fetal Heartbeat Act.
E. Law and Analysis
All statutes are presumed to be constitutional. Doe, 421 S.C. at 501, 808 S.E.2d at
813 (citation omitted); Joytime, 338 S.C. at 640, 528 S.E.2d at 650 (citation omitted).
We have consistently stated the party challenging the constitutionality of a statute
bears the burden of demonstrating the constitutional violation. E.g., Powell v. Keel,
433 S.C. 457, 461, 860 S.E.2d 344, 346 (2021); In re Treatment & Care of
Luckabaugh, 351 S.C. 122, 135, 568 S.E.2d 338, 344 (2002). In this case, therefore,
Planned Parenthood was required to prove the Fetal Heartbeat Act violates the article
I, section 10 "unreasonable invasions of privacy" provision. It was Planned
Parenthood who argued "many patients do not even know they are pregnant at six
weeks," but as noted above, Planned Parenthood failed to present any evidence on
this factual question. Planned Parenthood's failure could be fatal to its constitutional
challenge.
62
Several Senators raised the question during the Senate's deliberations on the Fetal
Heartbeat Act. See, e.g., S. 1, S. Journal, 124th Leg. Sess., at 992 (S.C. Jan. 27,
2021) (Senator McElveen stating "my primary concern is the fact that at six weeks
of pregnancy, most women are not yet aware that they are pregnant"); S. 1, S.
Journal, 124th Leg. Sess., at 1016 (S.C. Jan. 28, 2021) (Senator Matthews reciting
the same concern at "eight weeks" based on personal experience). In their objection
to the Court receiving this information, however, the House Speaker and Senate
President concede they know of no evidence whether the Senators were correct. In
fact, the House Speaker and Senate President contend the evidence is irrelevant,
stating "such evidence (if it even exists) does not inform in any way the facial
constitutional challenge presented in this case." (Legislative Leadership's Obj. 2).
They also label the information as "impossible-to-verify" and "impossible-to-test."
(Legislative Leadership's Obj. 3).
As already explained, however, the legislative policy determination in this case is
uniquely fact-dependent. Turning to what the record in this case indicates about the
General Assembly's fact-finding process and factual findings, the Fetal Heartbeat
Act sets forth the General Assembly's factual findings in section 2 of the Act. See
supra note 17. The findings indicate they were made "according to contemporary
medical research," 2021 S.C. Acts at 3, but they do not contain any findings on the
key question of whether a substantial percentage of women cannot know they are
pregnant in time to engage in sufficient deliberation and prayer, have meaningful
discussions, and then make timely arrangements to have an abortion.
This salient omission would not ordinarily affect our analysis. We would simply
assume the General Assembly made the necessary findings but did not list them in
the text of the act. See Richards, 227 S.C. at 561, 88 S.E.2d at 694 (stating it is
"presumed from the mere passage of the act that there was a finding of such facts as
were necessary to authorize the enactment"). Here, however, we know the General
Assembly did not consider this necessary factual question. The Fetal Heartbeat Act
imposes a ban on all abortions after approximately four weeks of pregnancy without
the General Assembly having made any inquiry as to whether a substantial
percentage of women even know they are pregnant by that time. Such an action by
the General Assembly is known in the law as "arbitrary." See Arbitrary, BLACK'S
LAW DICTIONARY (11th ed. 2019) ("of, relating to, or involving a determination
made without consideration of or regard for facts").
That the General Assembly's failure to consider this necessary factual question is
arbitrary under the law is the second central point of my analysis. In many cases,
we have held arbitrary State action violates the constitution. See, e.g., Luckabaugh,
351 S.C. at 140, 568 S.E.2d at 347 ("The purpose of the substantive due process
clause is to prohibit government from engaging in arbitrary . . . acts . . . ."); Samson
v. Greenville Hosp. Sys., 295 S.C. 359, 363, 368 S.E.2d 665, 667 (1988) (stating "a
legislatively created classification" must be "not plainly arbitrary"). Luckabaugh,
Samson, and most other cases dealing with the arbitrary actions of government arise
under the Equal Protection Clause or Due Process Clause. Nevertheless, the concept
prohibiting the State from arbitrary action invading a constitutional right is plainly
applicable in cases where the constitutional standard is "unreasonableness," as it is
here. See Town of Hilton Head Island v. Fine Liquors, Ltd., 302 S.C. 550, 554, 397
S.E.2d 662, 664 (1990) (stating the "exercise of police power is subject to judicial
correction . . . if the action is arbitrary"). This derives from the principle that
government must have some basis to justify the invasion of any constitutional right.
Arbitrary government action has no justification—it is arbitrary—and thus it is
necessarily unreasonable. In particular, under article I, section 10, the denial of
meaningful choice to women arising from the arbitrary failure to even consider the
extent to which that choice is denied is unreasonable. 63 For this reason, I find the
Fetal Heartbeat Act imposes an unreasonable invasion of privacy on pregnant
women.
That ends my analysis. I vote to find the Fetal Heartbeat Act unconstitutional
because the General Assembly's failure to consider the necessary factual question as
a predicate to its policy judgment was arbitrary, as I have explained. However,
because my colleagues base their votes—both to strike down the Fetal Heartbeat Act
and to uphold it—on a different point, I will briefly discuss how the Court would
proceed if we did not know the General Assembly failed to consider the necessary
factual question. In that circumstance, we would consider whether there is evidence
to support the General Assembly's "presumed . . . finding of such facts as were
necessary to authorize the enactment." Richards, 227 S.C. at 561, 88 S.E.2d at 694.
Here, however, because the General Assembly did not consider the question, there
is nothing for the Court to consider. I am nevertheless tempted to address whether
there could be any evidence to support such a "presumed finding" and find the Fetal
Heartbeat Act in violation of article I, section 10 for the additional reason it is
impossible for the General Assembly to reach any conclusion other than a substantial
percentage of pregnant women cannot learn of their pregnancy, have time for
sufficient deliberation and prayer, and if the choice is made to not continue the
pregnancy, then carry out an abortion before the legality of doing so expires under
the Act. I am tempted for the obvious reason that it is plainly obvious a substantial
percentage of women cannot learn of their pregnancy in time to make and carry out
a meaningful choice under the Fetal Heartbeat Act.
I resist this temptation, however, because what is "obvious" to a court is not
ordinarily part of the court's constitutional analysis. But see Brown v. Piper, 91 U.S.
37, 42, 23 L. Ed. 200, 201 (1875) ("But there are many things of which judicial
cognizance may be taken. 'To require proof of every fact, as that Calais is beyond
the jurisdiction of the court, would be utterly and absolutely absurd.'" (quoting
Richard Newcombe Gresley, A Treatise on the Law of Evidence in the Courts of
63
The State's pursuit of its important and legitimate interest in protecting unborn life
is not at all arbitrary. It is important and legitimate. The State's arbitrary action here
is its failure to even consider the countervailing interest of choice, primarily as it
arises under the article I, section 10 "unreasonable invasions of privacy" provision,
but also as codified in the Fetal Heartbeat Act.
Equity 294 (Philadelphia, Nicklin & Johnson 1837))).64 Also, it is not initially for a
court to determine what in this context is "substantial." It is not for a court to assess
the difference between when women who are trying to get pregnant learn of their
pregnancy compared to women who are not trying. It is not for a court to decide
whether such a difference even matters, as it may be true—not for a court to decide—
that sexually active couples who do not want to bear a child should more closely
monitor whether their sexual activity leads to pregnancy. These and other inquiries
of fact and policy judgments must begin—and should end—in the political process
of the General Assembly. Thus, despite the obvious fact a substantial percentage of
women cannot learn of their pregnancy in time to make and carry out a meaningful
choice under the Fetal Heartbeat Act, now is not the time for this Court to address
the constitutional significance of that fact.
VI.
There are several other points argued by the parties that I will address. First, Planned
Parenthood argues this Court should analyze the constitutionality of the Fetal
Heartbeat Act using the "strict scrutiny" standard. I disagree. The strict scrutiny
standard is applicable in an equal protection or substantive due process analysis
where the State action at issue creates a "suspect class" or implicates a "fundamental
right." Luckabaugh, 351 S.C. at 140, 148, 568 S.E.2d at 347, 351 (citations omitted).
Neither circumstance is present here. Under article I, section 10, the State may not
unreasonably invade a person's privacy rights. Our standard for reviewing the
constitutionality of a statute under this provision is whether the privacy restriction is
unreasonable as a matter of law. While this "unreasonableness" standard may be
64
The Brown Court continued,
Facts of universal notoriety need not be proved. . . . Courts will take
notice of whatever is generally known within the limits of their
jurisdiction; and, if the judge's memory is at fault, he may refresh it by
resorting to any means for that purpose which he may deem safe and
proper. This extends to such matters of science as are involved in the
cases brought before him.
91 U.S. at 42, 23 L. Ed. at 201-02.
more strict than a rational relationship test, see Luckabaugh, 351 S.C. at 139-40,
148, 568 S.E.2d at 346-47, 351, it is certainly not a "strict scrutiny" analysis.
Second, the State and the dissenting Justices argue the article I, section 10,
"unreasonable invasions of privacy" provision does not encompass a "right to
abortion." I wholeheartedly agree. With my vote the argument holds a majority
position. However, the argument is not on point. The question before us is whether
the Fetal Heartbeat Act violates a pregnant woman's right to "privacy." By not
enacting a total ban on abortion, the State thereby preserved its longstanding
statutory "opportunity" for abortion.65 When the State seeks to regulate or restrict
that opportunity—as it is undoubtedly entitled to do—the restrictions implicate a
pregnant woman's privacy interests. Under article I, section 10, the State may not
unreasonably invade those privacy interests. The right at issue here is "privacy."66
65
The State argues that until 1970 all abortion was illegal in South Carolina—a
common law and then statutory total ban. Justices Kittredge and Hearn contend
abortion was illegal historically only after "quickening." Regardless of who is
correct, it was the General Assembly that enacted a statutory right to abortion in
1970, although in very limited circumstances. Act No. 821, 1970 S.C. Acts 1892,
1892-93. In 1974—in response to Roe—the General Assembly enacted an
expansive statutory right to abortion, making any abortion legal up to the end of the
second trimester of pregnancy. Act No. 1215, 1974 S.C. Acts 2837, 2838-39. That
statutory right to—or opportunity for—abortion is actually still the law. See § 44-
41-20(a)-(b).
66
As I explained in section II, article I, section 10 is clear that it includes all forms
of privacy. The dissent's suggestion in this case—that Justice Black's dissent in
Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965),
informs us on the scope of the right of privacy under article I, section 10—takes
Justice Black's comments largely out of context. To the extent they do relate to this
case, however, Justice Black's comments support my position the term privacy is
"broad but clear." Justice Black's argument was that by substituting the word
"privacy" for the words actually used in the Bill of Rights, the Court could (1) limit,
as he hypothesizes, the Fourth Amendment to instances in which "property . . . [is]
seized privately and by stealth," 381 U.S. at 509, 85 S. Ct. at 1695, 14 L. Ed. 2d at
530 (Black, J., dissenting), or (2) expand, as he accuses the Griswold majority of
doing, the freedom of speech protection of the First Amendment to all forms of
privacy. The root of Justice Black's criticism of the Griswold majority is that by
defining the scope of First Amendment protections according to what the Griswold
majority calls "the zone of privacy created by several fundamental constitutional
While those privacy rights guarantee that pregnant women—once choice is secured
to them under the Fetal Heartbeat Act—must have a meaningful opportunity to
exercise that choice, there is no constitutional right to an abortion. 67
guarantees," 381 U.S. at 485, 85 S. Ct. at 1682, 14 L. Ed. 2d at 515, the Court
expanded the First Amendment beyond its original intent. See 381 U.S. at 508-11,
85 S. Ct. at 1695-96, 14 L. Ed. 2d at 529-31 (Black, J., dissenting) (explaining that
his previously stated "view" that "First Amendment freedoms . . . have suffered from
a failure of the courts to stick to the simple language of the First Amendment"
results—in Griswold—in an unwarranted expansion of freedom of speech, and
stating, "My disagreement with the Court's opinion holding that there is such a
violation here is a narrow one, relating to the application of the First Amendment to
the facts and circumstances of this particular case"). Justice Black called privacy
"ambiguous" in the context of his argument because using it to define the protections
of the Bill of Rights changes the original meaning of those protections, either
expanding them or limiting them as the case may be. He called privacy "broad"
because privacy reaches all areas of our lives—the full panoply—just as I contend
article I, section 10 was intended to do.
67
Similarly, the Supreme Court of the United States did not create a new
constitutional right to a cell phone when it held the "unreasonable searches and
seizures" provision of the Fourth Amendment prohibits the State from obtaining the
contents of a cell phone without meeting the constitutionally-mandated standard.
Riley v. California, 573 U.S. 373, 403, 134 S. Ct. 2473, 2495, 189 L. Ed. 2d 430,
452 (2014). Despite Riley, Congress has the power to ban cell phones, or the State
could prohibit certain criminals, for example, from accessing them. Once any citizen
secures a cell phone, however, government may not enter it except as provided in
the Fourth Amendment, nor may the State of South Carolina unreasonably invade
the cell phone user's right of privacy. While this analogy may not be a perfect one,
it illustrates that generally stated constitutional rights like those set forth in the
Fourth Amendment and in article I, section 10 extend to areas of our lives the
Framers may never have anticipated, and that by recognizing the Fourth Amendment
and article I, section 10 do reach those areas, courts do not create new constitutional
rights.
Third, the State makes too much of Justice Kittredge's dissent in Abbeville II, as
though that case and this case bear any resemblance whatsoever. I was not on the
Court when we decided Abbeville II, but as I have stated, I agree with Justice
Kittredge's central position in that dissent, and his central position has been
subsequently adopted by a majority of this Court. See supra note 4. In the Abbeville
cases, the Court took a general provision in our constitution requiring the General
Assembly to "provide for the maintenance and support of a system of free public
schools open to all children," S.C. Const. art. XI, § 3; read into that provision the
unwritten right of a "minimally adequate education" and defined the right in some
detail, Abbeville Cnty. Sch. Dist. v. State, 335 S.C. 58, 68, 515 S.E.2d 535, 540
(1999); and then directed the General Assembly to take political action according to
judicial standards and subject to judicial review, Abbeville II, 410 S.C. at 661, 767
S.E.2d at 179. That sort of judicial overstepping is a far cry from our decision in
this case. The question we address in this case is legal—whether the Fetal Heartbeat
Act violates the specific article I, section 10 prohibition on unreasonable invasions
of privacy. The "right" we address in this case is written in the constitution—
privacy. That we are interpreting and applying a specific, written right—privacy—
is what distinguishes this case from the Abbeville cases. While I respect the State's
effort to keep this Court focused on its proper role under the separation of powers
set forth in article I, section 8, the Abbeville cases have nothing to do with this case.
VII.
Political questions surrounding abortion have produced as much impassioned
disagreement as any issue of our time. When those political questions intersect with
questions of law, advocates on both sides of the political questions seem to believe
that the more fervently they hold their political views, the more likely those views
will become someone else's legal views. We have been asked in this case to ignore
well-established principles of law in order to uphold the Fetal Heartbeat Act, and to
create new and novel principles of law to strike down the Act. The parties who made
these requests derive their positions not from sound legal reasoning, but from fervent
political advocacy. These well-intentioned parties act on the basis of their politics.
The Court must act on the basis of law. The article I, section 10 prohibition on
"unreasonable invasions of privacy" is a principle of law. The six-week ban in the
Fetal Heartbeat Act violates the provision because—as a matter of law—it is an
unreasonable intrusion into a pregnant woman's right of privacy. The Fetal
Heartbeat Act is, therefore, unconstitutional.
JUSTICE KITTREDGE: I respectfully dissent. 68 I would hold the Fetal Heartbeat
and Protection from Abortion Act (the Act) is constitutional. The policy decision of
the South Carolina General Assembly does not violate the South Carolina
Constitution, including the provision in article I, section 10 to be free from
unreasonable invasions of privacy. I would further dismiss the complaint and
rescind the temporary injunction staying enforcement of the law.
My colleagues and I fully appreciate the profundity of the emotion surrounding the
abortion debate. The subject of abortion is a divisive and contentious issue in our
society. As United States Supreme Court Justice Kavanaugh observed:
Abortion is a profoundly difficult and contentious issue because it
presents an irreconcilable conflict between the interests of a pregnant
woman who seeks an abortion and the interests in protecting fetal life.
