The South Carolina state Supreme Court has ruled there is a right to an abortion in that state’s Constitution provided by the explicitly stated right to privacy. Concurrently, the court overturned a ban on abortion in the state after roughly six weeks of pregnancy, the point when fetal cardiac activity is generally first detected.
The right to abortion that the court outlined is not absolute, like the right to the procedure previously available under the federal Supreme Court ruling Roe v. Wade wasn’t all-encompassing. Additionally specific, legal contours of the right as established in South Carolina remain to be set, and South Carolina GOP legislators could attempt to enact something less restrictive than the six-week ban but more restrictive than what Roe allowed. However, The New York Times identified the South Carolina court’s decision as the first final ruling by a court of its position in a state judiciary since federal Justices overturned Roe, marking what remains a win. The majority concluded “the decision to terminate a pregnancy rests upon the utmost personal and private considerations imaginable.”
The law the South Carolina state Supreme Court overturned was passed in 2021, before the federal judges overturned Roe. It included exceptions for cases involving rape, incest, or threats to the life of the pregnant person, but these provisions aren’t necessarily models of compassion. Forcing those already traumatized to in some way document the details of their assault before obtaining what was previously a broadly available medical procedure could be psychologically damaging. In situations involving health complications, how far is too far? What if pregnant individuals suffer damaging effects to their health while involved medical personnel struggle with determining if the situation is serious enough that they won’t be criminally charged for performing or helping the patient obtain an abortion? The South Carolina state Supreme Court previously put the six-week ban on hold while the legal case moved forward.
The New York Times notes that the state team in this South Carolina dispute cited a legislative committee active in the 1960s that dealt with tenets of the state Constitution — a committee that also recommended literacy tests for voters as an option despite bans and prohibitions on interracial marriage. The state Supreme Court Justices were also broadly concerned about the length of time that had passed. “We cannot relegate our role of declaring whether a legislative act is constitutional by blinding ourselves to everything that has transpired since,” they said. Justice Kaye Hearn, who authored the majority opinion, is only the second woman to serve on the South Carolina Supreme Court, and the Times notes she observed during arguments the state’s side was entirely male.
