South Carolina Can't Have Its Nonsensical Anti-Abortion Law

Hooray!

On Thursday, in a 3-2 decision, South Carolina's state Supreme Court struck down the Fetal Heartbeat and Protection from Abortion Act, which banned abortion after fetal pole cardiac activity is first detected — usually about six weeks — not on the grounds that it is stupid because fetuses don't even develop a heart until 20 weeks, but on the grounds that it violated the right to privacy in the state's constitution.

The ban included rape and incest exceptions (which does rather fly in the face of the "We definitely think a six-week-old fetus the size of a baked bean with no heart is a full-on human being with an actual heartbeat" schtick when you think about it), but was still (correctly) determined to be too extreme because it does not allow the pregnant person enough time to know they are pregnant and have an abortion. It also conflicted with another South Carolina law on the books that bans abortion at 20-22 weeks. As in many other states, South Carolina Republicans passed multiple abortion bans that were never actually supposed to go into effect because Roe was the law of the land.

At issue was the fact that, unlike the Constitution of the United States, the South Carolina state constitution explicitly includes a right to privacy, stating that "[t]he 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 . . . ."

Lawyers arguing for the state argued that this right extended only to "unreasonable searches and seizures" in terms of police looking for evidence, while attorneys for Planned Parenthood argued that it applied to all "unreasonable invasions of privacy" and that one's personal medical decisions concerning pregnancy were private.

Ultimately, the majority opinion held that "unreasonable invasions of privacy" had to refer to things other than searches and seizures, because why else include it in the sentence if it meant the exact same thing as "unreasonable searches and seizures"?

“We hold that our state constitutional right to privacy extends to a woman's decision to have an abortion. The State unquestionably has the authority to limit the right of privacy that protects women from state interference with her decision, but any such limitation must be reasonable and it must be meaningful in that the time frames imposed must afford a woman sufficient time to determine she is pregnant and to take reasonable steps to terminate that pregnancy. Six weeks is, quite simply, not a reasonable period of time for these two things to occur, and therefore the Act violates our state Constitution's prohibition against unreasonable invasions of privacy ,” wrote Justice Kaye Hearn in the majority opinion.

The interesting thing about this particular decision is that the justices actually did accept the bad science put forth by advocates of so-called "Heartbeat Bills," which make the ridiculous claim that what the American College of Obstetrics and Gynecologists refer to as an "electrically induced flickering of a portion of the embryonic tissue," is an actual "heartbeat," and decided that it didn't matter. The point of these bills is to make a time frame like "six weeks" seem less arbitrary, because it allows them to say "this is the specific reason we don't want abortion allowed after this point" rather than "we don't like abortion and would like to make it more difficult for people to get one." Without that non-arbitrary point, there isn't really any logical reason to regulate abortion prior to viability.

Whether this will actually occur to anyone making these kinds of decisions remains to be seen — and whether Justice Hearn's replacement, as she is being termed out of the court after hitting its age limit, will flip the decision remains to be seen too.

Still, this is very good news for the people of South Carolina, particularly those who would dislike being forced to give birth against their will.

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