The interests on both sides of the abortion issue are extraordinarily
weighty.
Dobbs v. Jackson Women's Health Org., 142 S. Ct. 2228, 2304 (2022) (Kavanaugh,
J., concurring) (emphasis added).
Justice Kavanaugh may be correct that the subject of abortion presents what appears
to be an "irreconcilable conflict," but the conflict must be settled, for the rule of law
and the necessity for order in our civil society demand a resolution. Beyond the
recognition in Dobbs of the emotion and difficulty surrounding the abortion debate,
it was acknowledged decades ago in Planned Parenthood of Southeastern
Pennsylvania v. Casey that "[m]en and women of good conscience can disagree . . .
about the profound moral and spiritual implications of terminating a pregnancy, even
in its earliest stage." 505 U.S. 833, 850 (1992), overruled by Dobbs, 142 S. Ct. at
2242, 2284.
Whichever way a state reconciles the competing interests will inevitably result in
strong support and strong opposition. 69 In this post-Dobbs world, do we look to
68
Justice James and I agree on all counts, except the potential reach of the privacy
provision in article I, section 10 of the South Carolina Constitution. Save this one
difference of opinion, I join Justice James's excellent dissent.
69
I recall a prior decision of this Court where the majority decided the Court should
take over the operation of the South Carolina public school system, although our
state constitution expressly assigned that duty and authority to the legislature.
Abbeville Cnty. Sch. Dist. v. State (Abbeville II), 410 S.C. 619, 767 S.E.2d 157judges to resolve the "irreconcilable conflict," or do we allow the citizens of each
state to make the decision in a democratic process through their elected
representatives? The majority of the Court has opted for a judicial resolution of this
policy dispute. I do not hesitate in answering that question otherwise: because the
constitution does not mandate a particular outcome, the people of South Carolina,
through their elected representatives, make the decision.
United States Supreme Court Justice Scalia repeatedly advanced a view in favor of
allowing the people to decide the abortion issue:
The States may, if they wish, permit abortion on demand, but the
Constitution does not require them to do so. The permissibility of
abortion, and the limitations upon it, are to be resolved like most
important questions in our democracy: by citizens trying to persuade
one another and then voting. As the Court acknowledges, "where
reasonable people disagree[,] the government can adopt one position or
the other."
Id. at 979 (Scalia, J., concurring in part and dissenting in part) (quoting id. at 851
(majority opinion)). Justice Scalia, of course, was considering only the federal
Constitution. The federal Constitution, as interpreted by the United States Supreme
Court, provides for personal autonomy in many areas, which the majority opinions
here rely on. However, as Justice Scalia and, later, the Supreme Court as a whole
recognized, abortion is different from the widely accepted general right to privacy.
What makes abortion different is the presence of the unborn child. See Dobbs, 142
S. Ct. at 2243.
Giving short shrift to that distinction, Chief Justice Beatty, Justice Hearn, and Justice
Few conclude the Act is unconstitutional and find the South Carolina Constitution's
grant of a privacy interest includes the right to an abortion. Their majority consists
of three opinions: the lead opinion authored by Justice Hearn, a concurrence by Chief
Justice Beatty, and a concurrence by Justice Few. Aside from the result reached, the
majority opinions are notably similar in one particular way: all reject any reliance
(2014). I dissented. In my dissent, I wrote that the Court's educational "policy
mandate to the South Carolina General Assembly will be embraced and applauded."
Id. at 663, 767 S.E.2d at 180 (Kittredge, J., dissenting). I was correct then, and I am
equally confident that today's decision will be similarly received and applauded in
some circles. This will reflect political agreement with the Court's policy decision
concerning abortion, not the Court's faithfulness to the rule of law.
on the West Committee or legislative history to determine the meaning and reach of
the privacy provision in article I, section 10—a stunning departure from settled law.
I, however, interpret the ambiguous phrase "unreasonable invasions of privacy" in
the manner in which its constitutional framers intended it to be read. In doing so, I
conclude the Act does not violate the South Carolina Constitution. After setting
forth the legal case that is before the Court, I will explain my reasoning below.
I.
We accepted this case in our original jurisdiction to address Petitioners' challenge to
the Act. Petitioners include Planned Parenthood and other abortion providers.
Respondents and Respondents-Intervenors (collectively, Respondents) represent
various state officers in their official capacities.
The debate surrounding the abortion issue is longstanding, originating long before
the 1970s and the United States Supreme Court's decision in Roe v. Wade, 410 U.S.
113 (1973), overruled by Dobbs, 142 S. Ct. at 2242, 2284. Roe did not resolve the
matter, for since that decision was issued, the public divide over the abortion issue
has continued to be persistent, unrelenting, and vitriolic, resulting in continual
lawsuits and state legislative efforts to regulate abortion separately from the federal
framework. After several decades of litigation, in Dobbs, the Supreme Court
returned the issue of abortion to the states for the people to determine where to draw
the line between the interest of the pregnant mother and the life of the unborn child.
142 S. Ct. at 2243. The South Carolina legislature, on behalf of the citizens of this
state, sets policy, or at least that is the constitutional design. I remain firmly
anchored to my unwavering commitment to the principle of judicial restraint. Thus,
absent a proper constitutional challenge, the authority of the legislature to make
policy determinations must be honored. Our legislature has made a policy
determination regulating abortions in South Carolina. The legislative policy
determination, as contained in the Act, gives priority to protecting the life of the
unborn child.
Under guiding principles, we must presume legislative enactments reflect the will of
the citizens. Ultimately, as Justice Scalia repeatedly observed, the issue of abortion
must be resolved through the democratic and legislative process. Justice Scalia's
view has now been adopted by the Supreme Court, and pursuant to Dobbs, we know
the United States Constitution does not mandate a right to abortion. Therefore, the
dispositive question before us is whether there is a state constitutional right to
abortion that precludes the citizens of South Carolina, through their elected
representatives, from prohibiting most abortions after the detection of the fetal
heartbeat. Petitioners have succeeded in convincing a majority of this Court to
intervene and strike down the Act as unconstitutional. For this Court to strike down
the Act, the majority must conclude that Petitioners have overcome the heavy
presumption of the Act's constitutionality. More to the point, a finding of the Act's
unconstitutionality must be predicated on a state constitutional right to abortion. 70
In my firm judgment, Petitioners have failed to establish that the state constitution
mandates a right to abortion.
II.
A.
The legal disposition of this case turns on whether there is a constitutional right to
privacy which expressly or impliedly encompasses a right to abortion in South
Carolina. Thus, I must first address whether the citizens of our state enjoy a
constitutional right to privacy. The answer, of course, is "yes": the citizens of South
Carolina, and all citizens of the United States, are constitutionally guaranteed a right
of privacy.
The parties have primarily looked to the search and seizure section of the South
Carolina Constitution—found in article I, section 10—to answer whether our
citizens have a right to privacy to include a right to abortion. As I will explain, the
general, broadest right to privacy finds its expression in the Bill of Rights, especially
the guarantee of due process. The Fourteenth Amendment to the United States
Constitution provides that no state shall deprive any "person of life, liberty, or
property, without due process of law." U.S. Const. amend. XIV, § 1. The South
Carolina Constitution mirrors this guarantee of due process in article I, section 3.
70
Justice Hearn's lead opinion unambiguously finds a right to abortion in our state
constitution. Justice Few's concurrence is less clear, at least to me. The thrust of his
opinion indicates that the state constitutional privacy provision includes abortion.
For example, he writes that the "unreasonable invasion of privacy provision" in the
state constitution "is broad and applies to the full panoply of privacy rights
Americans have come to enjoy over the history of our Nation." Shortly thereafter,
he confirms his view that "any medical procedures a pregnant woman chooses to
have—including an abortion—or chooses not to have—implicate her privacy
interests." Nonetheless, Justice Few declares that "there is no constitutional right to
an abortion," while ultimately concluding the Act is unconstitutional.
Flowing from natural law, privacy is inextricably woven into the very fabric of our
nation. Freedom and liberty, terms which necessarily embrace privacy, are the
cornerstones of our Constitution, laws, and civil society. Indeed, our Declaration of
Independence was forged through the promise of "Life, Liberty, and the pursuit of
Happiness." The Declaration of Independence para. 2 (U.S. 1776). The South
Carolina Constitution places no less importance on the people's broad right to
privacy, beginning with these words: "We, the people of the State of South Carolina,
in Convention assembled, grateful to God for our liberties, do ordain and establish
this Constitution for the preservation and perpetuation of the same." S.C. Const.
pmbl. 71
Unsurprisingly, the concept of the citizens' right to privacy has been recognized by
the United States Supreme Court on many occasions. See, e.g., Olmstead v. United
States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting) ("The makers of our
Constitution undertook to secure conditions favorable to the pursuit of
happiness. . . . [The Founders] conferred, as against the government, the right to be
let alone—the most comprehensive of rights and the right most valued by civilized
men."), majority overruled by Katz v. United States, 389 U.S. 347 (1967), and
Berger v. New York, 388 U.S. 41 (1967). As legal scholar Erwin Griswold succinctly
stated, "[T]he right to be let alone is the underlying principle of the Constitution's
Bill of Rights." Erwin Griswold, Dean, Harv. L. Sch., Address at Northwestern
University Law School (June 11, 1960); see also Erwin Griswold, The Right to be
Let Alone, 55 Nw. U. L. Rev. 216, 216–17 (1960).
For self-evident reasons, the Constitution of the United States makes no attempt to
identify the boundaries of the broad privacy right. While the concept of privacy
often finds its expression in our enumerated rights, under the federal Constitution, a
right of privacy can exist beyond the enumerated rights. Privacy, after all, is a
natural right. This is perhaps best understood by the decision of the Supreme Court
in Washington v. Glucksberg, 521 U.S. 702 (1997). In Glucksberg, it was reaffirmed
that the Due Process Clause of the Fourteenth Amendment guaranteed some rights
not mentioned in the Constitution. Id. at 719–20 (collecting cases). The Supreme
Court set forth a framework for determining whether an unenumerated asserted right
is truly a constitutional right. Id. at 720–21. In short, to acquire the status of a
constitutional right, "any such right must be 'deeply rooted in this [n]ation's history
71
The concept of natural law has become important in this case, at least insofar as
properly responding to the widely varying majority opinions.
and tradition' and 'implicit in the concept of ordered liberty.'" Dobbs, 142 S. Ct. at
2242 (quoting Glucksberg, 521 U.S. at 721).
The Supreme Court cautioned restraint in the recognition of unexpressed rights
deemed fundamental in a constitutional sense. Glucksberg, 521 U.S. at 720. Once
a claimed right is deemed a constitutional right, society through its citizenry loses
the ability to debate the issue and effect change through the democratic and
legislative process. Id. That was the consequence of the Roe decision, as for half a
century, only the opinions of judges mattered in defining the scope of the right to an
abortion. Excluding the people and leaving important societal policy issues in the
hands of only judges is anathema to the design of our constitutional republic and the
democratic process.72 It is for this reason that Glucksberg cautioned that courts are
to "exercise the utmost care whenever we are asked to break new ground in this field,
lest the liberty protected by the Due Process Clause be subtly transformed into the
policy preferences of members of the judiciary." State v. Dykes, 403 S.C. 499, 505–
06, 744 S.E.2d 505, 509 (2013) (alteration marks omitted) (quoting Glucksberg, 521
U.S. at 720). I am concerned that what Glucksberg warned against—judges
legislating based on personal policy preferences—has come to pass today.
The Glucksberg framework is a feature of separation of powers, for judges must
refrain from creating law. Lawmaking is a function constitutionally reserved to the
legislative branch. Beyond fundamental privacy interests, we need not decide today
whether a Glucksberg-type framework applies generally to the Due Process Clause
in the South Carolina Constitution. I would find that the Due Process Clause in the
South Carolina Constitution does allow for the judicial recognition of an
unenumerated right to the most basic forms of privacy, such as a person's medical
72
In fact, article I, section 1 of our state constitution provides that "[a]ll political
power is vested in and derived from the people only." Of course, the will of the
people is expressed in the policy judgments of their elected representatives. We
must never lose sight of this bedrock principle and its direct link to the familiar
constitutional mantra that the South Carolina legislature has plenary authority unless
our state constitution prohibits the exercise of that authority. See City of Rock Hill
v. Harris, 391 S.C. 149, 154, 705 S.E.2d 53, 55 (2011) ("The power of our state
legislature is plenary, and therefore, the authority given to the General Assembly by
our Constitution is a limitation of legislative power, not a grant. This means that the
General Assembly may enact any law not expressly, or by clear implication,
prohibited by the State or Federal Constitutions." (cleaned up)).
autonomy. Nonetheless, I would proceed cautiously in the judicial recognition of
unenumerated constitutional rights, for fear of encroachment into a legislative role.
B.
While the recognition of a general right to privacy is straightforward, difficulty may
arise in determining the scope of that right in a given setting. No person may
legitimately contend that he or she may do whatever he or she wants to do on the
basis of privacy. It depends entirely on what the person wants to do: context
matters. To be sure, virtually all laws infringe on the notion of privacy in the
abstract. However, in most every case, a legislative enactment's incidental invasion
of privacy is patently reasonable and lawful. The State's ability to prohibit or restrict
conduct turns on whether the State has a legitimate interest in the matter, generally,
where another person's interest is involved. For example, no rational person would
contend the State does not have the authority to enact laws criminalizing assault,
rape, theft, child abuse, drug trafficking, and the like. In these and so many other
areas, the power of the State to regulate and prohibit conduct is unquestioned. There
is not the slightest prospect that a court would contravene the will of the people, as
codified by their elected representatives, because the law amounts to an invasion of
privacy.
The same could be said of many other actions that may be the subject of differing
viewpoints, including bigamy, prostitution, gambling, and assisted suicide. In these
matters, a state may criminalize such conduct or legislatively permit it subject to
regulations and restrictions. However, no person has a constitutional right to engage
in such conduct. For example, Glucksberg involved a challenge to a law prohibiting
assisted suicide. 521 U.S. at 705–06. It was argued that the United States
Constitution granted a fundamental liberty interest in assisted suicide. Id. at 708.
The Glucksberg Court said "no": there was no federal constitutional right because
assisted suicide was neither "deeply rooted" in the nation's history nor "implicit in
the concept of ordered liberty." Id. at 706, 710, 721–28 (recognizing states had an
interest in "the protection and preservation of all human life"). Nevertheless,
assisted suicide is legal in a number of states, not because of a constitutional right
but because of the citizens of the states through legislative grace.
A second illustration may provide further understanding, particularly for the contrast
in which it stands to Glucksberg. In Stanley v. Georgia, the Supreme Court
confronted a Georgia state law that criminalized "mere private possession of obscene
matter." 394 U.S. 557, 558 n.1, 559 (1969). Stanley was arrested following the
discovery in his bedroom of three reels of eight-millimeter film, which depicted
pornographic material deemed obscene. Id. at 558. He was charged and convicted
in state court of possession of obscene material. Id. at 558–59. The Supreme Court
reversed, holding the effort to criminalize the mere possession of obscene material
violated "the First Amendment, as made applicable to the states by the Fourteenth
Amendment." Id. at 559. The supporting discussion is informative. The Supreme
Court made the important distinction between decisions and conduct that are truly
private and those that implicate other matters in which the state may have a
legitimate interest in protecting. Id. at 560–64. To be sure, a state has an "important
interest" in the "regulation of commercial distribution of obscene material." Id. at
563–64 (emphasis added). The Supreme Court recognized a number of precedents
upholding convictions against constitutional challenges for the "public distribution
of obscene materials." Id. at 567. However, Stanley's case was different, for
Stanley's alleged crime presented no nexus to distribution, nor did it impact any other
person or interest. Id. at 558, 567. Focusing on the invalidity of a state's claimed
interest in regulating the "mere private possession" of obscene material, the Supreme
Court referenced "traditional notions of individual liberty" and stated that citizens
have a fundamental right "to be free, except in very limited circumstances, from
unwanted governmental intrusions into one's privacy." Id. at 559, 560–61, 564–65,
568 (noting states do not have an interest in regulating obscenity when, in doing so,
"they reach into the privacy of one's own home").
