Planned Parenthood S. Atl. v. State

• Decision Date: 05 January 2023
• Docket Number: 28127,Appellate Case 2022-001062
• Court: South Carolina Supreme Court
• Parties: Planned Parenthood South Atlantic; Greenville Women's Clinic; Katherine Farris, M.D.; and Terry Buffkin, M.D., Petitioners, v. State of South Carolina; Alan McCrory Wilson, in his official capacity as Attorney General of the State of South Carolina; Edward Simmer, in his official capacity as Director of the South Carolina Department of Health and Environmental Control; Anne G. Cook, in her official capacity as President of the South Carolina Board of Medical Examiners; Stephen I. Schabel, in his official capacity as Vice President of the South Carolina Board of Medical Examiners; Ronald Januchowski, in his official capacity as Secretary of the South Carolina Board of Medical Examiners; George S. Dilts, in his official capacity as a Member of the South Carolina Board of Medical Examiners; Dion Franga, in his official capacity as a Member of the South Carolina Board of Medical Examiners; Richard Howell, in his official capacity as a Member of the South Carolina Board of Medical Examiners; Theresa Mills-Floyd, in her official capacity as a Member of the South Carolina Board of Medical Examiners; Jennifer R. Root, in her official capacity as a Member of the South Carolina Board of Medical Examiners; Christopher C. Wright, in his official capacity as a Member of the South Carolina Board of Medical Examiners; Scarlett Anne Wilson, in her official capacity as Solicitor for South Carolina's 9th Judicial Circuit; Byron E. Gipson, in his official capacity as Solicitor for South Carolina's 5th Judicial Circuit; and William Walter Wilkins III, in his official capacity as Solicitor for South Carolina's 13th Judicial Circuit, Respondents, & G. Murrell Smith, Jr., in his official capacity as Speaker of the South Carolina House of Representatives; Thomas C. Alexander, in his official capacity as President of the South Carolina Senate; and Henry Dargan McMaster, in his official capacity as Governor of the State of South Carolina, Respondents-Intervenors.

Planned Parenthood South Atlantic; Greenville Women's Clinic; Katherine Farris, M.D.; and Terry Buffkin, M.D., Petitioners, v. State of South Carolina; Alan McCrory Wilson, in his official capacity as Attorney General of the State of South Carolina; Edward Simmer, in his official capacity as Director of the South Carolina Department of Health and Environmental Control; Anne G. Cook, in her official capacity as President of the South Carolina Board of Medical Examiners; Stephen I. Schabel, in his official capacity as Vice President of the South Carolina Board of Medical Examiners; Ronald Januchowski, in his official capacity as Secretary of the South Carolina Board of Medical Examiners; George S. Dilts, in his official capacity as a Member of the South Carolina Board of Medical Examiners; Dion Franga, in his official capacity as a Member of the South Carolina Board of Medical Examiners; Richard Howell, in his official capacity as a Member of the South Carolina Board of Medical Examiners; Theresa Mills-Floyd, in her official capacity as a Member of the South Carolina Board of Medical Examiners; Jennifer R. Root, in her official capacity as a Member of the South Carolina Board of Medical Examiners; Christopher C. Wright, in his official capacity as a Member of the South Carolina Board of Medical Examiners; Scarlett Anne Wilson, in her official capacity as Solicitor for South Carolina's 9th Judicial Circuit; Byron E. Gipson, in his official capacity as Solicitor for South Carolina's 5th Judicial Circuit; and William Walter Wilkins III, in his official capacity as Solicitor for South Carolina's 13th Judicial Circuit, Respondents, & G. Murrell Smith, Jr., in his official capacity as Speaker of the South Carolina House of Representatives; Thomas C. Alexander, in his official capacity as President of the South Carolina Senate; and Henry Dargan McMaster, in his official capacity as Governor of the State of South Carolina, Respondents-Intervenors.

