South Carolina Weighs In; Privacy Rights in the Wake of Dobbs

Fox Rothschild LLP

Fox Rothschild LLP

Yesterday, the Supreme Court of South Carolina offered its response to the decision last June by the U.S. Supreme Court in Dobbs v. Jackson Women’s Health. Until last June, this would have been a relatively insignificant decision. But that changed because of Dobbs, a case where the Supreme Court held that to the extent that the right to abortion was construed as a right of privacy, there was no precedent for such an interpretation in the Constitution or the documents like the Bill of Rights or the Federalist Papers. The reasoning of Dobbs suggests that there being no fundamental right to privacy written into the Constitution, it is for the states to decide what is or isn’t criminal conduct within their jurisdictions when the subject is the right of a woman to terminate a pregnancy.

            In 2021 the South Carolina legislature adopted a Fetal Heartbeat bill. It prohibited abortion after six weeks of gestation. Essentially if a fetal heartbeat could be detected the right to an abortion was foreclosed. Exceptions were granted for up to 20 weeks in the case of rape or incest and beyond that period if the life of the mother was endangered or there was fetal abnormality. The Court concludes that the restrictions imposed by the law violate the South Carolina Constitution;  specifically Article I, Section 10. That article discusses unreasonable searches and seizures and “unreasonable invasions of privacy.” As we have noted in earlier writings when it comes to constitutional law “words matter” so we offer the precise language of the South Carolina Constitution.* The reason the precise language is important is because the State of South Carolina argues that this constitutional right has to do with search and seizure of evidence in a criminal case and is not intended to confer rights to secure an abortion. The Petitioners who sought to reverse the law limiting abortion argue that the reference to privacy includes the right to govern one’s medical care without state intervention. The South Carolina Supreme Court acknowledges that much of Article I, Section 10 mirrors the US Constitution’s 4th Amendment but then pivots to observe that the Constitution does not stop there but adds protections from “unreasonable invasions of privacy.” The language preceding it references the right to be “secure in their person” and the Supreme Court says, consistent with longstanding statutory interpretation, that each word must be afforded meaning and cannot be written out of existence by ignoring it. In a fascinating comparison, the South Carolina court notes that the right to privacy is comparable to the rights conferred by the 2nd amendment. Citing federal cases, the court observes that the right to bear arms is, like the right to privacy, fundamental to constitutional principles.

            The petitioners argued that the right to abortion is inherently private and personal. The state contended that privacy does not include medical decisions. The Court correctly observes that prior to 1890 there is a dearth of cases even discussing privacy as a right. But it pivots to add that shortly after Louis Brandeis published his Harvard Law Review article on privacy in 1890 the Supreme Court of Georgia held that the right is “an instinct of nature….recognized intuitively.” The Court then cites its own 1940 case holding that courts have a duty to address “changing conditions in human experience.” Note well this is not a musing by justices of the Warren Court but a pre-war decision by the Supreme Court of South Carolina. In 1942 the U.S. Supreme Court found that privacy afforded Americans the right to procreate. In Skinner v. Oklahoma the U.S. Supreme Court dealt with a statute that mandated state sterilization and held that the right to reproduce was a “basic liberty.” 316 U.S. 535 (1942). Thus, in a fascinating way, the South Carolina court finds that if the right to procreate is fundamental and not subject to state intervention, the right to terminate should be afforded the same weight. Much as Dobbs overulled Roe v. Wade, Skinner overruled a 1927 case, Buck v. Bell, that approved sterilization on the basis that “three generations of imbeciles are enough.”

            The South Carolina Court notes the ruling in Dobbs and cites its reference to the absence of privacy rights in the Constitution or Bill of Rights. It then notes that its ruling is issued in an environment where the South Carolina Constitution does contain an explicit reference to preventing unreasonable invasions of privacy. That constitutional amendment was adopted after Griswold v. Connecticut (1965) held that couples should have the right to employ contraception despite laws forbidding its use. Then it notes that South Carolina’s and Louisiana’s Supreme Courts have held that the state does not have the right to insist that persons being executed consume state prescribed medications during their execution. Both cases were grounded upon the right of a person to privacy in their medical affairs even when condemned to death.

                        The opinion then surveys states that have constitutional rights to privacy and cases stating that the constitutional right includes the right to terminate a pregnancy. Unfortunately, all of these cases come after Roe v. Wade in 1973 and thus seemed premised upon what many, if not most Americans, saw as settled law. The Court reviews medical studies indicating that six weeks is often the earliest that women may detect pregnancy and concludes without great specification that six (6) weeks is not enough if a woman’s privacy right is protected under the Constitution of South Carolina.

            Planned Parenthood vs. South Carolina is a close ruling. Three opinions hold the statute unconstitutional and only 2 of the three in the majority agree on anything other than the result. Two justices dissent. The decisive utterance appears to be that six weeks violates constitutional privacy rights but a longer period (e.g., 10 weeks) may not. In Roe the plurality drew the line at fetal viability and pronounced that to occur after 24/28 weeks. In a word, what the South Carolina Court seems to say is that the legislature may pass what bill it wants but the courts will exercise an independent power to ratify or rescind these laws based on what a majority of the court believes to be “proper.”  Anything less violates privacy where a privacy protection is built into a state constitution.

            Pennsylvania has two sections of its constitution in play. Article 1 says all citizens have the right to enjoy and defend life and liberty and to pursue their own happiness. Article 8 discusses limits on unreasonable searches and seizures but does not reference explicitly any right to privacy. Thus, it seems that the right to privacy does not shine through here as it does in the South Carolina constitution. In Pennsylvania women are currently free to secure an abortion up to 24 weeks after conception. 18 Pa.C.S. 3211 et seq. The challenge that becomes apparent is: what makes a court better able to judge a concept like fetal viability in relation to constitutional privacy than a state’s elected representatives? Or put another way, by what constitutional authority do courts appropriate what is effectively the power to define and thereby regulate privacy? Could South Carolina’s court decide that the right to privacy allowed a woman to abort a child while she was in labor after 40 weeks? The decision rendered today essentially says “Six weeks violates privacy; try again.”

            Today’s decision is important because it appears that Dobbs has empowered the states to regulate all of this. Planned Parenthood v. South Carolina stands for the proposition that states with rights of privacy built into their constitutions may need to evaluate what that means when deciding to regulate abortion. But, if one thing is clear, clarity is a long way off on this vitally important subject.

Planned Parenthood v. State of South Carolina   Case 2022-1062   January 5, 2023

*SECTION 10. Searches and seizures; invasions of 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, 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. (1970 (56) 2684; 1971 (57) 315.) Editor’s Note The present provisions of this section are similar to former Section 16 of Article I as it existed prior to the 1971 revision. For similar provisions in Constitution of 1868 see Article I, Section 2.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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