THE STATE OF SOUTH CAROLINA

IN THE SUPREME COURT

IN ITS ORIGINAL JURISDICTION

Appellate Case No. 2022-001062

PLANNED PARENTHOOD SOUTH ATLANTIC; GREENVILLE WOMEN’S CLINIC;

KATHERINE FARRIS, M.D.; and TERRY BUFFKIN, M.D. ...................................... Petitioners,

v.

STATE OF SOUTH CAROLINA; ALAN WILSON, in his official capacity as Attorney General
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; JIM C. CHOW, in his
official capacity as a Member 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;
JEFFREY A. WALSH, in his 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 A. 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,

and

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 MCMASTER, in his official capacity as Governor of
the State of South Carolina .......................................................... Respondents–Intervenors.

GOVERNOR MCMASTER’S
PETITION FOR REHEARING
Thomas A. Limehouse, Jr.
Chief Legal Counsel
Wm. Grayson Lambert
Senior Legal Counsel
Erica Wells Shedd
Deputy Legal Counsel
OFFICE OF THE GOVERNOR
South Carolina State House
1100 Gervais Street
Columbia, South Carolina 29201
(803) 734-2100
[email protected]
[email protected]
[email protected]

Counsel for Governor McMaster

 TABLE OF CONTENTS

TABLE OF AUTHORITIES ................................................................................................................ ii

INTRODUCTION ................................................................................................................................ 1

STANDARD OF REVIEW .................................................................................................................. 2

ARGUMENT ........................................................................................................................................ 3

I. The Lead Opinion misapprehends the scope of “privacy” in article I, section 10 by

overlooking the well-established standard for interpreting the Constitution ....................... 3
A. The Lead Opinion rewrites the law on constitutional interpretation .............................. 3
B. The Lead Opinion and the Concurring Opinion create at least two other problems in
South Carolina law............................................................................................................. 9
II. The Opinion Concurring in the Judgment has three flaws that misapprehend precedent
and warrant reconsideration................................................................................................... 13
A. The Court must look to what South Carolinians understood “privacy” to mean......... 13
B. “Privacy” does not incorporate a statutory “opportunity” to have an abortion ........... 16
C. The Opinion Concurring in the Judgment wrongly holds any lack of evidence about
when women “can know” they are pregnant against the Act, not against Petitioners
and their facial challenge ................................................................................................. 18
III. The Lead Opinion’s footnote on severability is inconsistent with this Court’s
precedent ................................................................................................................................. 22
CONCLUSION ................................................................................................................................... 26
 TABLE OF AUTHORITIES

Cases

Ansel v. Means,
171 S.C. 432, 172 S.E. 434 (1934) ............................................................................................. 6

Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n,

576 U.S. 787 (2015) .................................................................................................................... 4

Bailey v. S.C. State Election Comm’n,

430 S.C. 268, 844 S.E.2d 390 (2020) ......................................................................................... 8

Bauer v. S.C. State Hous. Auth.,

271 S.C. 219, 246 S.E.2d 869 (1978) ....................................................................................... 22

Bodman v. State,
403 S.C. 60, 742 S.E.2d 363 (2013) ..................................................................................... 7, 18

Books-A-Million, Inc. v. S.C. Dep’t of Revenue,

437 S.C. 640, 880 S.E.2d 476 (2022) ....................................................................................... 11

City of Rock Hill v. Harris,

391 S.C. 149, 705 S.E.2d 53 (2011) ........................................................................................... 6

Cnty. of Florence v. W. Florence Fire Dist.,

422 S.C. 316, 811 S.E.2d 770 (2018) ....................................................................................... 15

Curtis v. State,
345 S.C. 557, 549 S.E.2d 591 (2001) ................................................................................... 7, 24

Eisenstadt v. Baird,
405 U.S. 438 (1972) .................................................................................................................... 5

Fulton v. City of Philadelphia,

141 S. Ct. 1868 (2021) .............................................................................................................. 15

Gaud v. Walker,
214 S.C. 451, 53 S.E.2d 316 (1949) ........................................................................................... 8

Gonzales v. Carhart,
550 U.S. 124 (2007) .............................................................................................................. 5, 12

Hill v. Colorado,
530 U.S. 703 (2000) .................................................................................................................. 26

ii
Hodges v. Rainey,
341 S.C. 79, 533 S.E.2d 578 (2000) ................................................................................... 23, 24

