Yesterday’s 3-2 ruling by the South Carolina supreme court against the state’s heartbeat law on abortion turns out to be much more interesting than I expected, largely because there is a sharp division of opinion among the three justices that combine to invalidate the law. There is no majority opinion in the case, and Justice John Cannon Few explains his decisive third vote in an opinion that strongly suggests that he would uphold a ban on abortion from conception.
South Carolina’s heartbeat law generally prohibits abortion after the embryo’s heartbeat, or “cardiac activity,” is detectable. It provides exceptions for rape, incest, health, and fetal anomaly.
In what she identifies as the “lead opinion,” Justice Kaye Gorenflo Hearn opines that the heartbeat law violates a woman’s constitutional right to privacy, as guaranteed in article I, section 10, of the state constitution. That provision states: “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.”
The “unreasonable invasions of privacy” phrase was added via a constitutional amendment in 1971. Hearn argues that “this right to privacy was not created out of whole cloth in 1971, but instead was recognized as having always existed.” (Emphasis in original.) Given her position, you’d think that she would be obligated to show that the pre-existing right to privacy never allowed the state to enact bars on abortion as early as the heartbeat law does. But she never undertakes that inquiry, which, given the state’s long history of banning abortion from conception, wouldn’t turn out well for her.
Hearn posits that the right to privacy requires that any limitation on a woman’s decision to have an abortion be subject to strict scrutiny. (So much for “unreasonable invasions of privacy.”) Further, any limitation on such a decision “must afford a woman sufficient time to determine she is pregnant and to take reasonable steps to terminate that pregnancy.” The heartbeat law fails to do so, in her view.
Chief justice Donald W. Beatty starts off his separate opinion by embracing one of the stupidest sentences ever uttered in a Supreme Court opinion, by Justice Brennan in Eisenstadt v. Baird (1972):
If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child. [Beatty’s italics.]
Ah, yes, a right of privacy is meaningless unless it encompasses abortion.
Beatty’s opinion doesn’t get better from there. At the same time that he purports to decry the “perpetuation of misinformation” on abortion, he falsely contends that “What actually exists at [the six-week] state of pregnancy is an embryo containing an amorphous collection of cells.” (Emphasis added.) To quote Johns Hopkins Medicine, at that stage:
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All major systems and organs begin to form.
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The embryo looks like a tadpole.
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The neural tube (which becomes the brain and spinal cord), the digestive system, and the heart and circulatory system begin to form.
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The beginnings of the eyes and ears are developing.
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Tiny limb buds appear, which will develop into arms and legs.
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The heart is beating.
Beatty goes on to claim that “When life begins is a theoretical and religious question” rather than a biological one.
Beatty would strike down the heartbeat law on lots of other grounds in addition to a right to privacy, including equal protection, procedural due process, and substantive due process. His opinion is replete with strident rhetoric and confusions, though he does somehow manage to get one thing right: “Men do not get pregnant.” (His italics.)
Justice Few’s opinion (pp. 61-91) is the most interesting, and in some respects the most puzzling, of the three. Few goes badly astray on the major point in his opinion.
As one of its legislative findings supporting the heartbeat law, the General Assembly stated: “[I]n order to make an informed choice about whether to continue a pregnancy, a pregnant woman has a legitimate interest in knowing the likelihood of the human fetus surviving to full-term birth based upon the presence of a fetal heartbeat.” Few contends that the General Assembly thereby “codifi[ed]” a woman’s right “to make an informed choice about whether to continue a pregnancy” as a “countervailing interest” that cuts against the state’s interest in protecting the lives of the unborn. Few finds it “difficult to understand how the General Assembly’s recited interest of ‘informed choice’ is advanced by” the heartbeat law, as he thinks that a pregnant woman’s “opportunity to ‘make an informed choice’ has already expired” by the time she can hear the fetal heartbeat. But Few overlooks the options that such a woman would have to seek an abortion when any of the exceptions under the heartbeat law applied, or in another state, or to pursue an illegal abortion.*
Based on his misunderstanding of this legislative finding, Few faults the General Assembly for not setting forth any findings on what he mistakenly thinks is “the key question of whether a substantial percentage of women cannot know they are pregnant in time to engage in sufficient deliberation and prayer, have meaningful discussions, and then make timely arrangements to have an abortion.” He concludes that “the denial of meaningful choice to women arising from the arbitrary failure to even consider the extent to which that choice is denied is unreasonable.”
At the same time, Few indicates that he would be much more strongly disposed to approve a ban on abortion from conception:
[I]f the State were to pass a total ban on abortion—despite a complete invasion of a pregnant woman’s right to privacy—the privacy invasion might be reasonable under article I, section 10, because “human life” has no countervailing interest; human life simply must be preserved. But the General Assembly failed to pass the personhood bills, and this year the Senate refused to pass H. 5399. Thus, despite consistent efforts, there is no legislative policy determination that human life— “personhood”—begins at conception, and there is no such State interest that justifies enacting the six-week [heartbeat] bill.
He also explicitly disagrees with Hearn that strict scrutiny is the correct standard of review:
Our standard for reviewing the constitutionality of a statute under this provision is whether the privacy restriction is unreasonable as a matter of law. While this “unreasonableness” standard may be more strict than a rational relationship test, it is certainly not a “strict scrutiny” analysis.
Much of the back and forth between the justices in the majority and the two dissenters concerns what weight, if any, to give to the final report and recommendations of the legislative committee (the so-called West Committee) that proposed the “unreasonable invasions of privacy” amendment. Whatever one’s views on that, I see no basis for thinking that the original public meaning of the amendment would have provided any protection against restrictions on abortion.
* 9:15 p.m.: I modified this sentence to add the first option.