In Dobbs v. Jackson Women’s Health Organization (2022), the U.S. Supreme Court recognized the obvious: The U.S. Constitution does not protect or mention any alleged right to abortion. In overturning almost fifty years of federal judicial policymaking on abortion, the Court declared that “the authority to regulate abortion must be returned to the people and their elected representatives.”
In 2021 and in anticipation of abortion policy being returned to the states, the South Carolina General Assembly enacted the Fetal Heartbeat Act, which as the name indicates bans most abortions after the detection of a fetal heartbeat. Fetal heartbeat activity may be detected at approximately six to eight weeks into the pregnancy. The Act contains exceptions for rape, incest, the mother’s health, and irremediable congenital or chromosomal anomalies incompatible with the child sustaining life after birth.
Dismayed that South Carolina’s citizens through their elected representatives were back in control of abortion policy, Planned Parenthood South Atlantic and its allies turned to the state courts to nullify the democratic process. One would think that such an attack would amount to tilting at windmills. After all, South Carolina is a solidly red state with Republicans controlling the state senate since 2002 and the house since 1994. Because the General Assembly chooses judges in the state, one would expect—at least in the state supreme court—a bench stocked with strict constructionists and adherents to the tenets of judicial restraint. Well, not exactly. More on why later.
In Planned Parenthood South Atlantic v. State (2023), opponents of the Act won the day when three of South Carolina’s five supreme court justices—channeling the Warren Court’s mid-1960s privacy jurisprudence—found a broad right to privacy in the South Carolina Constitution that encompasses a right to abortion.
The constitutional provision at issue is Article I, Section 10, which 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, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, the person or thing to be seized, and the information to be obtained.
This provision mirrors the Fourth Amendment to the U.S. Constitution except for the italicized words which were added when the people amended the state constitution in 1971. The first clause of the Fourth Amendment (and South Carolina’s Article I, Section 10) announces the right to be free from “unreasonable searches and seizures.” The second clause provides the basic measure of what constitutes a reasonable search. A government actor must obtain a warrant from a magistrate and establish probable cause for the belief that, say, contraband will be found in a location. The government actor must swear by oath or affirmation and describe with particularity the place to be searched and the things to be seized.
So why in 1971 was the state constitution amended to make reference to “unreasonable invasions of privacy”? The answer lies in the work and documents of the West Committee. Created in 1966 to update and reform provisions of the South Carolina Constitution of 1895, the committee studied and suggested changes to the state’s fundamental law. State senator and future governor John C. West led the committee in its work. The committee’s reports and minutes are discussed in detail in the excellent dissenting opinions of Justices John Kittredge and George James.
The West Committee’s final report indicates that a specific mention of invasions of privacy was “designed to protect the citizen from improper use of electronic devices, computer databanks, etc.” The committee recognized rapid advances in technology and believed that “[a] democratic society [requires] the development of constitutional norms that will protect individual privacy from the omnipotent ear of modern surveillance equipment.” Considering the surveillance techniques available to modern law enforcement officers, the committee’s concerns were prescient.
The committee envisioned a standalone constitutional provision addressing invasions of privacy, but the General Assembly chose to amend the state constitution’s search and seizure provision with the italicized language quoted above.
Just looking at the words “unreasonable invasions of privacy” without context raises an ambiguity. How far does privacy extend? For example, does it include possession of cocaine or methamphetamine in one’s home? If such possession implicates privacy, what actions may the state take to regulate or criminalize drug possession? To resolve such ambiguities, courts typically resort to legislative history and other tools of construction. The history of the West Committee’s works leaves no doubt about the purpose of the amendments to the search and seizure provision: new surveillance technologies and state data collection. Indeed, the South Carolina supreme court in many other cases has turned to the West Committee’s work when interpreting other amendments enacted in 1971.
So how did the Planned Parenthood South Atlantic majority ignore the clear history and read “invasions of privacy” to apply outside of the surveillance and data collection contexts? The lead opinion, authored by Justice Kaye Hearn, objected to examination of the West Committee’s materials because the committee was composed of “nine men and not a single woman.” Hearn admits that abortion and bodily autonomy were not mentioned by the committee nor were “uppermost in the minds of the Committee members.” But because the General Assembly in the 1960s had no Diversity Equity and Inclusion requirements for committee membership, the findings of the West Committee must be ignored. One hopes that Justice Hearn, who is scheduled to retire soon, is never asked to interpret ambiguous provisions of the U.S. Constitution of 1787. If the West Committee’s composition offends her, one can only wonder the disdain she has for the Philadelphia Convention and state ratifying conventions.