Joytime Distribs. & Amusement Co. v. State,

338 S.C. 634, 528 S.E.2d 647 (1999) ....................................................................................... 23

June Med. Servs. L.L.C. v. Russo,

140 S. Ct. 2103 (2020) .............................................................................................................. 25

Lawrence v. Texas,
539 U.S. 558 (2003) .............................................................................................................. 9, 16

Madsen v. Women’s Health Ctr., Inc.,

512 U.S. 753 (1994) .................................................................................................................. 26

McColl v. Marlboro Graded Sch. Dist. No. 10,

143 S.C. 120, 141 S.E. 265 (1928) ............................................................................................. 8

McCorvey v. Hill,
385 F.3d 846 (5th Cir. 2004) .................................................................................................... 25

Miller v. Farr,
243 S.C. 342, 133 S.E.2d 838 (1963) ......................................................................................... 6

Milton v. Richland Cnty.,

No. 2014-000580, 2015 WL 4642832 (S.C. Aug. 5, 2015)...................................................... 11

N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen,

142 S. Ct. 2111 (2022) ................................................................................................................ 8

Pinckney v. Peeler,
434 S.C. 272, 862 S.E.2d 906 (2021) ....................................................................................... 23

Planned Parenthood of Se. Pa. v. Casey,

505 U.S. 833 (1992) .............................................................................................................. 5, 25

Planned Parenthood S. Atl. v. State,

No. 2022-001062, 2023 WL 107972 (S.C. Jan. 5, 2023) .................................................. passim

Protestant Episcopal Church in Diocese of S.C. v. Episcopal Church,

No. 2020-000986, 2022 WL 3560664 (S.C. Aug. 17, 2022)...................................................... 3

Richards v. City of Columbia,

227 S.C. 538, 88 S.E.2d 683 (1955) ................................................................................... 21, 22

iii
Richardson on behalf of 15th Cir. Drug Enf’t Unit v. Twenty Thousand Seven Hundred Seventy-
One & 00/100 Dollars,
437 S.C. 290, 878 S.E.2d 868 (2022) ....................................................................................... 20

Richland Cnty. Sch. Dist. 2 v. Lucas,

434 S.C. 299, 862 S.E.2d 920 (2021) ......................................................................................... 4

Roe v. Wade,
410 U.S. 179 (1973) ................................................................................................................ 2, 5

S.C. Coastal Conservation League v. Dominion Energy S.C., Inc.,

432 S.C. 217, 851 S.E.2d 699 (2020) ......................................................................................... 3

Skinner v. Oklahoma,
316 U.S. 535 (1942) .................................................................................................................... 4

State v. Dickey,
394 S.C. 491, 716 S.E.2d 97 (2011) ......................................................................................... 21

State v. Forrester,
343 S.C. 637, 541 S.E.2d 837 (2001) ....................................................................................... 13

State v. Jones,
344 S.C. 48, 543 S.E.2d 541 (2001) ......................................................................................... 18

State v. Lawrence,
261 S.C. 18, 198 S.E.2d 253 (1973) ......................................................................................... 15

State v. Long, 4
06 S.C. 511, 753 S.E.2d 425 (2014) ............................................................................. 3, 5, 8, 14

State v. Steadman,
214 S.C. 1, 51 S.E.2d 91 (1948) ................................................................................... 11, 12, 17

State v. Steadman,
216 S.C. 579, 59 S.E.2d 168 (1950) ......................................................................................... 17

Stenberg v. Carhart,
530 U.S. 914 (2000) .................................................................................................................. 25

Thornburgh v. Am. Coll. of Obstetricians & Gynecologists,

476 U.S. 747 (1986) .................................................................................................................. 26

W. Ala. Women’s Ctr. v. Williamson,

900 F.3d 1310 (11th Cir. 2018) ................................................................................................ 26

iv
Washington v. Glucksberg,
521 U.S. 702 (1997) .................................................................................................................... 4

Whole Woman’s Health v. Hellerstedt,

136 S. Ct. 2292 (2016) .............................................................................................................. 25

Statutes

S.C. Criminal Code § 1112 (1942) ............................................................................................... 17

S.C. Criminal Code § 1113 (1942) ............................................................................................... 17

S.C. Code Ann. § 16-15-90 ............................................................................................................. 9

S.C. Code Ann. § 16-3-1090 ........................................................................................................... 9

S.C. Code Ann. § 16-3-20(C) ....................................................................................................... 20

S.C. Code Ann. § 44-41-420 ......................................................................................................... 24