The contrast between Glucksberg and Stanley illustrates the interplay between
privacy (or liberty) and the government's ability to regulate conduct. Where a state
is unable to point to a legitimate interest permitting it to prohibit or regulate conduct,
the privacy interest will prevail, as occurred in Stanley. Conversely, if a state is able
to articulate a valid interest in regulating certain activities, an infringement on a
person's privacy right may be permissible, as recognized in Glucksberg. In making
that determination, we return to the Glucksberg framework and the inquiry into
whether the purported privacy right is "deeply rooted" in our history and "implicit
in the concept of ordered liberty." 521 U.S. at 720–21.
As I turn to and consider the issue of abortion, two points are irrefutable. First, the
presence of the life of the unborn child is a legitimate state interest. Second, abortion
has always been restricted and regulated in South Carolina; as such, abortion is not
deeply rooted in our state's history. Cf. Dobbs, 142 S. Ct. at 2242–43, 2248–53
(observing similarly that abortion is not deeply rooted in the nation's history).
III.
With this background on the general right to privacy juxtaposed to the state's
legitimate interest to enact laws that regulate or restrict conduct where a legitimate
state interest is present, I come to Petitioners' claim that abortion is a fundamental
right under the South Carolina Constitution. Because Chief Justice Beatty relies on
selected United States Supreme Court decisions for his interpretation of the meaning
of the South Carolina Constitution privacy provision, I begin with a review of
abortion under federal law, followed by a look at the history of abortion regulation
in South Carolina. I will then examine Petitioners' claim of a constitutional right to
an abortion in the state constitution.
Prior to the 1970s, various Supreme Court decisions recognized a privacy interest in
the ability to obtain contraceptives,73 but no case had extended the concept of privacy
to abortion. Abortion stood by itself because it necessarily implicated a compelling
state interest: the protection of the life of the unborn child.
Nonetheless, in 1973, although abortion had always been restricted and regulated in
varying degrees among the states, the United States Supreme Court discovered a
right to abortion in the United States Constitution. See Roe, 410 U.S. at 153. This
alleged right to an abortion arose neither from some existing understanding of the
Bill of Rights nor from the Fourteenth Amendment's due process guarantee. Rather,
Roe explained, this previously unknown right arose from a "penumbra," derived
from Latin and meaning "almost a shadow." Id. at 152–53; Penumbra, Black's Law
Dictionary (11th ed. 2019). The Supreme Court later described Roe's analysis as
"unfocused," creating a right to abortion out of whole cloth, with none of the
objective guardrails that a due process framework ordinarily would require. See
Dobbs, 142 S. Ct. at 2245. Perhaps unsurprisingly then, the Roe decision—and
especially its nebulous formulation of a penumbral right to abortion—was the
subject of much criticism. See id. at 2270–71; Casey, 505 U.S. at 869. In fact, the
Supreme Court subsequently and pointedly remarked that Roe "was remarkably
loose in its treatment of the constitutional text." Dobbs, 142 S. Ct. at 2245.
Twenty years later, in Casey, the Supreme Court maintained the basic holding of
Roe but abandoned the much-maligned Roe privacy right formulation, providing
another rationale for the right to an abortion. 505 U.S. at 869, 874–79 (1992). In
doing so, "Casey threw out Roe's trimester scheme and substituted a new rule of
uncertain origin under which States were forbidden to adopt any regulation that
imposed an 'undue burden' on a woman's right to have an abortion." Dobbs, 142 S.
Ct. at 2242.
73
See Griswold v. Connecticut, 381 U.S. 479, 485 (1965) (finding a marital couple's
right to privacy was violated by a state's contraceptive ban); Eisenstadt v. Baird, 405
U.S. 438, 453–55 (1972) (expanding Griswold's reasoning to non-married people).
In the following years, and despite its fresh constitutional foundation, criticism of
the newly reformulated right to an abortion persisted. Many states throughout the
country, including South Carolina, continued to seek to impose limitations and
restrictions on abortions alongside the federal constitutional right. Eventually, thirty
years later, the United States Supreme Court agreed to revisit the issue in Dobbs.
Anticipating the overruling of Roe and Casey, South Carolina was among a number
of states that passed laws regulating abortions in a manner placing greater emphasis
on protecting the life of the unborn child. Specifically, South Carolina's response
was the passage of the Act, which is before us today.
Vindicating South Carolina's prescience, Dobbs in fact overruled Roe and Casey,
focusing on Casey's substantive due process rationale. 142 S. Ct. at 2242–43.
Relying on the framework set forth in Glucksberg, the Supreme Court recognized
that constitutional rights may exist "that are not mentioned in the Constitution, but
any such right must be 'deeply rooted in this [n]ation's history and tradition' and
'implicit in the concept of ordered liberty.'" Id. at 2242 (quoting Glucksberg, 521
U.S. at 721)). In noting the obvious—abortion does not satisfy the Glucksberg due
process standard—the Dobbs Court acknowledged that abortion is "fundamentally
different" from true Fourteenth Amendment liberty interests because abortion
involves an unborn human being. Id. at 2243. No one can rationally dispute the
critically important fact that states have a real and legitimate interest in protecting
the life of an unborn child. Dobbs held that "[i]t is time to heed the Constitution and
return the issue of abortion to the people's elected representatives." Id.
IV.
The South Carolina General Assembly seeks to protect the life of an unborn child in
the Act. The law bans abortions after the detection of a fetal heartbeat, yet the law
provides exceptions for rape, incest, fetal anomalies, and the life and physical health
of the mother. See generally S.C. Code Ann. § 44-41-680 (Supp. 2022). According
to data in the record, fetal heartbeat activity may be detected at approximately six to
eight weeks into the pregnancy. In considering the Act, the legislature made findings
in support of its policy decision to restrict most abortions at the time the fetal
heartbeat is detected. Those legislative findings, based on medical information,
include "a fetal heartbeat is a key medical predictor that an unborn human individual
will reach live birth." Act. No. 1, 2021 S.C. Acts 2, 3. The legislature relied on
medical data reflecting a greater than 95% likelihood of reaching live birth upon
detection of the fetal heartbeat. Based on the information it relied on, the legislature
expressed its policy judgment in noting that "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." Id.This Court granted a temporary injunction on August 17, 2022, enjoining
enforcement of the Act pending a resolution on the merits. We recognized the
"plenary authority of the legislature to legislate and make public policy decisions."
We further expressly "offer[ed] no opinion on the likelihood of success on the
merits." 74
V.
My analysis begins with three features of constitutional interpretation, which are
referenced in the majority opinions but not honored. First, the General Assembly's
authority to legislate is plenary: the South Carolina Constitution grants power to the
legislature to "enact any act it desires to pass, if such legislation is not expressly
prohibited by the Constitution of this state, or the Constitution of the United States."
Heslep v. State Highway Dep't, 171 S.C. 186, 193, 171 S.E. 913, 915 (1933); see
also Hampton v. Haley, 403 S.C. 395, 403, 743 S.E.2d 258, 262 (2013) ("[T]he
General Assembly has plenary power over all legislative matters unless limited by
some constitutional provision."); Fripp v. Coburn, 101 S.C. 312, 317, 85 S.E. 774,
775 (1915) ("[T]he Legislature may enact any law not prohibited by the
Constitution.").
Second, statutes are presumed constitutional. That presumption is a weighty one
and can be overcome only by a showing of unconstitutionality beyond a reasonable
doubt. See Joytime Distribs. & Amusement Co. v. State, 338 S.C. 634, 640, 528
S.E.2d 647, 650 (1999) ("A legislative enactment will be declared unconstitutional
only when its invalidity appears so clearly as to leave no room for reasonable doubt
that it violates a provision of the constitution.").
Third, Petitioners bring a facial challenge to the Act. With a facial challenge,
Petitioners must demonstrate the Act is unconstitutional "in all its applications."
Richardson ex rel. 15th Cir. Drug Enf't Unit v. $20,771.00 in U.S. Currency, 437
S.C. 290, 297, 878 S.E.2d 868, 871 (2022); State v. Legg, 416 S.C. 9, 13–14, 785
S.E.2d 369, 371 (2016) ("A facial challenge is 'the most difficult to mount
74
It is important to recognize the Act was not in effect upon its passage, for section
44-41-620 provides if Roe is overruled or modified and states are authorized to
regulate abortion, "then the Attorney General may apply to the pertinent state or
federal court" for a declaration that the Act is constitutional and for a "lifting [of] an
injunction against the enforcement of" the Act. S.C. Code Ann. § 44-41-620(B)
(Supp. 2022).
successfully,' as it requires the challenger show the legislation at issue is
unconstitutional in all its applications." (alteration marks omitted) (quoting City of
L.A. v. Patel, 576 U.S. 409, 415 (2015)).
A.
I begin with Petitioners' due process challenge, for I find that if there exists a right
to abortion, that right must be established as a due process liberty interest in article
I, section 3 of the South Carolina Constitution. Thus, applying the Glucksberg
framework to our state constitution, Petitioners must establish that abortion is deeply
rooted in South Carolina history and that abortion is implicit in the concept of
ordered liberty.
South Carolina has long regulated the practice of abortions. Abortion was originally
recognized in our state as a common law crime. The common law criminalized
abortion at the point of quickening, that is, the moment when the mother detects
movement of the fetus in the womb. As Dobbs stated,
At that time, there were no scientific methods for detecting pregnancy
in its early stages, and thus, as one court put it in 1872: "Until the period
of quickening there is no evidence of life; and whatever may be said of
the fœtus, the law has fixed upon this period of gestation as the time
when the child is endowed with life" because "fœtal movements are the
first clearly marked and well defined evidences of life."
142 S. Ct. at 2251–52 (cleaned up) (quoting Evans v. People, 49 N.Y. 86, 90 (1872)).
And as Dobbs recognized, while the common law apparently did not criminalize pre-
quickening abortions, "it does not follow . . . that abortion was a legal right." Id. at
2250.
Scientific knowledge, of course, has increased significantly through the years, for
medical knowledge now establishes "evidences of life" early on in the pregnancy.
The detection of a fetal heartbeat approximately six to eight weeks into the
pregnancy is an example. That is the precise kind of information considered in the
legislative fact-finding process that was relied on in crafting the Act. Nevertheless,
the lead majority opinion relies on this Court's 1948 decision in State v. Steadman
as the final word on when life begins, as if advances in medical science cannot be
considered by subsequent legislatures. See 214 S.C. 1, 51 S.E.2d 91 (1948).
Steadman noted that "[f]rom the earliest enactment of statutes designating the
offense under discussion as 'abortion,' and until the present day, a distinction
between the condition of the child before and after quickening has been
recognized . . . ." Id. at 8, 51 S.E.2d at 93 (emphasis added). The "present day" in
Steadman was seventy-five years ago. Much has happened since 1948, and I know
of no legal authority that forces our legislature to make policy decisions and pass
legislation concerning abortion based on the universe of knowledge and
understanding in 1948. 75
Petitioners' due process claim fails. Abortion is not "deeply rooted" in our state's
history, and it could not be reasonably suggested that abortion is "implicit in the
concept of ordered liberty." To the contrary, it is the regulation and restriction of
abortion that is deeply rooted in our state's history. Even during the past fifty years,
under Roe and Casey, many state legislatures throughout the nation enacted laws
placing limits and restriction on abortions. Granted, some of those state legislative
efforts were struck down because of the then-existing federal constitutional right,
yet those persistent legislative efforts foreclose any argument that abortion became
deeply rooted in the American culture in recent decades. What is deeply rooted in
our state and nation over the past half-century is the complete lack of consensus on
the abortion issue. Following Dobbs, I would hold there is no due process privacy
or liberty right to an abortion under the South Carolina Constitution.
B.
Petitioners' primary argument arises from our constitutional provision that prohibits
"unreasonable invasions of privacy." The provision provides:
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, and no warrants shall issue
but upon probable cause, supported by oath or affirmation, and
particularly describing the place to be searched, the person or thing to
be seized, and the information to be obtained.
S.C. Const. art. I, § 10.
75
I find ironic the lead majority opinion's willingness to bind this Court to outdated
opinions and concepts such as those espoused in Steadman. The incongruity is
pointed when comparing the lead majority's reliance on the historic legal impact of
quickening with its concurrent view that our state constitution must be interpreted in
accordance with modern societal mores (rather than as it was intended at the time it
was written).
The term "privacy" is ambiguous. Cf. Griswold, 381 U.S. at 509 (Black, J.,
dissenting) ("'Privacy' is a broad, abstract and ambiguous concept which can easily
be shrunken in meaning but which can also, on the other hand, easily be interpreted
as a constitutional ban against many things other than searches and seizures."). To
be sure, it is not clear that the term "privacy" in article I, section 10 includes a right
to abortion. Chief Justice Beatty acknowledges this ambiguity in the very first
paragraph of his concurrence: "While all agree our government generally cannot
search our homes—the pinnacle of privacy—without a warrant, the outer bounds of
privacy are still debated." (Emphasis added). It should be clear from the five
separate writings from every member of this Court that there is no unequivocal
consensus on the meaning of the phrase "unreasonable invasions of privacy" in
article I, section 10. I would not by judicial fiat foreclose the people, through their
elected representatives, from the debate.
Certainly, this Court's various proposed interpretations of the phrase "unreasonable
invasions of privacy" indicate there is some question—or ambiguity—as to the
meaning of the privacy provision. In the face of such ambiguity, it is bedrock law
that a court must examine the origins of a constitutional provision to ascertain and
give effect to the intent of its framers. Harris, 391 S.C. at 153, 705 S.E.2d at 55("[T]he Court applies rules similar to those relating to the construction of statutes to
arrive at the ultimate goal of deriving the intent of those who adopted [a
constitutional amendment]." (cleaned up)); Miller v. Farr, 243 S.C. 342, 346–47,
133 S.E.2d 838, 841 (1963) ("Hence, when construing constitutional amendments,
the Court applies rules similar to those relating to the construction of statutes, in its
effort to determine the intent of its framers and of the people who adopted it."). Thus,
we must determine the reach of the privacy provision by carefully examining the
work of the amendment's framers. See Harris, 391 S.C. at 153, 705 S.E.2d at 54–
55 ("When this Court is called to interpret our Constitution, it is guided by the
principle that both the citizenry and the General Assembly have worked to create the
governing law. Therefore, the Court will look at the ordinary and popular meaning
of the words used, keeping in mind that amendments to our Constitution become
effective largely through the legislative process." (cleaned up)).
It is Petitioners' position that the privacy provision is broad and extends beyond the
search and seizure context to include a right to abortion. From the privacy provision,
Petitioners extrapolate that a pregnant woman has a fundamental privacy right to
abort her unborn child after detection of the fetal heartbeat without interference from
the state. I disagree. As I explain further below, there is no language in article I,
section 10 of the South Carolina Constitution that supports an interpretation of a
privacy right that would encompass a right to abortion. The "unreasonable invasion
of privacy" language is part of the search and seizure clause and is not a standalone
provision. Indeed, the privacy provision is combined with the "unreasonable
searches and seizures" language with no comma, semicolon, or other break. This
contextual placement of the privacy provision stands in contrast to other rights in
our state constitution, which are standalone provisions or separated by, for example,
commas or semicolons.76 Moreover, there is nothing in our case law that construes
the privacy provision so expansively that would permit a finding of a right to
abortion.
The provision in article I, section 10 of the South Carolina Constitution prohibiting
"unreasonable invasions of privacy" was the result of a 1971 amendment to our
constitution. After carefully examining the history related to the adoption of the
privacy-provision amendment, as well as case law, I am firmly convinced the
privacy provision does not confer a right to an abortion.
More specifically, in 1971, the citizens of our state approved major changes to the
South Carolina Constitution of 1895. Those amendments were the result of a lengthy
process that was initiated by the General Assembly in the mid-1960s. At the time,
the General Assembly commissioned a study and broad review of the 1895
Constitution. The study committee formed by the legislature became known as the
West Committee. The work of the West Committee culminated in substantial
revisions to the 1895 Constitution. One amendment to the state constitution was the
addition of the privacy provision. While the work of the West Committee is certainly
not dispositive in ascertaining the complete history and meaning of the constitutional
amendments approved in 1971, until today, this Court has looked to the West
Committee as some evidence of the meaning behind the 1971 constitutional
amendments. See, e.g., Sloan v. Sanford, 357 S.C. 431, 436–37, 593 S.E.2d 470,
473 (2004); Diamonds v. Greenville Cnty., 325 S.C. 154, 158–59, 480 S.E.2d 718,
720 (1997); Hosp. Ass'n of S.C., Inc. v. Cnty. of Charleston, 320 S.C. 219, 224–25,
464 S.E.2d 113, 117 (1995). However, the majority opinions today cast aside as
"irrelevant" the work of the West Committee.