No. 28127

Appellate Case No. 2022-001062

Supreme Court of South Carolina

January 5, 2023

IN THE COURT'S ORIGINAL JURISDICTION

M Malissa Burnette, Kathleen McColl McDaniel, and Grant Burnette LeFever, of Burnette Shutt &McDaniel, PA, of Columbia, for Petitioners.

Julia A. Murray and Hannah Swanson, of Washington, DC; for Petitioners Planned Parenthood South Atlantic and Katherine Farris, M.D.

Genevieve Scott and Astrid Ackerman, of New York, NY; for Petitioner Greenville Women's Clinic and Terry Buffkin M.D.

Jacquelyn S. Dickman, Ashley Caroline Biggers, and William Marshall Taylor, Jr., of Columbia, for Respondent Edward Simmer, in his official capacity as Director of the South Carolina Department of Health and Environmental Control.

Robert E. Horner and Erin G. Baldwin, of Columbia, for Respondents Anne G. Cook, in her official capacity as President of the South Carolina Board of Medical Examiners; Stephen I. Schabel, in his official capacity as Vice President of the South Carolina Board of Medical Examiners; Ronald Januchowski, in his official capacity as Secretary of the South Carolina Board of Medical Examiners; George S. Dilts, in his official capacity as a Member of the South Carolina Board of Medical Examiners; Dion Franga, in his official capacity as a Member of the South Carolina Board of Medical

Examiners; Richard Howell, in his official capacity as a Member of the South Carolina Board of Medical

Examiners; Theresa Mills-Floyd, in her official capacity as a Member of the South Carolina Board of Medical Examiners; Jennifer R. Root, in her official capacity as a Member of the South Carolina Board of Medical Examiners; and Christopher C. Wright, in his official capacity as a Member of the South Carolina Board of Medical Examiners.

Robert David Garfield and Steven R. Spreeuwers, of Crowe Lafave Garfield &Bagley, LLC, of Columbia, for Respondent Byron E. Gipson, in his official capacity as Solicitor for South Carolina's 5th Judicial Circuit.

Amanda K. Dudgeon and James Matthew Johnson, of Chandler &Dudgeon, LLC, of Charleston, for Respondent Scarlett Anne Wilson, in her official capacity as Solicitor for South Carolina's 9th Judicial Circuit.

Attorney General Alan McCrory Wilson, Solicitor General Robert D. Cook, Deputy Solicitor General J. Emory Smith, Jr., and Assistant Deputy Solicitor General Thomas Tyler Hydrick, all of Columbia, for Respondents the State of South Carolina, Alan McCrory Wilson, in his official capacity as Attorney General of the State of South Carolina, and William Walter Wilkins III, in his official capacity as Solicitor for South Carolina's 13th Judicial Circuit.

Kevin A. Hall and Matthew Todd Carroll, of Womble Bond Dickinson LLP, of Columbia, for Respondents-Intervenors G. Murrell Smith, Jr., in his official capacity as Speaker of the South Carolina House of Representatives, and Thomas C. Alexander, in his official capacity as President of the South Carolina Senate.

Chief Legal Counsel Thomas Ashley Limehouse, Jr., Senior Legal Counsel William Grayson Lambert, and Deputy Legal Counsel Erica Wells Shedd, of Columbia, for Respondent-Intervenor Henry Dargan McMaster, in his official capacity as Governor of the State of South Carolina.

Randall Scott Hiller, of Randall S. Hiller, P.A., of Greenville; Kimberly A. Parker, of Wilmer Cutler Pickering Hale and Dorr, LLP, of Washington, DC; and Jessica Notebaert, of Wilmer Cutler Pickering Hale and Dorr, LLP, of Boston, MA; all for Amici Curiae American College of Obstetricians and Gynecologists, American Medical Association, American Academy of Family Physicians, American Academy of Pediatrics, American College of Physicians, National Hispanic Medical Association, and Society for Maternal-Fetal Medicine.