S.C. Code Ann. § 44-41-610(6) .............................................................................................. 10, 22

S.C. Code Ann. § 44-41-630(1) .................................................................................................... 20

S.C. Code Ann. § 44-41-740 ......................................................................................................... 25

S.C. Code Ann. § 44-53-370(d) ...................................................................................................... 9

Other Authorities

1970 S.C. Acts No. 821 .................................................................................................................. 8

1974 S.C. Acts No. 1215 .............................................................................................................. 15

2016 S.C. Acts No. 183 ................................................................................................................ 24

2021 S.C. Acts No. 1 ............................................................................................................. passim

David F. Forte, Life, Heartbeat, Birth: A Medical Basis for Reform,

74 Ohio St. L.J. 121 (2013)....................................................................................................... 20

Johns Hopkins Medicine, The First Trimester ............................................................................. 11

Planned Parenthood, Emergency Contraception .......................................................................... 21

v
Planned Parenthood, Pregnancy Tests .......................................................................................... 21

Planned Parenthood, What happens in the second month of pregnancy?..................................... 10

WebArchive, Planned Parenthood, What happens in the second month of pregnancy? (July 25,
2022) ......................................................................................................................................... 10

Rules

Rule 210(h), SCACR .................................................................................................................... 11

Rule 221(a), SCACR ...................................................................................................................... 3

Rule 401, SCRE .............................................................................................................................. 6

Constitutional Provisions

S.C. Const. art. I, § 1 ....................................................................................................................... 8

vi
 INTRODUCTION

The South Carolina Fetal Heartbeat and Protection from Abortion Act, 2021 S.C. Acts No.

1, protects unborn children who have a heartbeat. Even Petitioners—unlike several opinions of

this Court—do not dispute that these children are living human beings. Yet a majority of this Court

declared that Act is unconstitutional under article I, section 10 of the South Carolina Constitution.

Governor McMaster, under Rule 221(a), SCACR, petitions for rehearing because the Court’s

decision overlooks and misapprehends fundamental and foundational principles of constitutional

interpretation and the historical evidence in the record, while simultaneously discounting the

presumption of constitutionality afforded legislative acts, shifting the burden of proof that applies

in all litigation, and excusing Petitioners’ failure to satisfy the standard for facial constitutional

challenges.

The Court’s five opinions span 156 pages. There is much that can (and should) be said in

response to those opinions, but space constraints only permit the Governor to address a few. 1

Accordingly, this Petition focuses on three critical flaws that, notwithstanding the other errors in

the opinions, warrant rehearing. First, the Lead Opinion disregards two centuries of precedent

about the framers’ and people’s intent controlling how the Constitution is interpreted and instead

adopts a form of living constitutionalism that is contrary to established law and inconsistent with

the philosophical underpinnings of our constitutional republic—even while denying the people

1
As just one example of something the Petition lacks space to address, the Chief Justice’s
Concurring Opinion posits that the State’s “compelling interest in regulating and banning
abortion” comes at “viability.” Planned Parenthood S. Atl. v. State (“PPSA”), No. 2022-001062,
2023 WL 107972, at *23 (S.C. Jan. 5, 2023) (Beatty, C.J., concurring). This assertion never
wrestles with the fact that “the viability rule was created outside the ordinary course of litigation,
is and always has been completely unreasoned, and fails to take account of state interests since
recognized as legitimate.” Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2312 (2022)
(Roberts, C.J., concurring in the judgment).
and their representatives the right to update their laws to reflect advances in medical knowledge

about unborn life. Second, the Opinion Concurring in the Judgment expands the scope of how to

determine what “privacy” interests are protected by article I, section 10; misapprehends the State’s

history of regulating abortion; and mistakenly holds any perceived lack of evidence against the

Act rather than against Petitioners and their flawed facial challenge. Third, and independent of

those first two issues, the Lead Opinion defies this Court’s previous (and recent) pronouncements

on severability and statutory interpretation. Under the Court’s consistent line of cases, the Act’s

strongly worded severability clause leaves no doubt that the General Assembly intended for any

part of the Act not declared unconstitutional to remain in effect. Petitioners have never argued that

requiring an abortionist to let a mother hear her unborn child’s heartbeat is, standing alone,

unconstitutional. The Court’s contrary conclusion disregards the plain language of the law.