76
See S.C. Const. art. I, § 2 (setting forth multiple rights separated by semicolon);
id. art. I, § 3 (same but using repeated commas and conjunctions); id. art. I, § 4
(same); id. art. I, § 12 (same, using commas); id. art. I, § 13 (same, using separate
sentences and subsections); id. art. I, § 14 (same, using separate sentences or
semicolons); id. art. I, § 15 (same, using separate sentences and repeated commas
and conjunctions); id. art. I, § 20 (same, using separate sentences); id. art. I, § 22
(same, using semicolons, commas, and repeated conjunctions).
The lead majority opinion provides a history lesson of the discrimination women
have endured in South Carolina. I take no exception to recounting the history of
women's rights to vote and serve on juries in the state. My concern is with the
majority's effort to link the history lesson to this case. The West Committee is
disparaged because it was "initially composed of nine men and not a single woman."
This attack on the West Committee is unfair. I do not believe the West Committee
is maligned because of the lack of gender diversity in the committee's initial
composition; I believe the West Committee's failure to provide Petitioners (and the
majority) any evidence linking the privacy provision to abortion is the reason for the
attack by the majority. If lack of gender diversity were the real reason, I point to the
absence of similar criticism regarding the United States Supreme Court that decided
Roe, which was also "composed of nine men and not a single woman."
Chief Justice Beatty similarly avoids the work of the West Committee. The Chief
Justice states that the committee "notes, minutes of the committee meetings, [and]
statements made during the meeting . . . are . . . unavailing in our interpretation of
the breadth of the privacy rights addressed in article I, section 10." What is availing,
according to the Chief Justice, in discovering the meaning of the state constitutional
privacy provision are selected privacy and abortion cases from the United States
Supreme Court, obviously interpreting the federal Constitution. The Chief Justice
concludes that the work of the state-focused West Committee is irrelevant.
Likewise, Justice Few opines "the work of the West Committee is irrelevant to an
analysis" of the meaning of the privacy provision. Justice Few asserts that it is
necessary to consider the deliberative process leading to a constitutional amendment
only when the language of the constitutional provision is "ambiguous." He believes
the term "privacy" is "broad . . . [but] clear as to its scope." It is then suggested that
there are no limits to privacy because "the State's limitations to the scope of the
'unreasonable invasions of privacy' provision were never presented to the voters who
approved the provision in the 1970 general election." The same point is repeated:
"There was no mention on the ballot of any limitations on that language." The
implication is obvious: because abortion was not expressly excluded when the
amendment was adopted, abortion is necessarily included in the privacy provision.
This, we are told by Justice Few, was the intent of the "citizenry" who voted to adopt
the privacy provision. That has never been the framework for determining the reach
and extent of constitutional rights. I reject the notion that absent "limitations" in the
constitutional text, there is no legislative authority to act. This proposed analytical
approach turns upside down the South Carolina Constitution, which grants plenary
authority to the legislature. Moreover, the case before the Court requires us to
determine an answer to a discrete question: does the privacy provision include a right
to an abortion? The question is not whether the framers expressly excluded abortion
from the reach of the privacy provision.
In answering the question before us, we must ascertain and give effect to the
intention of those responsible for drafting the provision and the voters who adopted
it. I know of no other example in the history of this Court where it has thumbed its
nose at the rigid requirement that the Court must ascertain and give effect to the
intent of those responsible for a constitutional provision or legislative enactment.
I will honor our precedents by considering the history underlying the adoption of the
privacy provision. This review will shed light on what the "framers" intended and,
significantly, whether one may reasonably conclude that a right to abortion is
included as a privacy right. I will first review the work of the West Committee, and
in turn, I will examine the consideration by the legislature of the committee's
recommendations and then the manner of how the privacy provision was presented
to the voters.77
C.
It was in the context of the broad review of our constitution that the perceived need
for an explicit privacy provision arose. The idea for a privacy provision was initially
raised at the West Committee's working session in September 1967. The genesis of
the privacy provision related solely to modern technology and the ever-increasing
volume and acquisition of data and personal information. The record of the
September 1967 meeting framed the issue as follows: "A democratic society is
peculiarly receptive to the development of constitutional norms that will protect
individual privacy from the omnipresent ear of modern surveillance equipment." 78
The West Committee considered the privacy provision as an amendment to the South
Carolina Constitution's search and seizure provision. The committee decided that the
provision "should be revised to take care of the invasion of privacy through modern
77
I commend the parties and amici for excellent briefs. I have borrowed from the
briefs, especially as they concern the history surrounding the adoption of the privacy
provision.
78
Memorandum No. 2 from Robert H. Stoudemire, Staff Consultant, W. Comm., to
the S.C. Const. Revision Comm. app. A (Sept. 1967), in 3 Proceedings of the
Committee to Make a Study of the Constitution of South Carolina (1895) (1967)
[hereinafter Proceedings of the West Committee].
electronic devices. All committee members agreed that this further protection was
needed."79 Yet the record reveals the West Committee was concerned that adding a
right to privacy "would impede the task of the law enforcement officers," so the
committee sought input from then-Attorney General Daniel R. McLeod. 80
Attorney General McLeod responded by letter to the committee. The Attorney
General favored adding a right to privacy to the constitutional section involving
search and seizures, acknowledging that the committee's proposed revision "relate[d]
to an interception of communication which [was] generally done by electronic
means."81 Attorney General McLeod also expressed concern "that massive
collection of data by governmental agencies may afford a basis for concluding that
the citizens' right of privacy can be jeopardized."82 He further reported:
We are considering now the establishment of a system of data
processing which would make readily available vast amounts of
information relating to the private affairs of citizens. Unless thought is
given to protection of the individual's privacy within the bank of
information stored in the computers, there can be a potential invasion
of that individual's right of privacy.[83]
The Attorney General concluded his remarks by noting that technology is
everchanging: "Admittedly, the field is new and complex and the problems cannot
definitely be foreseen, but there is a definite trend toward securing individual privacy
in the field of data processing."84
The letter from Attorney General McLeod generated additional discussion from the
79
Comm. to Make a Study of the Const. of S.C. of 1895, Minutes of Committee
Meeting 6 (Sept. 15, 1967) [hereinafter West Committee Minutes], in 1 Proceedings
of the West Committee.
80
Id. at 6–7.
81
Letter from Daniel R. McLeod, S.C. Att'y Gen., to Robert H. Stoudemire, Staff
Consultant, W. Comm. (Oct. 2, 1967), 1967 WL 12658, at *1.
82
Id.83
Id.84
Id.West Committee. In studying the Attorney General's comments, the West
Committee concluded that the Attorney General "agreed that this matter of secrecy
is very grave, not only from electronic devices, but also he requests that [the]
wording be wide enough to take care of data processing banks." 85 The work of the
committee moved forward with additional meetings and detailed discussions related
to a privacy-provision amendment.
The focus of the discussions regarding the privacy provision concerned matters of
protection of personal information, circumstances that would allow law enforcement
access to such information, probable cause, and search warrants. As the committee
was concluding its work, one committee member remarked, "This is getting down
to your mass computer data. It's getting to all electronic stuff."86
I state the obvious—the matter of abortion was never discussed or even mentioned
by the West Committee. On one hand, it may seem plausible to suggest abortion
was understandably not mentioned because the subject of abortion may not have
been prominent in the public discourse at the time. Yet it is Petitioners who bring
to our attention that:
[I]n the years leading up to South Carolina's adoption of the privacy
provision, efforts were well underway in other states to push for
recognition of a privacy right that protected the abortion decision. As
one national news article reported in 1969, there were ten ongoing
challenges to abortion laws across the country at that time, including on
grounds of limiting "the freedom of choice in a 'constitutionally
protected area, the area of private morality.'"
Pet'rs' Br. at 15 (citations omitted). Petitioners go further and spotlight that the
matter of abortion was front and center in South Carolina at that same time, as the
legislature amended the abortion statutes in 1970. Given the presence of the abortion
debate at the time of the debate and adoption of the privacy provision, the complete
85
West Committee Minutes 3 (Oct. 6, 1967), in 1 Proceedings of the West
Committee.
86
West Committee Minutes 7 (Nov. 19, 1968), in 3 Proceedings of the West
Committee.
absence of any consideration of abortion by the West Committee and legislature is
significant.87
In April of 1969, the West Committee approved its final report and forwarded it to
the General Assembly. The committee's report recommended adding a new,
standalone sentence to the search and seizure provision of the state constitution: "The
right of the people to be secure from unreasonable invasions of privacy shall not be
violated."88 It explained its reasoning:
This additional statement is designed to protect the citizen from
improper use of electronic devices, computer data banks, etc. Since it is
almost impossible to describe all of the devices which exist or which
may be perfected in the future, the Committee recommends only a
broad statement on policy, leaving the details to be regulated by law
and court decisions.[89]
D.
I now turn to the General Assembly's consideration of the West Committee's
recommendations. The legislature agreed in principle with the committee's privacy
recommendation. But rather than adding a new sentence to our state constitution, as
the committee proposed, the legislature merged the privacy provision into the
existing constitutional provision:
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, and no warrants shall issue
87
The committee members often engaged in free-flowing discussions. In the
brainstorming discussions, there were occasional references to the concept of
privacy beyond electronic surveillance. In an open discussion format, that is
understandable. The deliberations and work of the committee, however, always
returned to the electronic surveillance concern. That was the focus of the committee.
I additionally note in none of the free-flowing discussions was the topic of abortion
ever mentioned. Significantly, the topic of abortion appears nowhere in the final
report of the West Committee. See Final Report of the Committee to Make a Study
of the South Carolina Constitution of 1895 (1969).
88
Id. at 14.
89
Id. at 15.
but upon probable cause, supported by oath or affirmation, and
particularly describing the place to be searched and the person or thing
to be seized, and the information to be obtained.
S.C. Const. art. I, § 10 (emphasis added to the 1970 additions).
The legislature's treatment of the issue is revealing. First, the legislature rejected the
committee's recommendation for a standalone privacy provision. The legislature
opted instead to fold the concept of privacy into the existing search and seizure
clause. Second, to ensure that the privacy concept was linked to the situation that
concerned the committee—that is, electronic surveillance—the legislature added the
final phrase requiring warrants to identify "the information to be obtained" to ensure
there was not an "unreasonable invasion of privacy" when the government sought to
intercept an individual's electronic communications or review an individual's
electronic data. As with the West Committee, there is no evidence even remotely
linking consideration by the legislature of the privacy provision to abortion.
E.
I finally consider the manner in which the proposed privacy amendment was
presented to the citizens of South Carolina. All proposed amendments to the 1895
Constitution were submitted to the voters and approved. The privacy-provision
amendment was referenced by the legislature on the ballot as merely "searches and
seizures." This characterization as "searches and seizures" refutes any suggestion
that the voters had any reason to believe that the amendment to the searches and
seizures clause included a right to abortion.
In reviewing the history leading to the adoption of the privacy provision, the critical
point Respondents rely on, with which I agree, is that the intent behind the privacy-
provision amendment never wavered. There was not the slightest hint that the
contemplated privacy provision would have any application to the abortion issue.
See Miller, 243 S.C. at 346–47, 133 S.E.2d at 841 (setting forth the well-established
principle that when a court construes a constitutional amendment, it must determine
the intent of both the amendment's framers and the citizens who adopted it). The
laws of South Carolina restricted abortions at the time, and there was no suggestion
that the privacy amendment would affect the state's abortion laws. In fact, as
Petitioners point out, while the legislature was considering the West Committee's
final report, it was simultaneously amending the abortion statutes. In short, none of
the amendment's framers ever intended the privacy provision to affect the matter of
abortion or the state's longstanding policy of regulating abortion.
F.
In terms of our judicial decisions issued around the time of adoption of the privacy
provision, the case of State v. Lawrence is instructive. 261 S.C. 18, 198 S.E.2d 253(1973). In 1972, Kenneth Lawrence, a South Carolina physician, was convicted of
performing an abortion in violation of a state statute. Id. at 19, 198 S.E.2d at 254.
On appeal in 1973, the same year Roe was decided, Dr. Lawrence argued the state
statute was unconstitutional as a result of the Roe decision. This Court agreed, found
the state statute unconstitutional, and vacated Dr. Lawrence's conviction. Id. at 22,
198 S.E.2d at 255. In Lawrence, there was no reference to or argument that the then-
newly minted state constitutional privacy provision applied.
The following year, in 1974, the legislature codified the holding in Roe. See Act No.
1215, 1974 S.C. Acts 2837 (codified as amended in scattered sections of S.C. Code
Ann. § 44-41-10 to -80 (2018 & Supp. 2022)). The codification of Roe commands
the conclusion that the legislature harbored not the slightest belief that the privacy
amendment granted a right to abortion. We must conclude that at the time of
adoption of the privacy provision, and until at least 1974, the privacy provision did
not grant a right to abortion. Yet today, a majority of this Court has discovered a
right to abortion in the privacy provision.
G.
Does this review of the origins of the privacy provision necessarily mean that the
provision has no potential applicability beyond electronic devices and the modern
technology concern? I believe the answer is, "no." There can be no question that
the word "privacy," when removed from its contextual setting, is broad. We must,
however, ascertain the meaning of a constitutional provision in its proper context.
What persuades me to allow for the privacy provision to have a reach beyond the
search and seizure context is our case law. Our case law has not consistently
interpreted the privacy provision so narrowly as to preclude application beyond the
search and seizure context, although most of our cases concerning the privacy
provision involved a nexus to searches and seizures.90
90
See State v. Counts, 413 S.C. 153, 172, 776 S.E.2d 59, 69–70 (2015) (while
acknowledging the propriety under the Fourth Amendment of the law enforcement
"knock and talk" technique, the Court invoked the state constitutional privacy
provision and concluded that "[b]ecause the privacy interests in one's home are the
most sacrosanct, . . . law enforcement must have reasonable suspicion of illegal
activity at a targeted residence prior to approaching the residence" and conducting a
Singleton v. State is the one case seized upon by the Court majority where this Court
decided a non-search and seizure case in part on the basis of the constitutional
privacy provision. 313 S.C. 75, 88–89, 437 S.E.2d 53, 60–61 (1993) (holding the
federal Due Process Clause and the state constitutional right to privacy "would be
violated if the State were to sanction forced medication solely to facilitate execution"
of a death row inmate). Justice James would overrule Singleton in part and find the
state constitutional privacy provision is limited to search and seizure cases. I do not
lightly dismiss Justice James's view that the state constitutional privacy provision
has no application beyond the search and seizure setting. My learned colleague's
position is a defensible position.
knock and talk); Dykes, 403 S.C. at 503, 508 & n.7, 744 S.E.2d at 507, 510 & n.7
(while holding the "initial mandatory imposition of satellite monitoring"
constitutional for certain sex offenders, the Court also found the "complete absence
of any opportunity for judicial review to assess a risk of re-offending . . . [was]
arbitrary and [could not] be deemed rationally related to the legislature's stated
purpose of protecting the public from those with a high risk of re-offending," and
cited to the state constitutional privacy provision as "additional[] support"); State v.
Weaver, 374 S.C. 313, 321–22, 649 S.E.2d 479, 483 (2007) (holding the warrantless
search of defendant's vehicle under the automobile exception did not violate the state
constitutional privacy provision); State v. Forrester, 343 S.C. 637, 644, 541 S.E.2d
837, 841 (2001) (in a search and seizure case challenging the consent-to-search
finding, the Court stated the "privacy provision imbedded in the search and seizure
provision . . . creates a distinct privacy right that applies both within and outside the
search and seizure context[,]" yet the Court rejected the argument that "our state's
right to privacy provision [] require[d] police officers to inform citizens that they
have the right to refuse consensual searches"). In my list of South Carolina cases
concerning the privacy provision, I do not include the case of State v. Blackwell, 420
S.C. 127, 801 S.E.2d 713 (2017). Two of the three majority opinions here cite
Blackwell. The parentheticals included in Justice Hearn's and Justice Few's opinions
claim the case was decided on the basis of the privacy provision. This claim is not
true. As Justice James points out, Blackwell contains no discussion of the state
constitutional right to privacy, and the case was not decided on constitutional right
to privacy grounds.
