Jurisprudence

South Carolina’s Supreme Court Becomes the First to Establish a Right to Abortion Post-Roe

It won’t be the last.

Pro-choice protestors with the U.S. Capitol in the background.
A protest against the Supreme Court’s reversal of Roe v. Wade. Roberto Schmidt/Getty Images

The South Carolina Supreme Court delivered a victory for reproductive rights on Thursday, though that victory may be short-lived. In a 3–2 decision, the majority found the state constitution protects abortion access as a component of the right to privacy. It’s the first time a state Supreme Court has found a right to abortion in its state constitution since the U.S. Supreme Court overruled Roe v. Wade in June. In sharp contrast, the Idaho Supreme Court upheld its state’s abortion ban by a 3–2 vote just hours later.

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The South Carolina court’s ruling ensures that abortion is once again legal in the state until 20 weeks of pregnancy. It leaves room, however, for the GOP-controlled legislature to impose a stricter limit. And it may prove vulnerable to reversal in the near future: The legislature will soon replace a justice in the majority, potentially flipping the court against abortion rights.

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The case, Planned Parenthood South Atlantic v. South Carolina, arose after the legislature criminalized abortion after six weeks of pregnancy in 2021. At the time, Republican lawmakers anticipated that Justice Amy Coney Barrett’s confirmation to SCOTUS would assure Roe’s demise, and they were correct. Now that there’s no more federal right to abortion, the decision of when to allow it lies with each state—including, as Justice Brett Kavanaugh noted, state supreme courts. Most state constitutions provide more expansive protections than the federal constitution, and South Carolina is no exception: It is one of 10 states whose constitution explicitly guarantees a right to privacy.

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In Roe’s absence, reproductive rights advocates argued that the six-week ban constitutes an “unreasonable invasion of privacy” forbidden by the South Carolina Constitution. The state Supreme Court agreed, though all five justices wrote separate opinions, and no single opinion commanded a majority. Three justices agreed that the law violated patients’ right to privacy for basically the same reasons: The right to privacy includes control over personal medical decisions, including reproductive health; many patients don’t even know they’re pregnant by six weeks, so the ban prevents them from making an “informed choice” about ending their pregnancy. Or, as Chief Justice Donald W. Beatty put it bluntly, the ban “effectively usurps a woman’s authority to make medical decisions” over her own body and “places this power, instead, solely in the hands of a political body.”

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While the three opinions that make up the majority are largely on the same page about the right to privacy, none of them identified the precise point at which the state can begin to ban abortion. State law already prohibits abortion after 20 weeks of pregnancy, and the majority did not question that outer limit. To the contrary, it seemed to leave room for a ban that’s stricter than 20 weeks. Justice John Cannon Few, who cast the decisive vote, wrote that patients must simply have “an opportunity to make a meaningful choice.” Elaborating, he suggested that the state cannot ban abortion at any point before “a majority of women” in South Carolina know they are pregnant. Few struck down the six-week ban precisely because the legislature failed to consider this question.

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As a result, if the legislature can demonstrate that a majority of South Carolina residents know they are pregnant by 12 weeks, Few may well uphold a 12-week ban. The same goes for a 10- or even 8-week ban. He took pains to give the state ample room for another, more stringent restriction, as long as it backed up the bill with empirical evidence.

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This will not be the last time a state Supreme Court finds a right to abortion under state law in the absence of Roe. The high courts of multiple other states—including Georgia, Indiana, Kentucky, Utah, and Wyoming—will soon decide similar challenges. Some will follow the Idaho Supreme Court in rejecting reproductive rights, but others are considerably more moderate than their GOP-controlled legislatures. Although the legal questions in those cases are distinct, courts may feel emboldened to push against legislative extremism. The Kansas Supreme Court, after all, was vindicated just last summer when voters refused to overturn a decision protecting abortion under the state constitution.

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State court decisions are also much more vulnerable to political override than federal rulings, and the South Carolina decision may not last for long. The third justice who made up the majority, Kaye G. Hearn, will retire next month. (She is required to step down due to age limits.) Her retirement gives the legislature an opportunity to replace her with an anti-abortion hardliner, though that outcome is not assured. In South Carolina, Supreme Court nominees are selected by a judicial nominating commission that takes applications from lawyers across the state. It picks three top candidates to present to the legislature, which elects one of them to the court. Although the commission is dominated by Republicans, it has sometimes selected moderates—as Thursday’s decision illustrates.

Nonetheless, the South Carolina legislators who passed the six-week ban will presumably want to pick a justice who’s more favorable to their anti-abortion legislation. At a time when abortion access is critically endangered in the South, though, every clinic counts. And the state Supreme Court has ensured that, for the time being and thanks to the right to privacy, South Carolina’s clinics can continue helping patients who seek care.

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