Brennan Tyler Brooks, of Law Office of B. Tyler Brooks, PLLC, of Greensboro, NC, and Matthew Staver, of Liberty Counsel, of Maitland, FL; for Amici Curiae Frederick Douglass Foundation and National Hispanic Christian Leadership Conference.

Andrew C. Nichols, of Charis Lex P.C., of Reston, VA; and Timothy J. Newton, of Murphy &Grantland, P.A.; of Columbia, for Amicus Curiae Christian Medical and Dental Associations.

Barry L. Johnson and William Lamar Johnson, II, of Johnson &Davis, P.A., of Bluffton, for Amicus Curiae American Center for Law & Justice.

Samuel Darryl Harms, III, of Greenville, for Amicus Curiae Elliot Institute.

Henry Wilkins Frampton, IV, and Denise M. Harle, of Leesburg, VA; for Amici Curiae American Association of Pro-Life Obstetricians and Gynecologists and Dr. Christine Hemphill.

Larry Shawn Sullivan, of Sullivan Law Group, LLC, of Myrtle Beach, and John G. Knepper, of Law Office of John G. Knepper, LLC, of Cheyenne, WY; for Amicus Curiae Alliance for Hippocratic Medicine.

HEARN JUSTICE.

Today we consider whether The Fetal Heartbeat and Protection from Abortion Act ("the Act") violates a woman's constitutional right to privacy, as guaranteed in article I, section 10 of the South Carolina Constitution. We hold that the decision to terminate a pregnancy rests upon the utmost personal and private considerations imaginable, and implicates a woman's right to privacy. While this right is not absolute, and must be balanced against the State's interest in protecting unborn life, this Act, which severely limits-and in many instances completely forecloses-abortion, is an unreasonable restriction upon a woman's right to privacy and is therefore unconstitutional.^[1]

FACTUAL/PROCEDURAL BACKGROUND

In 2021, the General Assembly passed the Act, which prohibits an abortion after around six weeks gestation. See S.C Code Ann. § 44-41-680 (Supp. 2022). This is before many women-excluding those who are trying to become pregnant and are therefore closely monitoring their menstrual cycles-even know they are pregnant. See Amici Curiae Br. of Am. Coll. of Obstetricians &Gynecologists, et. al. The Act requires physicians to scan for "cardiac activity.. .within the gestational sac[,]" record the results, and ask the patient if she would like to listen. See S.C. Code Ann. §§ 44-41-610 and 44-41-640. If the defined activity^[2] is detected, abortion is prohibited.^[3] Physicians who violate the Act must pay a ten-thousand dollar fine and face imprisonment of up to two years. S.C. Code Ann. § 44-41-680. In passing this legislation, the General Assembly made these findings:

(1) as many as thirty percent of natural pregnancies end in spontaneous miscarriage;

(2) fewer than five percent of all natural pregnancies end in spontaneous miscarriage after the detection of a fetal heartbeat;

(3) over ninety percent of in vitro pregnancies survive the first trimester if a fetal heartbeat is detected;

(4) nearly ninety percent of in vitro pregnancies do not survive the first trimester if a fetal heartbeat is not detected;

(5) a fetal heartbeat is a key medical predictor that an unborn human individual will reach live birth; (6) a fetal heartbeat begins at a biologically identifiable moment in time, normally when the fetal heart is formed in the gestational sac;

(7) the State of South Carolina has legitimate interests from the outset of a pregnancy in protecting the health of the pregnant woman and the life of the unborn child who may be born; and

(8) in 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.

South Carolina Fetal Heartbeat and Protection from Abortion Act Act No. 1, 2021 S.C. Acts 2, 3 §2. Petitioner Planned Parenthood South Atlantic is a non-profit organization dedicated to providing a wide range of medical care, including therapeutic options to terminate a pregnancy. Petitioners Katherine Farris and Terry Buffkin are physicians...