Nonetheless, while a close question is presented, I believe the better course is to
leave our precedents intact.91 I point out that in none of our cases have Respondents
argued for the constrained view of the privacy provision they advance here. In
fairness to Respondents, however, we have never been called on to address the
privacy provision juxtaposed to a legislative enactment and in a setting so far
removed from the search and seizure context. In short, we have never been asked to
consider whether the privacy provision includes a right to abortion.
While I adhere to our precedents, that in no manner gives rise to a right to abortion.
Given the history associated with the adoption of the privacy-provision amendment,
I conclude the privacy provision does not include a right to abortion. Yet I
acknowledge that Petitioners are correct in their overarching assertion that a person
generally possesses a fundamental right of autonomy over his or her medical care.
In this regard, a person is generally free to make his or her own healthcare decisions,
as well as to choose what medicines and healthcare procedures will be accepted or
rejected. These liberty or privacy interests most logically arise from the Due Process
Clause in article I, section 3, not the privacy provision in article I, section 10. Of
great importance, these personal decisions are made free from any countervailing
interests.92
The majority opinions predictably seize on this deeply rooted and deeply understood
principle of personal autonomy in healthcare decisions and immediately conflate
abortion with those decisions. However, the law separates abortion from other
healthcare decisions, as abortion presents an additional and critically important
competing consideration, one that a state indisputably has a legitimate interest in
advancing: protecting the life of the unborn child. See Dobbs, 142 S. Ct. at 2243.
Compare Stanley, 394 U.S. at 559, 560–61, 564, 565, 568 (explaining when the state
does not have a legitimate interest in regulating a particular course of action, citizens
have a fundamental right to be free from unwarranted governmental intrusions into
their privacy), with Glucksberg, 521 U.S. at 710, 721–28 (finding a state had a
legitimate interest in protecting and preserving public life and that, therefore, a
91
If nothing else, Singleton and the other cases mentioning article I, section 10 are
distinguishable because they did not involve an interest in protecting the life of an
unborn child.
92
These personal decisions, completely removed from a countervailing state interest,
are best understood as a privacy right flowing from natural law.
regulation restricting the availability of assisted suicide did not run afoul of the
federal Due Process Clause).
For that reason, as made clear in Dobbs, "abortion is fundamentally different" from
other rights recognized by the Supreme Court. 142 S. Ct. at 2243. The matter of
abortion involves not only the pregnant mother, but the potential life of the unborn
child. The State unquestionably has a legitimate interest in making policy
determinations that affect both interests, and the General Assembly has done so in
the Act. There is nothing in the privacy provision or its history, including our case
law, that allows for the provision to be stretched so far as to grant a right to abortion.
It is wholly improper to excise the phrase "unreasonable invasions of privacy" from
article I, section 10 and give it the boundless, amorphous meaning desired by
Petitioners. More to the point, when reviewing a legislative enactment, rules of
constitutional interpretation do not permit courts to cherry-pick broad language from
its contextual moorings for the purpose of reaching a judicially preferred outcome.
The expansive interpretation of the privacy clause urged by Petitioners would simply
turn the members of this Court into super-legislators, as a judge's personal
preferences would be elevated to having constitutional status.
The reach of the privacy provision is constrained by its history and our precedents.
I return once again to the Glucksberg due process framework. If a proposed privacy
right is not "deeply rooted" in our state's history and implicit in the concept of
ordered liberty, then the Court should stay its hand and honor the policy decision
made by the citizens through their duly elected representatives. That is my path
today.
The South Carolina privacy provision does not grant a right to abortion free from
the state's authority to impose restrictions designed to further the state's legitimate
interest in protecting the lives of the unborn. Where the legislature has rendered a
constitutional policy judgment, judicial power is constrained. Because the privacy
provision in article I, section 10 does not grant a right of abortion, I would reject the
privacy provision challenge.
Before moving to the next section, I respond to Justice Few's criticism that "the
majority of [my] discussion really has nothing to do with this case." Respectfully, I
do not believe that is true, and I certainly do not overlook the fact the state
constitution has a privacy provision. It is Justice James and I who examine the actual
history of the privacy provision. It is Justice James and I who are firmly convinced
that the history of the privacy provision is a prerequisite to understanding the reach
and meaning of the privacy provision. I believe that discussion, combined with an
understanding of the due process privacy interest, has a great deal to do with this
case.
Justice Few and I have a fundamental difference of opinion on the reach and meaning
of the state constitutional privacy provision. Justice Few views the privacy provision
expansively; I view the privacy provision in line with its understood meaning at the
time it was adopted, along with caselaw interpreting the provision. Yet Justice Few
and I agree on a person's general privacy interest in his or her medical autonomy. It
is the source of that privacy interest where we part company. Justice Few finds the
source of the privacy interest in article I, section 10—the privacy provision. I believe
this privacy interest in healthcare decisions is embedded in the due process concept
of liberty from our nation's and state's foundings. That is why I find the source of
that interest in article I, section 3—due process. This position aligns with my view
that the most basic forms of privacy arise from natural law.
If Justice Few is correct and the source of a person's fundamental privacy interests
comes from the article I, section 10 privacy provision, then presumably the citizens
of our state had no such privacy rights before the adoption of article I, section 10 in
1971. Does anyone really believe the citizens of South Carolina had no fundamental
privacy rights prior to 1971? Of course our citizens had such privacy rights long
before 1971, and due process was (and is) the source of those deeply rooted privacy
interests. The majority opinions take different routes, but they end up in the same
place, with all giving an expansive and essentially boundless meaning to the article
I, section 10 privacy provision. The impact of the majority opinions is to minimize
the role of the legislature in making policy decisions, leaving those policy decisions
to this Court.
It is because of my strong disagreement with the majority opinions on this central
point that I have been required to discuss at length the history of privacy interests
arising from natural law and the role of the liberty interest in the due process clause.
Critically important, a due process framework serves as a check on judicial activism.
A due process framework—if properly grounded in the notions of "deeply rooted"
and "implicit in the concept of ordered liberty"—ensures objective guardrails, which
in turn minimizes the prospect of a judge making a legislative policy decision
disguised as law. With the majority's adoption of an expansive privacy provision,
objective guardrails and judicial restraint are cast aside. Respectful of Justice Few's
contrary opinion, I believe my analysis and discussion have a great deal to do with
this case.
VI.
A.
In any event, were I to go further and test the Act against article I, section 10,
Petitioners' claim would nevertheless fail. The touchstone for the privacy provision
is reasonableness. The constitution protects against unreasonable invasions of
privacy. In a host of circumstances—too numerous to mention—the State has a
legitimate interest to legislate in ways that affect a person's privacy. In those
situations, as here, we say the invasion of privacy is not unreasonable. Because there
is no fundamental right to abortion and strict scrutiny review does not apply, a court
may invalidate the legislation only if the legislative determination is found to be
wholly arbitrary. Where the legislative policy determination is rationally related to
its intended purpose, we must uphold that policy determination.
The majority opinions question the legitimacy and accuracy of the South Carolina
General Assembly's fact-finding and evidence-gathering in support of the Act. I find
this critical review of the legislative fact-finding process especially troubling and an
affront to the rule of law. In Gonzales v. Carhart, the Supreme Court upheld the
federal partial-birth abortion ban even where "[t]he evidence presented in the trial
courts and before Congress demonstrate[d] both sides ha[d] medical support for their
position." 550 U.S. 124, 161 (2007). The Supreme Court determined that
disagreement in the medical community did not render a ban on partial-birth
abortions facially invalid where the regulation was rational and in pursuit of
legitimate ends. Id. at 161–64.
Our legislature was likewise presented with "evidence" from both sides of the
debate. We, too, have been deluged with medical (and non-medical) opinions from
both sides. Those who support Planned Parenthood characterize the significance of
"embryonic cardiac activity" as a "scientifically arbitrary point in pregnancy." 93
Additionally, it is contended that "the idea of protecting embryonic development or
fetuses from the onset of fetal cardiac activity [is] arbitrary [and] medically
unjustified."94 Conversely, others in the medical community corroborate the
legislature's finding that "'contemporary medical research' reveal[s] that over 95%
93
Br. for Am. Coll. of Obstetricians et al. as Amici Curiae Supp. Pet'rs at 12–13.
94
Id. at 13.
of those with a detectable fetal heartbeat will eventually be born, absent some outside
interference like abortion." 95
Granted, amici on both sides quickly segue from their respective medical arguments
to policy-based arguments. This resort to non-medical justifications should be an
even stronger command to this Court that it not usurp the legislative prerogative.
The Supreme Court has cautioned against judicial entanglement in the legislative
policy-making process. See Gonzales, 550 U.S. at 163 ("The Court has given state
and federal legislatures wide discretion to pass legislation in areas where there is
medical and scientific uncertainty. . . . 'When Congress undertakes to act in areas
fraught with medical and scientific uncertainties, legislative options must be
especially broad . . . .'" (internal citations omitted) (quoting Marshall v. United
States, 414 U.S. 417, 427 (1974))). A court should not turn its back on legislative
deference merely because the issue is abortion, for "[m]edical uncertainty does not
foreclose the exercise of legislative power in the abortion context any more than it
does in other contexts." Id. at 164.
The information in the record (presented by Petitioners) shows that slightly less than
half of abortions in South Carolina in 2020 and 2021 were performed prior to the
six-week mark. Based on data compiled by the South Carolina Department of Health
and Environmental Control (SCDHEC), 44.5% of "abortions by probable
postfertilization age" were performed at "6 weeks or less." For 2021, 47.9% of
"abortions by probable postfertilization age" were performed at "6 weeks or less."
In terms of raw numbers, 2,434 unborn children were aborted in South Carolina in
2020 at six weeks or less in the pregnancy; the number of aborted unborn children
at six weeks or less in the pregnancy for 2021 was 3,007. The evidence in the record
demonstrates that many abortions will continue to be performed under the Act.
Nevertheless, the Court majority repudiates the legislature and tells us the Act does
not allow for an informed choice.
It was contended at oral argument that the "six week" data supplied by SCDHEC
really should be considered as "eight week" data to account for the two weeks pre-
fertilization in a woman's menstrual cycle. In other words, Petitioners argue the data
actually shows slightly less than half of abortions occur before the eighth week in a
pregnancy. If that is the case, then Petitioners have not provided any data on the
95
Br. for Am. Ass'n of Pro-Life OBGYNs & Dr. Christine Hemphill as Amici Curiae
Supp. Resp'ts at 2.
number or percentage of abortions occurring at or prior to the six-week mark. It is
here where we see the majority opinions come to the rescue.
The majority opinions come to the same conclusion—the Act is unconstitutional—
but through different paths. Justice Hearn's lead majority opinion includes
quotations from a scientific study that is not part of the record of evidence presented
by the parties, claiming she does so only because Chief Justice Roberts cited to (but
did not quote) the study in Dobbs. Chief Justice Beatty follows Justice Hearn's lead
in searching for favorable information outside the record. A reader of today's
opinions who is interested in law and not politics should thoughtfully reflect on the
significance of members of this Court embarking on a legislative fact-finding
mission. I repeat: Justice Hearn's and Chief Justice Beatty's opinions contain the
results of their own research conducted after oral argument, citing to online articles
that they believe allow them to find the Act unconstitutional.
The parties in this case are represented by extremely skilled and competent counsel.
They are responsible for creating the record of evidence, and they have done so. It
is breathtaking that members of this Court would unilaterally do their own fact-
finding and cite to "evidence" outside the record in an effort to bolster their desired
result. Respondents will read our decision today and learn that a duly enacted law
was struck down because supreme court justices resorted to their own legislative
fact-finding.
On the other hand, Justice Few's concurring opinion deals directly with the failure
of Petitioners to present evidence: "Planned Parenthood failed to present any
evidence on this factual question." This is followed by a statement that should be
the basis for the majority dismissing Planned Parenthood's complaint: "Planned
Parenthood's failure could be fatal to its constitutional challenge." But of course,
Petitioners are not held responsible for failing to present evidence on what the
majority deems the key factual question. Although all parties refer to the Act as a
"six-week ban," Justice Few recharacterizes the Act as a "four-week ban" and argues
the "State cannot point to a single fact the General Assembly considered that could
support a factual determination that such a choice meaningfully exists under the
Fetal Heartbeat Act."96 This makes a mockery of our law that legislative enactments
96
Justice Few is critical of the Governor, House Speaker, Senate President, and
Attorney General for objecting to the request made to provide more evidence after
the case was already heard. The State officials objected primarily on separation of
power grounds, as well as reminding this Court that Petitioners had the burden of
proof to establish the unconstitutionality of the Act. Justice Few describes the State's
are presumed constitutional, and the opponent must establish unconstitutionality
beyond a reasonable doubt.
B.
If banning abortions after the detection of a fetal heartbeat is unconstitutional, where
then would the majority of this Court draw the line? Although I disagree with Justice
Hearn's lead majority opinion, it is clear and straightforward. The lead majority
opinion refers approvingly to Chief Justice Roberts's concurring opinion in Dobbs
in which "he would have upheld Mississippi's 15-week deadline." Opinion of Hearn,
J., at n.13; see Dobbs, 142 S. Ct. at 2310–11 (Roberts, C.J., concurring). "Chief
Justice Roberts acknowledged that fifteen weeks provides an 'adequate opportunity'
to decide whether to have an abortion . . . ." Opinion of Hearn, J., at n.13 (citing
Dobbs, 142 S. Ct. at 2315 (Roberts, C.J., concurring)). What is the significance of
a fifteen-week ban? The answer comes from the evidence supplied by Petitioners.
We learn from an affidavit in the record submitted by one of Petitioners' medical
experts that in 2020, "more than 99 percent [of abortions] occurred before
approximately 15 weeks." According to SCDHEC, 99.5 percent of all abortions in
2020 occurred at or before thirteen weeks of pregnancy. 97 We thus learn that a
fifteen-week ban is not much of a ban. And if that is the case, then how is the State's
declared interest in protecting the life of the unborn child honored? The answer is
obvious: the policy of the legislature to protect the life of the unborn child means
nothing.
Justice Few opines that "the twenty-week restriction on a woman's opportunity to
have an abortion is not—as a matter of law—an unreasonable invasion of privacy."
Yet we also learn from him that "a total ban on abortion—despite a complete
invasion of a pregnant woman's right to privacy . . . [—]might be reasonable." If the
six-week ban under the Act is unconstitutional, then how could a total ban possibly
response as "essentially boast[ing] to this Court that the General Assembly did not
even consider the question" of when "a pregnant woman can know she is pregnant."
This characterization of the response of these State officials is patently unfair. The
State also cited to my dissent in Abbeville II, but Justice Few dismisses that
argument, finding "the Abbeville cases have nothing to do with this case." I
respectfully and strongly disagree.
97
The very few non-elective abortions that are necessary to protect the life of the
mother are exempted from the ban and may occur later in the pregnancy. See Act
No. 1, 2021 S.C. Acts 2, 6–7 (codified at S.C. Code Ann. § 44-41-690 (Supp. 2022)).
be constitutional? The answer, we are told, lies in the suggestion that the State could
simply find "that the life of every human being begins at conception" 98 and remove
the feature of "informed choice," thereby removing a pregnant woman's
constitutional privacy right. This is not how constitutional rights work. It is
axiomatic that finding the Act unconstitutional in violation of the privacy provision
requires, in the first instance, the presence of a constitutional right arising from
article I, section 10. Simply put, constitutional rights arise from the constitution.
Legislatures do not statutorily create or revoke constitutional rights. If Petitioners
have established a constitutional right to privacy, which the Court majority finds
they have, then the legislature could not remove that constitutional right with the
legislative pen.