By divorcing “unreasonable invasions of privacy” from government searches and seizures despite the phrase appearing in South Carolina’s version of the Fourth Amendment and then tossing the West Committee’s work in the proverbial circular file, the majority was able to “hold that our state constitutional right to privacy extends to a woman’s decision to have an abortion.” With abortion raised to a fundamental right, strict scrutiny (strict in theory but usually fatal in fact) was applied to strike down the Fetal Heartbeat Act.
To be clear, I am not arguing that the Fetal Heartbeat Act is good policy, bad policy, or the perfect answer to how this state handles abortion. Undoubtedly, reasonable persons can make policy arguments that the first six to eight weeks is too short for a woman to decide to pursue abortion because she might not be aware of the pregnancy. (Justice Hearn made such a policy argument in the lead opinion but disguised it as “legal analysis.”) Perhaps a longer period, say, sixteen weeks is appropriate. But reasonable people can also make arguments that life begins at conception and abortion should be prohibited at all times. With apologies to Ronald Dworkin, there is no one right answer as a matter of legislative policy. This is an issue that the people’s representatives must wrestle with as they balance the interest of life versus the mother’s interest in self-actualization.
The key to the abortion debate is not Article I, Section 10, which the state supreme court focused upon, but Article I, Section 2 which prohibits any law “abridging the freedom of speech or of the press; or the right of the people peaceably to assemble and to petition the government or any department thereof for a redress of grievances.” Armed with this provision (our state counterpart of the federal First Amendment), South Carolinians can debate the merits of abortion among themselves, petition the General Assembly for changes in the law, and chart their own course on the abortion question.
“The virtue of a democratic system with a First Amendment is that it readily enables the people, over time, to be persuaded that what they took for granted is not so, and to change their laws accordingly,” Justice Antonin Scalia wrote in 1996 when dissenting from a case wherein the Court essentially forbade government-sponsored, single-gender educational institutions. “That system is destroyed if the smug assurances of each age are removed from the democratic process and written into the Constitution.”
So how did a red state collect Warren Court wannabes in the majority of the state’s highest court? South Carolina is one of two states in the union that utilizes a system of legislative elections for judges. After a public outcry that the only real qualification for a judgeship was service in the General Assembly, South Carolina added a Judicial Merit Selection Commission to screen judicial candidates. This was not a real change, but a smokescreen to make judicial selection appear less corrupt. The commission is appointed by leaders of the General Assembly and has ten members—six of whom are members of the legislature. The commission screens candidates and nominates up to three candidates for each judicial office. The screening process is often used by legislators to remove candidates from the field who might pose a significant challenge to a favored candidate. The powerbrokers in the legislature control the entire process just as they did prior to creation of the commission.
Unlike the federal system where—at least for the Supreme Court and appellate courts—Republicans seek to appoint originalist/strict constructionist judges and Democrats seek proponents of the Living Constitution, in South Carolina all that matters is whether you dove hunt with influential legislators and/or have a network of friends who are able to make campaign contributions. A candidate’s judicial philosophy is rarely considered.
With the growth of federal power and so many policy decisions made by Congress or the federal courts, perhaps the General Assembly can be forgiven for treating judicial appointments as a variant of Greek Rush on college campuses. What sort of judges sat on the state’s appellate courts did not really matter—until it did.
If the Dobbs decision marks the beginning of a New Federalism, South Carolinians need to rethink the way judges are selected. James Louis Petigru once quipped that “South Carolina is too small for a republic, but too large for an insane asylum.” Petigru was wrong on the first point inasmuch as South Carolina is a commonwealth exercising vast powers that were not delegated to the federal government. As for his second point, 32,020 square miles is likely too big for an asylum, but after Planned Parenthood South Atlantic I’d venture that the residents of an asylum—large or small—could do no worse than the General Assembly in choosing judges. Some system of popular elections, gubernatorial appointment, or a Missouri-Plan arrangement can only be an improvement.
In sum, Planned Parenthood South Atlantic has little to do with state constitutional law. It is judicial policymaking of the kind the U.S. Supreme Court rejected in Dobbs. It is a scandal that our General Assembly—dominated by a political party that claims to hold conservative principles—cannot staff the state’s highest court with judges content to apply the law rather than shape it to accord with their personal policy preferences. This result attests to the corruption in the state’s method of judicial selection and the need for reform.
This article was also published on FITSNews.com