Four of the court’s five justices are registered Republicans, while Chief Justice Donald Beatty is a Democrat, and all were appointed by the Republican-controlled legislature.
“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,” Beatty wrote in a concurring opinion. “This fundamental, constitutional mandate transcends politics and opinion.”
The South Carolina Supreme Court is the first state high court to find a state-level constitutional right to abortion since the fall of Roe v. Wade. Similar challenges are pending in Arizona, Georgia, Kentucky, Indiana, Iowa, North Dakota, Ohio, Utah, Wisconsin and Wyoming.
“It’s certainly disappointing. It infringes on the legislature’s job of making the laws,” said state Rep. John McCravy, a Republican who spearheaded attempts to expand abortion restrictions in South Carolina last year. “Even more important, this allows the continuing of killing of innocent babies while all this debate persists.”
South Carolina’s privacy clause, adopted in 1971, states that people have the right to “be secure in their persons, houses, papers, and effects against unreasonable searches and seizures and unreasonable invasions of privacy shall not be violated.”
During oral arguments in October, attorneys representing the state’s abortion clinics argued the privacy clause should be interpreted broadly to protect the right to abortion.
“We would submit that there are few if any choices that are as important to the course of women’s lives as the decision whether to have an abortion or to give birth,” Julie Murray, a Planned Parenthood Federation of America attorney, told the court.
Attorneys representing the state argued for a narrow right to privacy.
“At the end of the day, my friends on the other side, the petitioners, bear the burden to show that privacy falls within this language, and they can’t do that,” said Grayson Lambert, senior counsel for Republican Gov. Henry McMaster.
The state’s abortion ban — which prevents abortions after the detection of fetal cardiac activity, around six weeks of pregnancy — has been blocked since August while the state’s Supreme Court took up the legal challenge against it.
South Carolina lawmakers this summer failed to pass a new ban that would have prohibited nearly all abortions starting at conception. While the House passed such a ban, with exceptions in cases of rape, incest and life endangerment, moderate Republicans joined with Democrats in the Senate to tank that proposal, with the chamber instead passing a modified version of the existing six-week ban.
Lawmakers have already introduced a bill prohibiting abortion starting at conception that will be considered during the upcoming legislative session. McCravy said he still plans to push for that bill’s passage when lawmakers begin their session on Tuesday.