In a similar vein, the majority opinions make much of the fact that one of the
legislative findings for the Act states, "[I]n 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." Act No. 1, 2021 S.C. Acts 2, 3. Justice Hearn's
opinion and especially Justice Few's opinion seize upon the "informed choice"
language and read it out of context. The majority opinions seemingly find that,
because of the "informed choice" language, the legislature is powerless to ban
abortions until it is established that all pregnant women know they are pregnant and
additional time is provided for consideration of an abortion. Such a reading is highly
flawed as it fails to give effect to the clear legislative intent underlying the Act and
imposes a subjective standard on when, precisely, a pregnant woman has had the
opportunity to make an "informed choice." 99
98
This life-begins-at-conception language essentially mirrors the legislature's stated
policy in the Act: "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." Act No. 1, 2021 S.C. Acts 2, 3.
99
Such a focus also fails to honor a foundational principle of constitutional
interpretation. To mount a successful facial challenge of the Act, Petitioners must
prove—and the Court must conclude—that the Act is unconstitutional "in all its
applications." See Richardson, 437 S.C. at 297–98, 878 S.E.2d at 871–72 (emphasis
added); Legg, 416 S.C. at 13–14, 785 S.E.2d at 371 (quoting Patel, 576 U.S. at 415).
The majority opinions instead flip this analysis on its head, focusing on whether the
Act unconstitutionally deprives any woman (or a significant portion of women) of
her (their) right to make an informed choice. If all women are not deprived of their
No one may reasonably doubt the Act's manifest legislative intent is to give priority
to preserving and protecting human life after the detection of a fetal heartbeat. The
majority's seizing on part of the informed choice finding, and the interpretation it
gives, essentially voids the purpose of the entire Act. I believe the legislature
intended to ban abortion (save the exceptions provided for in the Act) upon the
detection of a fetal heartbeat—an objective standard. However, assuming the
majority's insistence of an ambiguity in the legislative findings is correct, the result
is at worst a non-sequitur in an otherwise crystal-clear expression of legislative
intent. Under such circumstances, the answer is not to seize upon part of the
informed choice language and rush to gut what is widely conceded to be the purpose
of the Act. See Kiriakides v. United Artists Commc'ns, Inc., 312 S.C. 271, 275, 440
S.E.2d 364, 366 (1994) ("All rules of statutory construction are subservient to the
one that the legislative intent must prevail if it can be reasonably discovered in the
language used, and that language must be construed in the light of the intended
purpose of the statute. However plain the ordinary meaning of the words used in a
statute may be, the courts will reject that meaning when to accept it would lead to a
result so plainly absurd that it could not possibly have been intended by the
[l]egislature or would defeat the plain legislative intention. If possible, the court will
construe the statute so as to escape the absurdity and carry the intention into effect."
(internal citations omitted)). 100
No one may properly dispute the legitimate interest of the State in protecting the life
of the unborn child. It necessarily follows that the State may enact laws to recognize
and protect that legitimate interest. The Act is rationally related to its legitimate end.
The fact that the policy decision of the legislature in the Act is "fairly debatable"
requires this Court to uphold the Act. See Gonzales, 550 U.S. at 163 (collecting
cases). There is no legal basis to hold the Act is arbitrary and unlawful; a judicial
determination to the contrary is merely a personal preference disguised as a legal
judgment.
Consequently, were I to reach the "unreasonable invasion of privacy" step, I would
hold the Act—drawing a line at the approximate six- to eight-week mark while
ability to make an informed choice, the Act necessarily must survive a facial
challenge.
100
I also note the fetal heartbeat law is not unique to South Carolina. Many states
have adopted it or some variation of it, including Ohio and Georgia. As I reiterate
throughout my dissent, unless the South Carolina Constitution mandates a right to
abortion, which it does not, the policy decision of our legislature should be upheld.
providing exceptions for rape, incest, fetal anomalies, and the life and physical
health of the mother—is within the legislature's province and not an "unreasonable
invasion of privacy."
VII.
I do recognize that some other states have taken a different view on the issue of
abortion. The lead majority opinion cites to case law from other states where a state
constitutional provision was interpreted in line with Petitioners' desired outcome. I,
however, do not believe we should be bound by what other states have done. I offer
five reasons why I place little weight in what other states do. First, the cases cited
in the lead majority opinion were decided post-Roe but pre-Dobbs, when the states'
authority to legislate in abortion matters was very limited. Second, some states have
permitted abortions even prior to the Roe decision in 1973. In Valley Hospital
Association v. Mat-Su Coalition for Choice, the Supreme Court of Alaska observed
that "[a]bortion has been permitted in Alaska since 1970, when the state legislature
passed the current abortion law." 948 P.2d 963, 965 (Alaska 1997). Third, in those
cases where a state constitutional provision is interpreted, the history of the provision
in other states does not mirror the history and process of adopting the privacy
provision in our article I, section 10 search and seizure section. I would be more
inclined to find authority from other states persuasive if there were any evidence
linking the history of our state constitutional privacy provision to abortion—but
there is none. Fourth, South Carolina has always legislatively restricted and
regulated abortions. Unlike some other states, South Carolina policy has always
been one that attempts to impose a high level of protection for the life of the unborn
child.
This leads to my fifth and final reason why I assign little weight to case law from
other states. A central theme in Dobbs is federalism. The issue of abortion was
returned to each of the states. Each state must determine its own way on abortion.
For states like Alaska that have longstanding constitutional, statutory, and case law
precedent favoring abortion, the decision has been made. South Carolina is not
Alaska, Florida, Minnesota, Montana, or Tennessee. South Carolina is a sovereign
state, and in our history, we have not the slightest hint of a precedent of any kind in
support of a state constitutional right to abortion. As a judge, I am not a legislator
or policy maker. The policy decision must be made by the citizens of South
Carolina. Our citizens have spoken through the South Carolina legislature in the
passage of the Act.
VIII.
With no law supporting a right to abortion, we are left with a thinly disguised plea
to interpret the privacy provision in line with Petitioners' desired outcome. As a
Court, it is our solemn duty to resolve legal disputes based on the rule of law. A
central feature of our responsibility is to adjudicate the controversy within the
framework of the law and not legislate by elevating personal policy preferences to
legal status. This is a fundamental principle and limitation on the exercise of judicial
power. The Court majority violates this principle today, and in doing so, I believe
the Court oversteps its bounds.
State v. Counts discussed the role of the Court in interpreting the constitutional
privacy provision:
As previously stated, the South Carolina Constitution provides citizens
an express right to privacy. S.C. Const. art. I, § 10. But, other than the
use of the word "unreasonable" to modify this right, there are no
parameters concerning the right or a definition of what constitutes
"unreasonable invasions of privacy." As a result, legal scholars
interpreting the legislative history of this constitutional provision have
concluded that "the drafters were depending upon the state judiciary to
construct a precise meaning of this phrase." Jaclyn L. McAndrew, Who
Has More Privacy?: State v. Brown and Its Effect on South Carolina
Criminal Defendants, 62 S.C. L. Rev. 671, 694 (2011). As will be
discussed, our state jurisprudence is scant on the right to privacy. Thus,
this case presents us with an opportunity to further define this state
constitutional right.
413 S.C. at 167, 776 S.E.2d at 67.
This statement in Counts is true in all constitutional challenges—this Court is the
arbiter of what the state constitution means. Yet the Counts Court's reference to
judicial interpretation must not be transformed into a judicial license to legislate by
elevating a judge's personal preferences to constitutional status. There is a reason
"our state jurisprudence is scant on the right to privacy." See id. (emphasis added).
Our Court has been careful not to transform this provision embedded in our search
and seizure clause into a judicial vending machine for members of this Court to
create rights to coincide with their personal preferences. I strongly reject Petitioners'
invitation to view the privacy provision as malleable, with its reach to be subjectively
determined by the preferences of unelected judges. "[I]t is not within the power or
province of members of the Judiciary to advance their own personal wishes or to
implement their own personal notions of fairness under the guise of constitutional
interpretation." Abbeville II, 410 S.C. at 683, 767 S.E.2d at 191–92 (Kittredge, J.,
dissenting) (quoting Hornbeck v. Somerset Cnty. Bd. of Educ., 458 A.2d 758, 790
(Md. 1983)).
IX.
Turning to Petitioners' remaining challenges, I would dismiss Petitioners' equal
protection claim. See Dobbs, 142 S. Ct. at 2245–46 (holding that "a State's
regulation of abortion is not a sex-based classification and is thus not subject to the
'heightened scrutiny' that applies to such classifications"); State v. Wright, 349 S.C.
310, 313, 563 S.E.2d 311, 312 (2002) (finding equal protection is not implicated
when a law "realistically reflects the fact that the sexes are not similarly situated in
certain circumstances"). Concerning the vagueness challenge, the Act is sufficiently
clear to inform those affected of its provisions. Petitioners' briefs and the briefs of
supporting amici set forth in detail the provisions of the Act; there is no vagueness
or uncertainty as to what the Act allows and forbids. I would summarily dismiss
Petitioners' remaining claims as manifestly without merit. Because I would not
invalidate any provision in the Act, I would not reach the question of severability.
X.
The matter of abortion involves not only the pregnant mother but the potential life
of the unborn child. The state unquestionably has a legitimate interest in making
policy determinations that affect both interests. Legislative policy determinations
invariably include competing considerations. The competing considerations may be
compelling and difficult, even seemingly "irreconcilable" as Justice Kavanaugh
opined. Yet the law must be determined. As for me, because the state constitution
does not mandate otherwise, I would honor the policy decision made by the General
Assembly. The Act reflects the balance struck by the legislature between the
important, competing interests of the mother, the State, and the unborn. Our
legislature elected to give meaningful consideration—and not turn a blind eye—to
the lives of unborn children. The fact that the legislature struck the balance contrary
to the desires of Petitioners in no manner renders the policy determination
unreasonable or otherwise unlawful.
Abortion presents an important moral and policy issue. The citizens, through their
duly elected representatives, have spoken. The South Carolina legislature, not this
Court, should determine matters of policy.
Because Petitioners have failed to establish the Act is unconstitutional, I would
declare the Act constitutional and dismiss the complaint.
I dissent.
JAMES, J., concurring in part.
JUSTICE JAMES: Like Justice Kittredge, I would uphold the Act. However, I
disagree with Justice Kittredge on one point: I would hold the privacy provision in
article I, section 10 provides citizens with heightened Fourth Amendment
protections, especially protection from unreasonable law enforcement use of
electronic devices to search and seize information and communications. It goes no
further. Therefore, I concur in part with Justice Kittredge's dissent, and I respectfully
dissent from Justice Hearn's lead opinion, Chief Justice Beatty's concurrence, and
Justice Few's concurrence (the three of which I will sometimes collectively refer to
as "the majority"). I write separately to explain my reasoning.
Bodily autonomy is an intensely personal issue for South Carolinians and
justifiably so. In particular, a woman's right to have an abortion is a subject of great
debate and differing personal opinions. These personal opinions are deserving of
consideration and understanding. However, when I put aside any personal
preferences and review the issue under South Carolina law, I conclude a citizen's
right to be free from unreasonable invasions of privacy does not extend beyond the
context of searches and seizures. Unlike the majority, I believe the intent of the
West Committee, the General Assembly, and the people should factor into our
decision in this case. As for South Carolina caselaw citing article I, section 10, I
would overrule or modify the few decisions that directly or impliedly extend the
privacy provision beyond the context of searches and seizures. As for caselaw from
other jurisdictions cited in the lead opinion, we are not bound by those decisions,
many of which are misinterpreted in the lead opinion.
I. Our Role
"We do not sit as a superlegislature to second guess the wisdom or folly of
decisions of the General Assembly." Keyserling v. Beasley, 322 S.C. 83, 86, 470
S.E.2d 100, 101 (1996). The General Assembly has plenary power to make policy
decisions "unless limited by some constitutional provision." Hampton v. Haley, 403
S.C. 395, 403, 743 S.E.2d 258, 262 (2013) (stating the General Assembly has "the
sole prerogative to make policy decisions"). Therefore, our role in this case is
limited to determining whether the Act violates the South Carolina Constitution. We
cannot find the Act unconstitutional simply because we would have written it
differently or because we would not have written it at all.
"[T]he fundamental purpose in construing [a constitutional] amendment is to
ascertain and give effect to the intent of its framers and of the people who adopted
it; and the court must keep in mind the object sought to be accomplished, and the
evils sought to be remedied." Heinitsh v. Floyd, 130 S.C. 434, 438, 126 S.E. 336,
337 (1925). We stated in Reese v. Talbert,
When the language of a constitutional amendment is of doubtful import,
the object of judicial inquiry as to its meaning is to ascertain the intent
of its framers and of the people who adopted it. And in attempting to
attain that object, the courts may consider the history of the times in
which the amendment was framed, the object sought to be
accomplished, and legislative interpretation of its provisions.
237 S.C. 356, 358, 117 S.E.2d 375, 376-77 (1960) (citations omitted).
As I will explain, the scope of article I, section 10 is ambiguous, or "of
doubtful import." Id. Therefore, we must consider the history of the late 1960s and
early 1970s in South Carolina; the intent of the framers of article I, section 10; and
the intent of the people who adopted article I, section 10.
II. Article I, Section 10
Article I, section 10 provides:
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, and no warrants shall issue
but upon probable cause, supported by oath or affirmation, and
particularly describing the place to be searched, the person or thing to
be seized, and the information to be obtained.
S.C. Const. art. I, § 10 (emphasis added to show the 1971 amendment).
The course to the amendment was charted in 1966, when the General
Assembly adopted a resolution establishing a committee to study the South Carolina
Constitution of 1895 and recommend possible amendments. See Final Report of the
Committee to Make a Study of the South Carolina Constitution of 1895, at 3 (1969)
[hereinafter Final Report]. Part of the committee's tremendous task included
studying South Carolina's version of the Fourth Amendment to the United States
Constitution. Of course, the Fourth Amendment addresses the citizenry's right to be
free from unreasonable searches and seizures. See U.S. Const. amend. IV. The
committee's work concluded in 1969 with a report to the General Assembly. See
Final Report, supra, at 3. Over time, the committee became known as the West
Committee (Committee) because it was chaired by Senator John C. West, who was
elected Lieutenant Governor during the Committee's period of study.
III. We Must Consider the Intent of the Framers and the People
The Committee minutes and Final Report demonstrate the Committee's
remarkable foresight in formulating its intent behind the proposed privacy
amendment. From its first meeting, the Committee focused on the potential evils
occasioned by the intrusion of modern technology into people's lives, especially by
law enforcement. Members were cognizant of the ramifications of electronic
interception of communications, mass data collection, and the like, and they aimed
to draft an amendment that would protect the privacy of citizens within the construct
of law enforcement and administrative overreach in these areas. Citing various
reasons, the majority argues we should not consider the intent of the framers or the
people who adopted the privacy provision. I will respond to those arguments now.
A.
In support of his argument that we should not consider the Committee's intent
in drafting the privacy provision, Justice Few states in his concurrence that "the word
'privacy'—though broad—is clear as to its scope: it includes all forms of privacy."
This characterization does nothing but beg the question of what that scope is. "The
wording of the amendment throws no light on this question, and therefore the court
can consider the conditions under which the amendment was passed." Covington v.
McInnis, 144 S.C. 391, 394, 142 S.E. 650, 651 (1928); see Reese, 237 S.C. at 358,
117 S.E.2d at 376-77 ("When the language of a constitutional amendment is of
doubtful import, the object of judicial inquiry as to its meaning is to ascertain the
intent of its framers and of the people who adopted it. And in attempting to attain
that object, the courts may consider the history of the times in which the amendment
was framed, the object sought to be accomplished, and legislative interpretation of
its provisions." (citations omitted)).
Similarly, Justice Few argues the word "privacy," as used in article I, section
10, "means the full panoply of privacy rights Americans have come to enjoy over
the history of our Nation." That characterization, while certainly broad, is hardly
clear. Justice Few does not attempt to identify what privacy particulars are included
in the "full panoply." 101 This strained characterization reflects substantial doubt as
101
Certainly, "the full panoply of privacy rights Americans have come to enjoy over
the history of our Nation" does not include a woman's right to have an abortion,
because that would mean the right to an abortion is a right "Americans have come
to enjoy over the history of our Nation." This "full panoply" characterization implies
to what rights are included in the privacy provision. Because the scope of the right
to privacy set forth in article I, section 10 is "of doubtful import," we must look to
the Committee's detailed work as a starting point for ascertaining the intent of the
framers.
B.
