In June 2022, in Dobbs v. Jackson Women’s Health Organization, the U.S. Supreme Court said what we can all read for ourselves, that the U.S. Constitution “does not confer a right to abortion.”
That shifted the venue for those who want to eliminate any legal protection for the unborn to state courts and state constitutions. In January, the South Carolina Supreme Court held that a ban on most abortions after detection of a “fetal heartbeat” violated the South Carolina Constitution.
That court has now examined a slightly modified statute and, this time, found it constitutional.
The Fetal Heartbeat and Protection from Abortion Act of 2021 allowed abortions after detection of a fetal heartbeat only in cases of “fetal anomaly,” when the pregnancy resulted from rape or incest, or when the abortion was “necessary … to prevent the death of the pregnant woman or to prevent a serious risk of a substantial and irreversible physical impairment of a major bodily function.”
Planned Parenthood went to state court, arguing that the law violated the state constitution.
The South Carolina Constitution does not explicitly protect a right to abortion and uses the word “privacy” only once. 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.”
That’s an unusual provision. Some state constitutions, such as in Alaska, California, and Montana, protect a stand-alone “right of personal privacy.” South Carolina and Illinois, however, connect privacy directly to the right to be free from unreasonable searches and seizures—language similar to the Fourth Amendment in the U.S. Constitution. The Illinois Supreme Court held in 2013 that, in this context, “privacy” did not include abortion.
The South Carolina Supreme Court now had its chance to address the issue.
The court’s first decision in Planned Parenthood v. South Carolina (Planned Parenthood I), however, was so fractured that only its 3-2 judgment that the abortion ban was unconstitutional seemed clear. Each of the justices in the majority offered different reasons for that conclusion, and the two dissenters each wrote their own opinion explaining their position.
Two justices, for example, plucked “privacy” from its search-and-seizure context and said that it included a right to abortion. Justice John Few disagreed with that conclusion, but still voted to find the law unconstitutional. He focused on the possibility that women might not know they are pregnant, and therefore unable to make an informed abortion decision, until after a fetal heartbeat can be detected and the opportunity to choose abortion no longer exists.
That, Few wrote, made the law “arbitrary.”
The legislature went back to the drawing board, attempting to address the issue that concerned him. The basic ban on most abortions after a detectable fetal heartbeat remained, but a revised section describing the legislature’s findings and the statute’s purposes put less emphasis on the woman’s informed choice and more on how the legislature balanced “a woman’s interest in autonomy and privacy” against “the interest of the unborn to live.”
In a 4-1 decision (Planned Parenthood II), the court concluded that “the balance struck by the legislature was [not] unreasonable as a matter of law” and, therefore, upheld the revised statute.
While pro-life advocates are cheering this result, this decision has its own serious flaws. The most important constitutional question was whether the reference to “privacy” in Article I, Section 10, was limited to the search-and-seizure context or, freed from that context, included a right to abortion.
The court in Planned Parenthood I did not clearly answer that question. Few and the two dissenters rejected the idea that “privacy” could be pulled out of its context and given a broader meaning, but it was not a formal holding of the court.
Planned Parenthood II is even more confusing on this important point. The court “reaffirm[ed] our finding from Planned Parenthood I that there is no fundamental constitutional right to abortion under Article I, Section 10.” Just two sentences later, the court said that “in the interest of unity, we shall assume only for purposes of our analysis and decision today that the privacy provision reaches beyond the search-and-seizure context to include bodily autonomy.”
Wait, what?
In Planned Parenthood I, Few “rejected” the idea that “privacy” in Article I, Section 10, applies beyond search and seizure. Similarly, Justice George James wrote in dissent that “a citizen’s right to be free from unreasonable invasions of privacy does not extend beyond the context of searches and seizures.”
Yet Few and James both signed onto the majority opinion in Planned Parenthood II, asserting that “the privacy provision reaches beyond the search-and-seizure context.”
Reaffirming a precedent means, by definition, that the previous decision affects the later one. But “assuming” that a holding applies only to the present case means that it does not affect later ones. This is made all the more confusing when both decisions address the same point of law—and come to different conclusions. All “in the interest of unity,” no less.
The confusion continues. In his Planned Parenthood I dissent, Justice John Kittredge wrote that the reference to privacy “is part of the search-and-seizure clause and is not a standalone provision.” There is, he wrote, “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.”
In his Planned Parenthood II majority opinion, however, Kittredge wrote that (at least for this one decision) “the privacy provision reaches beyond the search-and-seizure context to include bodily autonomy.” Whew!
In a disturbing sign of the times, most news reports on Planned Parenthood II—from ABC, the Associated Press, Axios, Detroit News, The Hill, The Los Angeles Times, NBC, PBS, Politico, U.S. News & World Report and many others—made sure everyone knew the court was “all-male,” but didn’t bother explaining why that fact was relevant. By leaving that innuendo hanging, the media contribute to the public’s misperception that courts decide cases based on personal opinions and politics (or in this case, gender), rather than law.
Courts decide cases in two parts: the judgment, which identifies the winner, and the opinion, which explains the judgment. Both are important. The judgment decides the case before the court; the opinion can influence cases beyond that one. Especially when a case involves a volatile issue, such as abortion, courts have a duty not only to find the right answer, but to explain it so that the public can better understand and evaluate what the judicial branch is doing.
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