South Carolina’s Supreme Court Backtracks on Reproductive Rights

Last week, the South Carolina Supreme Court upheld as constitutional a recent law banning abortion in almost all cases after the earliest weeks of pregnancy. The 4–1 decision comes months after the court struck down a very similar 2021 abortion ban in January. This about-face follows the departure of the court’s only female justice, who reached the state’s mandatory retirement age and was replaced by the state legislature’s appointee earlier this year. The turbulent legal fight in South Carolina highlights the unstable nature of post-Dobbs reproductive rights, which often hinge on state high courts’ conflicting and changeable interpretations of their constitutions.

As it did in January, the South Carolina Supreme Court’s latest decision acknowledged that the state law banning abortion upon detection of a fetal heartbeat — which has been informally characterized as a six-week ban — “infringes on a woman’s right of privacy and bodily autonomy.” Yet this time, the reconfigured court held that respect for separation of powers and deference to the state legislature’s policymaking authority required it to uphold the law regardless.  

Specifically, the court opined that the legislature made a “reasonable policy decision” that individuals’ right of privacy “does not outweigh the interest of the unborn.” As such, it concluded that the law doesn’t conflict with the text of the South Carolina Constitution, which only protects against “unreasonable invasions of privacy” (emphasis added). Though the court majority nodded to the political disagreements surrounding the legislature’s decision, it wrote that “it would be a rogue imposition of will by the judiciary for us to say that the legislature’s determination is unreasonable as a matter of law.” 

Critics, including the lone dissent by Chief Justice Donald Beatty, said the ruling flies in the face of stare decisis — the principle that courts should adhere to precedent set in past decisions to preserve consistency of the law and maintain the public’s confidence that judges are doing more than just enacting their personal preferences. Beatty maintained that the abortion ban the legislature passed this May is essentially the same as the 2021 ban the court previously deemed unconstitutional, as both versions of the law prohibit abortion after fetal heartbeat, which is assumed to be at six weeks. Notably, the court concluded in January that because many people don’t know they’re pregnant after only six weeks, the 2021 law prevented individuals from making an informed choice about whether to seek abortion care, which constituted an unreasonable invasion of privacy. As the basic substance of the 2023 law remains unchanged, Beatty wrote in his dissent, there should be no reason for the court to depart from its precedent.

The majority opinion, on the contrary, explained the court wasn’t permanently bound by stare decisis in this case for several reasons. First, it held that the 2023 ban “is materially different” from its previous iteration and warrants new consideration, noting the legislature made changes to the law based on flaws the court identified in its ruling on the 2021 law. For instance, it cited revisions to the new law’s legislative findings and purposes and an added focus on state-sponsored family planning efforts, such as access to insured contraception, aimed at preventing pregnancy. 

Second, and perhaps most importantly, the majority said that the court’s January decision on the 2021 ban did not find a fundamental right to abortion under the state constitution. Instead, it said the prior decision was “fragmented,” as the three justices who ruled against the ban had differing interpretations of the scope of the South Carolina Constitution’s privacy provision. In particular, one of the three justices had joined the two dissenting justices in supporting a narrower reading of the privacy provision that didn’t expressly include an abortion right. That reading ultimately won out in the reconfigured court’s new decision upholding the 2023 ban. 

South Carolina’s high court isn’t the only one grappling with internal divisions over stare decisis. When the neighboring North Carolina Supreme Court overturned recent decisions related to redistricting and voting rights months after its ideological majority flipped, dissenting Justice Anita Earls wrote that the decisions would “send a smoke signal to the public that [the court’s] decisions are fleeting and [its] precedent is only as enduring as the terms of the justices who sit on the bench.”

These decisions in both South Carolina and North Carolina highlight the practical reality of state courts’ growing importance in determining an increasing number of individual rights. While state courts and constitutions can be vehicles for more expansive rights protections, the longevity of these rights isn’t guaranteed.

Gabriella Sanchez is a staff writer and editor at the Brennan Center for Justice.