Interestingly, the lead opinion states, "Respondents' argument that the West
Committee notes control our decision as to the scope of our privacy provision
completely ignores, and arguably perpetuates, the societal landscape of the time [the
amendment was adopted]." According to the lead opinion, that "landscape" included
the fact that "[t]hroughout its work from 1966-1969, a total of fourteen people served
on the West Committee, only one of whom was a woman." The lead opinion states,
"Given this historical backdrop, we decline to limit our review of article I, section
10 to what the West Committee members may have thought at the time." Thus, the
lead opinion diminishes the importance of the West Committee because it was
dominated by males.
I will accept for the moment the lead opinion's premise that the male-
dominated Committee did not have the foresight or inclination to draft a privacy
provision that encompassed the notion of bodily autonomy or a woman's right to
have an abortion. Similarly, there were no women among the 170 members of the
1969-70 General Assembly that submitted article I, section 10 to the voters. South
Carolina During the 1900s – The General Assembly, Carolana,
https://www.carolana.com/SC/1900s/sc_1900s_98th_general_assembly_members.
html (last visited Dec. 5, 2022). We must therefore assume the 1969-70 General
Assembly, like the Committee, had neither the foresight nor the inclination to draft
and submit to the voters a privacy provision that encompassed the notion of bodily
autonomy (or a woman's right to have an abortion). We certainly cannot go back
fifty years in time and draft out of thin air a privacy provision encompassing features
the male-dominated Committee and General Assembly did not envision. That leaves
us with an amendment containing a privacy provision that serves, at most, to enhance
our pre-existing Fourth Amendment right against unreasonable searches and
seizures.
a woman's right to have an abortion is "deeply rooted" in the history of our nation.
Because Justice Few summarily rejects Petitioners' due process challenge, I suspect
he also rejects this "deeply rooted" premise.
Even as it argues the intent of the West Committee is meaningless, the lead
opinion travels to Montana and cites Armstrong v. State, in which the Montana
Supreme Court struck down as unconstitutional a statute prohibiting certified
physician assistants from performing pre-viability abortions. 989 P.2d 364, 384
(Mont. 1999). The Armstrong court held "the procreative autonomy component of
personal autonomy is protected by Montana's constitutional right of individual
privacy . . . ." Id. at 379. However, the lead opinion ignores the fact that the
Armstrong court relied in no small part upon the work of Montana's 1972
Constitutional Convention—a close cousin to a body such as the Committee. The
notes from the convention show the delegates specifically intended the privacy right
to be expansive, "encompass[ing] more than just traditional search and seizure" and
protecting citizens from "governmental practices that interfere with the autonomy of
each individual to make decisions in matters generally considered private." Id. at
373. Surprisingly, the lead opinion almost entirely discounts the intent of the
Committee but cites with approval a decision that relies greatly upon the intent of a
similar body in Montana.
The lead opinion cites Valley Hospital Association, Inc. v. Mat-Su Coalition
for Choice, in which the Alaska Supreme Court addressed a hospital's policy
prohibiting abortions unless one of three exceptions applied. 948 P.2d 963, 965
(Alaska 1997). Apparently, the Valley Hospital court was unable to consider the
history of Alaska's constitutional right to privacy because its "legislative history
[was] insufficient to limit the general language of the privacy amendment." Id. at
969. Here, we have sufficient legislative history, if only the majority would choose
to look at it.
The lead opinion also cites the Florida Supreme Court's decision in In re T.W.,
551 So. 2d 1186 (Fla. 1989). The Florida Constitution provides, "Every natural
person has the right to be let alone and free from governmental intrusion into his
private life except as otherwise provided herein." Fla. Const. art. I, § 23. That
provision on its face is markedly more specific than the privacy provision in article
I, section 10. In In re T.W., the court cited its decision in Winfield v. Division of
Pari-Mutuel Wagering, 477 So. 2d 544 (Fla. 1985). The Winfield court did consider
the intent of the drafters of article I, section 23 and noted the privacy provision "was
intentionally phrased in strong terms." Id. at 548.
The lead opinion also looks to Minnesota for support, citing Women of
Minnesota v. Gomez, 542 N.W.2d 17 (Minn. 1995). The Minnesota Constitution did
not contain an express privacy provision, so the Gomez court looked to three
constitutional provisions to determine whether a woman has the right to have an
abortion. These provisions were, in pertinent part, the right to not be "deprived of
any of the rights or privileges secured to any citizen" (Minn. Const. art. I, § 2); the
right to not "be deprived of life, liberty or property without due process of law"
(Minn. Const. art. I, § 7); and "[t]he right of the people to be secure in their persons,
houses, papers, and effects against unreasonable searches and seizures." (Minn.
Const. art. I, § 10). Much like the United States Supreme Court in Roe v. Wade, the
Gomez court seized upon these provisions and held "the right of privacy under the
Minnesota Constitution encompasses a woman's right to decide to terminate her
pregnancy." 542 N.W.2d at 27. Because Roe has been overruled, such an approach
is of no import.
Finally, the lead opinion cites Planned Parenthood of Middle Tennessee v.
Sundquist, in which the Tennessee Supreme Court held "a woman's right to terminate
her pregnancy is a vital part of the right to privacy guaranteed by the Tennessee
Constitution." 38 S.W.3d 1, 4 (Tenn. 2000). It is difficult to tell which constitutional
provisions the Sundquist court based its decision upon, but it is clear this post-Roe
and post-Casey decision arose from the court's conclusion that "a woman's right to
legally terminate her pregnancy is fundamental." Sundquist, 38 S.W.3d at 15. There
was no specific privacy right upon which the court relied. Instead, the court seemed
to look at numerous nonspecific provisions in the Tennessee Constitution and, much
like the United States Supreme Court in Roe, detect a fundamental right to privacy
within the shadows of those provisions; therefore, the decision is not of much
importance to us today. The Sundquist dissent/concurrence indicated the majority
may have pulled a liberty interest out of thin air, stating, "Any such protection of
'liberty' by the judiciary, however, must be accompanied by something more than a
mere declaration of the fact[.]" Id. at 26 (Barker, J., concurring in part and dissenting
in part).
C.
The Chief Justice states that "[a]t the outset," how the right to privacy is set
forth in the text of article I, section 10 is instructive as to whether we should consider
the Committee notes. He points to the use of a semicolon in the heading of article I,
section 10 ("Searches and seizures; invasions of privacy") and claims the placement
of that heading reflects the General Assembly's intent to separate the two topics. We
have held that "[f]or interpretative purposes, the title of a statute and heading of a
section are of use only when they shed light on some ambiguous word or phrase and
as tools available for resolution of doubt, but they cannot undo or limit what the text
makes plain." Garner v. Houck, 312 S.C. 481, 486, 435 S.E.2d 847, 849 (1993). I
agree with the Chief Justice that we should look outside the text to ascertain the
meaning of an ambiguous phrase—here, the scope of the privacy provision. But if
we resort to considering a semicolon in the heading of article I, section 10, we ought
to look at the Committee notes.
In sum, the majority veers as far as possible away from the work of the West
Committee; otherwise, they would look full in the inconvenient face of the
unmistakable intent of the West Committee and the General Assembly. They
relegate the history of the drafting and approval of the privacy amendment to little
more than trivia.
IV. The Committee's Meeting Minutes and Final Report
Justice Few challenges that if we do consider the history of the intent behind
the Committee's work, "we should consider it carefully and in its entirety" and not
engage in "cherry-picking out-of-context language that appears to support the result
one wants[.]" I agree, but we must also realize that the final version of the privacy
provision submitted to the General Assembly is of great importance, as it was the
culmination of the Committee's debate of the privacy provision.
A.
Because it was the final product of the Committee's discussion and debate of
the privacy provision, I will begin with the Final Report. The entire report consists
of 147 pages, while the Committee's comment on the proposed privacy provision
constitutes roughly one page. The comment is as follows:
Section J. Searches and seizures. The Committee recommends that
the historic provision on searches and seizures be retained. In addition,
the Committee recommends that the citizen be given constitutional
protection from an unreasonable invasion of privacy by the State. This
additional statement is designed to protect the citizen from improper
use of electronic devices, computer databanks, etc. Since it is almost
impossible to describe all of the devices which exist or which may be
perfected in the future, the Committee recommends only a broad
statement on policy, leaving the details to be regulated by law and court
decisions.
Final Report, supra, at 15 (emphasis added).
The Committee's focus was clear. The Committee acknowledged it was
"almost impossible to describe those devices which exist or which may be perfected
in the future[.]" Id. Therefore, it recommended the privacy amendment be broad,
with "the details to be regulated by law and court decisions." Id. All of the words
in this comment—sans cherry-picking—are purely in the context of electronic
"devices." There is no mention of bodily autonomy, a full panoply of rights, or a
woman's right to have an abortion. However, the lead opinion would have us believe
a woman's right to have an abortion is embraced in article I, section 10. Justice Few
maintains "the details" referred to in the comment implicate undefined and broad-
based privacy considerations, including a woman's right to have an abortion.
However, a simple reading of the comment shows "the details" refer back to "devices
which exist or which may be perfected in the future," not broad-based privacy
considerations.
B.
Because Justice Few does so, I will discuss the minutes of each Committee
meeting in which the privacy provision was debated.
1. September 15, 1967
As in the Final Report, the meeting minutes show the Committee was focused
on the privacy dangers posed by electronic surveillance, electronic devices,
computer databanks, and the like. During their initial meetings on the subject,
Committee members agreed the then-existing constitutional provision on searches
and seizures "should be revised to take care of the invasion of privacy through
modern electronic devices." Minutes of Committee Meeting 6 (Sept. 15, 1967), in
1 Proceedings of the Committee to Make a Study of the Constitution of South
Carolina (1895). Rightly or wrongly, there was no mention of broad-based privacy
rights.
In their brief, the House Speaker and Senate President refer to a letter written
by Attorney General Daniel R. McLeod to West Committee Staff Consultant Robert
H. Stoudemire. The Speaker and President argue the letter shows General McLeod
(1) contemplated a privacy provision that would guard against invasions of privacy
in the form of electronic interception of communications, mass data collection by
government agencies, and computer data banks and (2) noted a trend toward
securing individual privacy in the field of data processing. I agree.
The background of the letter is helpful. During the September 15, 1967
meeting, the Committee requested Mr. Stoudemire contact General McLeod to
gauge his impressions about the scope of a provision protecting against unreasonable
invasions of privacy. General McLeod responded to Mr. Stoudemire by letter dated
October 2, 1967. In the first paragraph, General McLeod acknowledged that the
proposed privacy provision "relate[d] to interception of communication which is
generally done by electronic means." Letter from Daniel R. McLeod, S.C. Att'y
Gen., to Robert H. Stoudemire, Staff Consultant, Comm. to Make a Study of the S.C.
Const. (Oct. 2, 1967), 1967 WL 12658, at *1. He then noted an "additional factor
[that] may be taken into consideration" is the "protection of privacy in areas such as
information gotten through data processing." Id. The letter as a whole speaks solely
in terms of "securing individual privacy in the field of data processing" and in terms
of protecting against intrusions into privacy occasioned by (1) interception of
communication and information by electronic means, (2) mass collection of data, (3)
unguarded income tax and health information, and (4) unguarded information stored
in computers. Id. General McLeod stated, "The need to formulate a decision as to
what information should or should not be made available under a multitude of
circumstances is clearly dictated if privacy is to fulfill its function in our democratic
society." Id. He also stated, "Unless thought is given to protection of the individual's
privacy within the bank of information stored in the computers, there can be a
potential invasion of that individual's right of privacy." Id. He explained, "[T]here
is a definite trend toward securing individual privacy in the field of data processing."
Id.General McLeod ended his comments on these specific points by suggesting
the privacy provision include "general phraseology such as 'protection against
unreasonable invasion of the individual's right of privacy.'" Id. Read in full context,
General McLeod's input on the subject of privacy was confined to the protection of
information that could be obtained by unreasonably invasive means. He did not
suggest any language supporting the protection of a "full panoply" of privacy rights.
2. October 6, 1967
The Committee's next discussion of the privacy provision took place on
October 6, 1967, when it reviewed General McLeod's letter in detail. See Minutes
of Committee Meeting 3-6, 8-10 (Oct. 6, 1967), in 1 Proceedings of the Committee
to Make a Study of the Constitution of South Carolina (1895). There was no mention
of any privacy concern other than electronic devices, data processing banks,
interception of communications, and the constantly changing world of technology.
The minutes from that day reflect long and considered discussion of a possible
amendment protecting against unreasonable invasions of privacy, and the
Committee members' comments remained completely in line with matters of
electronic intrusion.
Justice Few recites an exchange between Mr. Stoudemire and Committee
member William D. Workman during this meeting. When Mr. Stoudemire was
reviewing General McLeod's letter, he commented on the possibility of the Tax
Commission improperly releasing income tax information and asked whether that
would give an aggrieved party a cause of action against the offending person or
entity. Mr. Workman responded, "What our goal is, is to insert into the Constitution
that which would give an aggrieved individual a cause of action if the authorities get
out of hand in invasion of privacy by whatever means." Id. at 5. Justice Few claims
"[t]his dialogue supports a broader interpretation of the 'unreasonable invasions of
privacy' provision than the State proposes." I disagree. The dialogue was a small
portion of the October 6 debate, and the minutes of that day reflect the Committee's
continued focus upon protecting citizens against unreasonable searches and seizures,
primarily in the area of data collection and electronic interceptions by law
enforcement agencies. During the same meeting, Mr. Workman stated:
Let me suggest that we might accomplish what we are trying to do by
accepting the first sentence, "The right of the people to be secure in
their persons, houses, papers and effects against unreasonable searches
and seizures and" from unreasonable invasions of privacy "shall not be
violated[.]" That injects into the Constitution guarantees this element
of privacy against unreasonable search.
Id. at 9. Though his last sentence is not entirely clear, it is apparent Mr. Workman
was trying to articulate a privacy provision limited to searches and seizures. And
the provision he suggested is remarkably similar to the provision ultimately
recommended by the Committee to the General Assembly.
Mr. Workman also stated during the October 6 meeting, "[O]ur problem is
arriving at a language to protect the rights of law enforcement agents and, at the
same time, or as best we can, balance the rights of individuals against unreasonable
searches." Id. at 8.
The lead opinion, the Chief Justice, and Justice Few (and, as I will discuss
below, this Court in State v. Forrester102) mistakenly claim a statement made by
Committee member Huger Sinkler during the October 6, 1967 meeting indicates the
Committee contemplated a privacy provision stretching beyond searches and
seizures. They seize upon the following statement of Mr. Sinkler: "I think this is an
area that, really, should develop and should not be confined to the intent of those
who sit around this table." Id. at 6. This is the cherry-picking Justice Few duly
warned us against. Context matters. The "area" referred to by Mr. Sinkler was the
meaning of the word "unreasonable," not the eventual scope of privacy rights. A
102
343 S.C. 637, 541 S.E.2d 837 (2001).
complete reading of the minutes reflects Mr. Sinkler and other Committee members
were debating the scope of the term "unreasonable" as it would be used in the privacy
provision. Mr. Sinkler first commented, "I think the court can take 'unreasonable'
and push it any way they want to do it. I agree with you that [the meaning of the
word 'unreasonable'] is something that the courts are going to write and not the
people sitting around this table." Id. Committee member T. Emmet Walsh
responded, "[W]hat might be reasonable today might not be reasonable in the
future." Id. Mr. Sinkler then repeated his comment that the question of what is
"unreasonable" was "an area that, really, should develop and should not be confined
to the intent of those who sit around this table." Id.Mr. Sinkler's concern during the October 6 meeting was whether, in drafting
a privacy provision, the Committee was "going too far in one direction without
giving thought to protecting the populace against criminals. They're going to get
into this electronic stuff very quickly[.]" Id. at 5. Interestingly, still in the vein of
what searches might be unreasonable, Mr. Sinkler stated, "I didn't want to deny
perhaps other areas of snooping that might become necessary, really, to preserve law
and order." Id. at 7.
Other members of the Committee weighed in as well. The full context of the
October 6 minutes reflects the Committee continued to debate the privacy provision
in the context of searches and seizures involving electronic and other technological
intrusions. There was not a hint of discussion regarding broad privacy rights, bodily
autonomy, or a woman's right to have an abortion.
