The whirlwind was coming, and the whirlwind has now come. That it originated from South Carolina is perhaps the only surprise.
On January 5 in a 3-2 decision in Planned Parenthood South Atlantic v. South Carolina, the South Carolina Supreme Court struck down a statute passed by the South Carolina state legislature banning abortions after the detection of a fetal heartbeat on the ground that the South Carolina constitution protected a woman’s right to abortion. The decision is based entirely on state constitutional grounds and not appealable to the U.S. Supreme Court. The five justices that arrived at the decision were all appointed by the strongly Republican state legislature, and prior to elevation to the bench all but one were registered Republicans.
And yet, such were the justices that found a right to an abortion in the South Carolina constitution. So yes, that it was South Carolina that has first taken this step may be surprising. But that originalist jurisprudence led to this result is the least surprising thing about the decision.
Contributors to this blog have previously discussed the argument, framed through both natural law and originalist jurisprudence, that the text of the 14th Amendment should be understood to protect the life of an unborn person from deprivation of liberty without due process of law. But with respect to originalism, that argument only works because of the historical fact that the 14th Amendment was adopted at a time when a large majority of the states prohibited abortion. (Natural law jurisprudence does not suffer from that shortcoming.) Shortly after oral argument in Dobbs last December, I wrote here that should Roe be overturned on the basis that the Constitution was silent on abortion under originalist principles, then “the fight will be over state constitutional law…. Without the fetal personhood originalist argument readily usable in such contexts, the only morally persuasive way forward is not through a studied neutrality or reliance on state constitutional texts—it is through adherence to the foundations of natural law.” Without such adherence, I concluded, “we may have sown the wind of one limited victory, only to reap the whirlwind of dozens of future defeats.”
The whirlwind has arrived.
The decision is badly fractured, so it is difficult to tell what reasoning will be deemed most authoritative. The lead opinion of Justice Hearn striking down the law was joined by only one other justice, Chief Justice Beatty (the lone Democrat on the Court). Relying on Article I, Section 10 which protects “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,” Hearn finds a right to an abortion by virtue of the express adoption of a right to privacy in the text. Beatty wrote a separate concurring opinion asserting that the state’s equal protection and due process clauses would also grant a woman a right to an abortion. Justice Few concurred only in the result and wrote an idiosyncratic opinion that ultimately turns on how the State of South Carolina defined its compelling interests in the statute and what he believed to be a lack of factual foundation to support such interests. Justice Kittredge and James each dissented and agreed in large part that the scope of privacy did not encompass a woman’s right to an abortion, though they differed on the precise scope of the privacy right beyond the “search and seizures” also mentioned in the text of Article I, Section 10.
The striking fact is that all of the opinions (other than Chief Justice Beatty’s) are based on originalist principles: each opinion attempts to determine the intent of the drafters with respect to abortion at the time the provision was adopted, based on the historical context of the time of adoption. No opinion suggests, as the fetal personhood argument proposes on the basis of at least the U.S. Fourteenth Amendment, that the text of the South Carolina constitution demands that the person of the unborn child is entitled to not being deprived of life.
Instead, the originalists split. The basis for finding a right to abortion, Justice Hearn writes, is because when the right to privacy provision was included in a 1971 amendment as part of a general revision of the original 1895 text, it incorporated the expansive view of privacy already determined by the Supreme Court in Griswold in 1962, and which the Court would expand further in Roe just two years later. The opinions of Hearn, Few, Kittredge, and James spar over the composition and records of the commission that proposed the amendment, but it is simply true that the “history and tradition” around the meaning of “privacy” in 1971 was much less persuasive for the pro-life cause than the facts surrounding the 1868 ratification of the Fourteenth Amendment at the federal level. It is this fact that lays bare the problematic reliance on “history and tradition” that is the foundation of the Dobbs opinion, something I have written more about here.
Planned Parenthood South Atlantic confirms what I wrote after the Dobbs oral argument: Originalism is not our friend in most state constitutional law cases considering abortion. State constitutions have been written and rewritten much more frequently and recently than the U.S. Constitution, and at least 10 have express “right to privacy” provisions like South Carolina. It is only through adherence to the foundations of the natural law that the pro-life movement can mount a convincing argument based on the life of the unborn child. And as I wrote elsewhere on the day the Dobbs decision was issued, “State abortion restrictions should explicitly rely on the natural law framework that demonstrates abortion’s immorality. This does not need to be religiously framed. That abortion is wrong is knowable to natural reason. Make those reasons known to all, particularly the judges who will have to interpret and apply the laws later.” Intriguingly, Justice Few’s concurrence in the result suggests that had the state legislature forthrightly made a policy determination that life begins at conception, then the state’s invasion of privacy in the bill might well have survived the balancing of interests. But it did not do so, and he found that on the whole, if only the “potentiality of life” was the basis of the state’s interest, then the heartbeat bill could not survive.
There are questions to be asked going forward, and strategies to be revised. One point is that the opinions barely touch on Article I, Section 3 of the South Carolina Constitution, which protect the right of every “person” against deprivation of “life, liberty, and property without due process of law.” Only Justice Beatty does so, and he adopts the standard progressive interpretation of this clause that it does not protect unborn life. Why did the State not push harder on this textual hook? Instead, the opinions make much about the fact that an express right to privacy is effectively written into the state constitution, which is not the case in the U.S. constitution or in most other state constitutions. Should this have mattered as much, and can this be a basis for limiting the knock-on effect of the South Carolina decision for other state courts addressing other state constitutions?
But the biggest question of all must be this: Why should the State soft-pedal its compelling interests here? It is not the mere potentiality of life at stake; it is actual life. To borrow from the 1975 West German Constitutional Court decision on abortion, which found the state had an affirmative obligation to protect life in the womb, “Life, in the sense of historical existence of a human individual, exists according to definite biological-physiological knowledge, in any case, from the 14th day after conception (nidation, individuation). …The process of development which has begun at that point is a continuing process which exhibits no sharp demarcation and does not allow a precise division of the various steps of development of the human life. The process does not end even with birth; the phenomena of consciousness which are specific to the human personality, for example, appear for the first time a rather long time after birth. Therefore, the protection of [life in the German Grundgesetz] cannot be limited either to the ‘completed’ human being after birth or to the child about to be born which is independently capable of living. The right to life is guaranteed to everyone who ‘lives’; no distinction can be made here between various stages of the life developing itself before birth, or between unborn and born life.”
This is reasoning straight from the natural law, on which any sound jurisprudence must be based. If the pro-life movement does not forthrightly adopt the natural law, then South Carolina will not be its only loss.
The whirlwind is coming. Only laws and jurisprudence built on solid ground will endure it.