3. October 7, 1967
There was limited discussion about the privacy provision during the October
7, 1967 meeting. See Minutes of Committee Meeting 154-55 (Oct. 7, 1967), in 1
Proceedings of the Committee to Make a Study of the Constitution of South Carolina
(1895). Mr. Workman read aloud a privacy provision from another (unknown)
source. The provision exclusively dealt with "unreasonable interception of
telephone, telegraph, and other electronic communications" and "unreasonable
interception of oral or other communication by electric or electronic means." Id. at
154. There was no discussion about the privacy provision being extended beyond
the context of searches and seizures.
4. January 24, 1968
There was again limited discussion about the privacy provision during the
January 24, 1968 meeting. See Minutes of Committee Meeting 48-49 (Jan. 24,
1968), in 3 Proceedings of the Committee to Make a Study of the Constitution of
South Carolina (1895). Mr. Stoudemire proposed language that became the
standalone provision the Committee ultimately proposed to the General Assembly:
"[T]he right of the people to be secure from unreasonable invasions of privacy shall
not be violated . . . ." Id. at 49. There was also discussion of a provision concerning
warrants that could be issued in the execution of laws related to health and safety.
Id. Language related to that subject was the subject of a proposed amendment
submitted by the Committee to the General Assembly. See Final Report, supra, at
14. It is irrelevant to the issue before us.
5. November 19, 1968
During this meeting, Chairman West brought up the privacy provision, and
Mr. Stoudemire reminded the Committee,
This is getting down to your mass computer data. It's getting to all
electronic stuff . . . . [W]e got into long discussions on this and decided
that there was no way we could find language to foresee what was going
to be an unreasonable invasion in 1980 and the agreement was that we
would strike a general statement . . . rather than trying to itemize.
Minutes of Committee Meeting 7 (Nov. 19, 1968), in 3 Proceedings of the
Committee to Make a Study of the Constitution of South Carolina (1895).
6. April 1, 1969
The Committee approved its proposed constitutional amendments on April 1,
1969. Final Report, supra, at 7. The section recommending the privacy provision
bears repeating:
Section J. Searches and seizures. The Committee recommends that
the historic provision on searches and seizures be retained. In addition,
the Committee recommends that the citizen be given constitutional
protection from an unreasonable invasion of privacy by the State. This
additional statement is designed to protect the citizen from improper
use of electronic devices, computer databanks, etc. Since it is almost
impossible to describe all of the devices which exist or which may be
perfected in the future, the Committee recommends only a broad
statement on policy, leaving the details to be regulated by law and court
decisions.
Id. at 15. As I previously noted, the Committee's recommendation of a privacy
provision was centered upon unreasonable invasions of privacy in the form of
"improper use of electronic devices, computer databanks, etc." Id. Because it was
impossible to describe "all of the devices which exist or which may be perfected in
the future," the Committee recommended "only a broad statement on policy." Id.
At every turn, the Committee focused upon drafting a privacy provision that
would protect citizens from searches and seizures of information and
communications through the improper use of electronic devices and the like. The
Committee had no intention of drafting an amorphous statement of privacy
considerations extending beyond the context of searches and seizures.
V. The General Assembly
The General Assembly received the proposed amendment from the
Committee in 1969. The General Assembly agreed with the language of the privacy
provision, but it did not propose the provision as a standalone sentence. Instead, the
General Assembly folded the proposed privacy provision into the existing searches
and seizures sentence. In 1970, the General Assembly submitted a ballot question
to the voters, which asked, "Shall the Constitution of this State be amended
by . . . substituting a new Article I, which new Article I shall provide for . . . searches
and seizures[?]" S.C. Election Comm'n, Report of the South Carolina Election
Commission for the Period Ending June 30, 1973, at 205. The proposed amendment
was approved by the voters and became what is now article I, section 10.
The lead opinion argues the privacy provision contemplates a woman's right
to an abortion. I disagree. We cannot ignore the fact that the very same General
Assembly that received the Final Report and submitted the privacy amendment to
the voters also passed legislation restricting abortions under certain circumstances.
See 1970 S.C. Acts 821 § 1; see also Reese, 237 S.C. at 360, 117 S.E.2d at 377(stating the framers would not write a provision into an amendment that was "not
suggested by its language or by any pertinent circumstances shown by the record to
have surrounded its proposal and adoption"). The General Assembly would not have
presented to the voters a privacy provision including the right to an abortion on the
heels of passing legislation restricting the right to an abortion. Similarly, if bodily
autonomy in general had been at the forefront of the privacy debate in South Carolina
in the late 1960s or early 1970s, there would be at least some evidence the
Committee and the General Assembly intended the privacy provision to extend to
bodily autonomy or abortion.
Further, as Justice Kittredge notes, only two years after the privacy
amendment was presented to and approved by the voters, this Court relied upon Roe
to reverse a doctor's conviction for performing an abortion. State v. Lawrence, 261
S.C. 18, 21-22, 198 S.E.2d 253, 255 (1973). Despite Dr. Lawrence being prosecuted
during a time when, according to Petitioners, abortion rights were front and center
in South Carolina, neither the State nor Dr. Lawrence referenced article I, section 10
or raised any argument pertaining to it. There was no mention in Lawrence of article
I, section 10 or even the word "privacy." It was a sign of the times that the newly
adopted privacy provision did not extend beyond the search and seizure of a citizen's
information and communications through the improper use of electronic devices.
Reese, 237 S.C. at 358, 117 S.E.2d at 376 (explaining that when construing a
constitutional amendment, the Court should consider "the history of the times in
which the amendment was framed").
More evidence our legislature did not intend the privacy provision to extend
beyond the context of searches and seizures is found in the General Assembly's
codification of Roe in 1974. See Act No. 1215, 1974 S.C. Acts 2837 (codified as
amended in scattered sections of S.C. Code Ann. §§ 44-41-10 to -80 (2018 & Supp.
2022)). The adoption of article I, section 10 was surely still fresh in the mind of the
General Assembly during the 1973-74 legislative session, but in the codification of
Roe, there is no mention of a right to privacy under the South Carolina Constitution.
VI. South Carolina Caselaw
The lead opinion claims this Court has "found that the right to privacy may be
implicated in many ways, from requiring a witness to divulge medical information
during a criminal trial [State v. Blackwell103] to forcing a convicted felon to take
medication so that he may be competent enough to be executed [Singleton v.
State 104]." Note that of these "many" cases, only Blackwell and Singleton come close
to relying upon article I, section 10 outside the context of searches and seizures, and
Blackwell is really not an article I, section 10 case. The lead opinion—Justice Few
also notes the supposed import of Blackwell—claims the "novel issue" in Blackwell
103
420 S.C. 127, 801 S.E.2d 713 (2017).
104
313 S.C. 75, 437 S.E.2d 53 (1993).
was "whether a criminal defendant's constitutional right to confront a witness trumps
a witness's state constitutional right to privacy and statutory privilege to maintain
confidential mental health records." The lead opinion also states, "In Blackwell, the
Court, in an attempt to recognize both the right to privacy and the United States
Constitution's Sixth Amendment right of confrontation, proffered a balancing test to
determine when a witness may be forced to divulge personal medical testimony."
We did not address the right to privacy in Blackwell; our analysis addressed only the
statutory privilege and the right of confrontation. Blackwell was a murder case in
which the defendant shot and killed an eight-year-old girl. The defendant's ex-wife
was a prosecution witness. The defendant subpoenaed his ex-wife's mental health
records to use during his cross-examination of her. South Carolina Code subsection
44-20-100(A) (2018) provides such records are confidential and must not be
disclosed unless an exception applies. One exception to confidentiality is contained
in subsection 44-20-100(A)(2); this exception provides the records may be disclosed
if a court finds "that disclosure is necessary for the conduct of proceedings before
the court and that failure to make the disclosure is contrary to public interest[.]"
The Blackwell "balancing test" cited by the lead opinion has nothing
whatsoever to do with the privacy provision contained in article I, section 10.
Instead, the Blackwell balancing test is statutorily driven and sets forth how the trial
court is to arrive at a determination of whether the statutory right of confidentiality—
not the constitutional right of privacy—has been overcome. We noted that in making
the determination of whether disclosure of mental health records is required, "the
judge should assess the importance of the witness to the prosecution's case and
whether the records contain exculpatory evidence, including, but not limited to,
evidence relevant to the witness's credibility." Blackwell, 420 S.C. at 155, 801
S.E.2d at 727-28. In Blackwell, our supposed implication of the article I, section 10
right to privacy was nothing more than (1) our recognition of a statutory right—not
a constitutional right—of confidentiality with respect to mental health records and
(2) our creation of a balancing test to determine whether a statutory exception to that
right applies.
This leaves Singleton as our only true non-search and seizure case to implicate
article I, section 10 in a meaningful way. In Singleton, this Court considered whether
antipsychotic medication could be forcibly administered to an incompetent inmate
to facilitate his competency for execution. 313 S.C. at 87, 437 S.E.2d at 60. The
Court first discussed the Fourteenth Amendment substantive due process
implications and noted "[t]he leading case" on this issue is Washington v. Harper,
494 U.S. 210 (1990). In Harper, the United States Supreme Court acknowledged
an incarcerated inmate "possesses a significant liberty interest in avoiding the
unwanted administration of antipsychotic drugs under the Due Process Clause of the
Fourteenth Amendment." Id. at 221-22. The Harper Court held "the Due Process
Clause permits the State to treat a prison inmate who has a serious mental illness
with antipsychotic drugs against his will[] if the inmate is dangerous to himself or
others and the treatment is in the inmate's medical interest." Id. at 227. The
Singleton Court noted that Harper and Riggins v. Nevada, 504 U.S. 127 (1992),
"have established the federal due process analysis required in a forced medication
case." Id. at 88, 437 S.E.2d at 60.
After the Singleton Court discussed the Fourteenth Amendment substantive
due process concerns, it went on to hold "the [article I, section 10] right of privacy
would be violated if the State were to sanction forced medication solely to facilitate
execution." Id. at 89, 437 S.E.2d at 61. The Singleton Court reached this conclusion
without mentioning the intent of the drafters of article I, section 10 or the history of
article I, section 10.
In Hughes v. State, we stated our holding in Singleton in a nutshell:
The State may not forcibly medicate an inmate solely to facilitate
execution. An inmate has a right, grounded in the state constitutional
right to privacy and the Fourteenth Amendment's Due Process [C]lause
of the federal constitution, to be free from unwanted medical intrusions.
The State may forcibly medicate an inmate only when he is dangerous
to himself or others, and then only when it is in the inmate's best
medical interest.
367 S.C. 389, 398 n.2, 626 S.E.2d 805, 810 n.2 (2006) (citing Singleton, 313 S.C. at
89, 437 S.E.2d at 61).
In Singleton, we could have and should have decided the issue of forced
medication solely by employing the Fourteenth Amendment substantive due process
analysis set forth in Harper and Riggins. Because article I, section 10 does not apply
outside the context of searches and seizures, I would overrule that portion of our
holding in Singleton.
Another case cited by the lead opinion, the Chief Justice, and Justice Few is
State v. Forrester, 343 S.C. 637, 541 S.E.2d 837 (2001). The issue in Forrester was
whether the article I, section 10 privacy provision requires law enforcement to
affirmatively inform suspects of their right to refuse consent to a search of their
possessions. Even though the Forrester Court noted Singleton applied the privacy
provision outside the search and seizure context, the holding in Forrester was
limited to the search and seizure arena. In discussing the added protections afforded
by the privacy provision in article I, section 10, the Forrester Court noted "the people
of South Carolina have indicated that searches and seizures that do not offend the
federal Constitution may still offend the South Carolina Constitution[,] resulting in
the exclusion of the discovered evidence." Id. at 644, 541 S.E.2d at 841 (emphasis
added). And the Court repeated the issue was limited to searches and seizures: "The
issue in the case before the Court is whether this privacy provision goes so far as to
require informed consent to government searches." Id. at 645, 541 S.E.2d at 841.105
The Forrester Court considered the Committee minutes:
The drafters of our state constitution's right to privacy provision were
principally concerned with the emergence of new electronic
technologies that increased the government's ability to conduct
searches. See Committee to Make a Study of the Constitution of South
Carolina, 1895, Minutes of Committee Meeting 6 (Sept. 15, 1967).
According to their minutes, "The committee agreed that [the search and
seizure provision] should remain, but that is [sic] should be revised to
take care of the invasion of privacy through modern electronic devices."
Id. However, the committee also recognized that the provision would
have an impact beyond just the area of electronic surveillance. As
Committee Member Sinkler stated, "I think this is an area that, really,
should develop and should not be confined to the intent of those who
sit around this table." Id. at 6 (Oct. 6, 1967).
Forrester, 343 S.C. at 647, 541 S.E.2d at 842 (alterations in original). As I
previously noted, the lead opinion, the Chief Justice, and Justice Few take Mr.
Sinkler's comments out of context. The "area" referred to by Mr. Sinkler was the
meaning of the word "unreasonable," not an as-yet undeveloped panoply of privacy
rights. The Forrester Court also took Mr. Sinkler's comments out of context.
The Forrester Court stated,
It is important to note that [the Committee] minutes will not be
controlling of the intent behind, or interpretation of, our state
105
A twist in the Forrester holding that does not impact the instant case was the
Court's holding that under the privacy provision, law enforcement must not exceed
the scope of the consent to search granted by a suspect. Id. at 648-49, 541 S.E.2d at
843.
constitution. This fact was even noted in Committee Member [Huger]
Sinkler's observation that [the Committee's] discussions would not
control any subsequent interpretation. We include these discussions for
their historical context and interest.
Id. at 647 n.7, 541 S.E.2d at 842 n.7. Again, Mr. Sinkler's comments must be read
in context; he was discussing how courts, not the Committee, would have to develop
the scope of what might be "unreasonable." He was not debating the issue of how
broadly privacy interests might eventually be construed.
I also note the word "controlling" in the foregoing quote. While the
Committee minutes and Final Report do not exclusively control our interpretation
of article I, section 10, they are a helpful starting point and should inform our
construction of the privacy provision. After all, the Forrester Court itself relied on
its own (erroneous) interpretation of Mr. Sinkler's comments. To the extent
Forrester stands for the proposition that we must not seek guidance from the
Committee minutes and Final Report, I would overrule that portion of the opinion.106
There may be concern about overruling or modifying what some may consider
settled precedent in the area of article I, section 10. However, in McLeod v. Starnes,
Justice Hearn, writing for the majority, noted:
"Stare decisis should be used to foster stability and certainty in the law,
but not to perpetuate error." Fitzer v. Greater Greenville S.C. Young
Men's Christian Ass'n, 277 S.C. 1, 4, 282 S.E.2d 230, 231 (1981),
superseded by statute on other grounds, S.C. Code Ann. § 33-55-200et seq. (2006). Stare decisis applies with full force with respect to
questions of statutory interpretation because the legislature is free to
correct us if we misinterpret its words. Layton v. Flowers, 243 S.C.
421, 424, 134 S.E.2d 247, 248 (1964). However, the doctrine is at its
weakest with respect to constitutional questions because only the courts
or a constitutional amendment can remedy any mistakes made.
Agostini v. Felton, 521 U.S. 203 (1997).
State v. Counts, 413 S.C. 153, 776 S.E.2d 59 (2015), should not be interpreted to
106
hold the privacy provision extends beyond the context of searches and seizures;
however, to the extent Counts can be so interpreted, I would overrule that holding.
396 S.C. 647, 655, 723 S.E.2d 198, 203 (2012) (emphasis added) (cleaned up).107
VII. Conclusion
The scope of the privacy right included in article I, section 10 is of doubtful
import. Therefore, we must consider the intent of the framers and the voters. It is
clear the framers did not intend to create a full panoply of privacy rights, much less
the right to bodily autonomy or the right to have an abortion. Our right under article
I, section 10 to be free from "unreasonable invasions of privacy" provides citizens
with heightened Fourth Amendment protections, especially protection from law
enforcement searches and seizures of communications and information through
improper use of electronic devices. I respectfully dissent from the lead and
concurring opinions. I concur in part with Justice Kittredge's dissent.
107
The Chief Justice states, "Under Singleton and Forrester, our touchstones, the
right to privacy extends outside of the search and seizure context and encompasses
'unwarranted medical intrusions.'" I disagree. These two cases are not touchstones.
Forrester is a search and seizure case and has nothing to do with unwarranted
medical intrusions, and as I previously discussed, Singleton should be partially
overruled.