Abortion is, no doubt, a contentious issue. The Court’s opinions demonstrate as much. But

the contentiousness of the issue is no reason to rewrite state constitutional law. Yet that is what a

majority of this Court has done. The great irony of the Court’s action is that, even as it invents a

novel right to privacy for elective abortions never contemplated by the people, it denies the people

acting through the appropriate body—the General Assembly—the ability to update our State’s

laws to account for modern medical and scientific knowledge that life starts much earlier than

contemplated by the antiquated concept of “quickening.” The Court thus imposes its own beliefs

about fetal life, finding the people’s views “unreasonable.” That “exercise of raw judicial power,”

Roe v. Wade, 410 U.S. 179, 222 (1973) (White, J., dissenting), sent the U.S. Supreme Court astray

half a century ago and is contrary to South Carolina’s republican system of government and the

separation of powers required by the Constitution. The Court should grant the Petition.

2
 STANDARD OF REVIEW

A petition for rehearing should be granted whenever it shows that the Court has

“overlooked” or “misapprehended” a point of fact or law. Rule 221(a), SCACR; see also

Protestant Episcopal Church in Diocese of S.C. v. Episcopal Church, No. 2020-000986, 2022 WL

3560664, at *1 (S.C. Aug. 17, 2022) (granting petition for rehearing in part); S.C. Coastal

Conservation League v. Dominion Energy S.C., Inc., 432 S.C. 217, 219, 851 S.E.2d 699, 700

(2020) (granting petition for rehearing).

ARGUMENT

I. The Lead Opinion misapprehends the scope of “privacy” in article I, section 10 by

overlooking the well-established standard for interpreting the Constitution.

A. The Lead Opinion rewrites the law on constitutional interpretation.

Accepting for sake of argument that the Lead Opinion is correct that the privacy provision

in article I, section 10 extends beyond the search-and-seizure context, see PPSA, 2023 WL 107972,

at *3 (Lead Opinion); see also id. at *21 (Beatty, C.J., concurring), the Court still erred in holding

that it encompasses elective abortion. Where the Lead Opinion goes astray is in its approach to

answering what article I, section 10’s protection against “unreasonable invasions of privacy”

covers. This Court has for almost two centuries held that the Constitution means what the “framers

and the people who adopted” it intended and understood it to mean. State v. Long, 406 S.C. 511,

514, 753 S.E.2d 425, 426 (2014). Despite this long-standing and well-established caselaw, the

Lead Opinion lacks any citation to any South Carolina evidence showing that anyone understood

article I, section 10 to reach the issue of, or enshrine a right to, abortion, which was largely

prohibited at the time. Rather than point to such evidence, the Lead Opinion does five other

things—none of which is sufficient under Long and that line of cases to justify the Court’s

conclusion that article I, section 10 provides or protects a right to abortion.

3
 First, the Lead Opinion looks to the law of privacy generally, beginning with Louis

Brandeis’s famous Harvard Law Review article in 1890 and briefly tracing the development of

privacy-related tort claims. See PPSA, 2023 WL 107972, at *4 (Lead Opinion). But this general

concept of privacy means little here. At the same time this law of privacy was developing, aborting

an unborn child was illegal unless “necessary to preserve [the mother’s] life or the life of such

child.” 1883 S.C. Acts No. 354, § 1; see also Dobbs, 142 S. Ct. at 2285–300 (majority opinion)

(cataloguing abortion laws across the United States before 1973). Thus, no one would have

understood a protection against “unreasonable invasions of privacy” to require that elective

abortion be legal. To treat privacy as encompassing abortion now is tantamount to a “magic trick”

of reinterpreting constitutional terms to reach the policy preferences of the judiciary. Ariz. State

Legislature v. Ariz. Indep. Redistricting Comm’n, 576 U.S. 787, 825 (2015) (Roberts, C.J.,

dissenting); cf. Washington v. Glucksberg, 521 U.S. 702, 720 (1997) (courts must “exercise the

utmost care whenever [they] are asked to break new ground in [substantive due process], lest the

liberty protected by the Due Process Clause be subtly transformed into the policy preferences of

the Members of this Court”); cf. Richland Cnty. Sch. Dist. 2 v. Lucas, 434 S.C. 299, 306–07, 862

S.E.2d 920, 924 (2021) (“our role in this dispute is limited, and we do not sit as a superlegislature to

second guess the wisdom or folly of decisions of the General Assembly” (cleaned up)).

Second, the Lead Opinion looks to inapposite federal case law. See PPSA, 2023 WL

107972, at *4; see also id. at *17–*18 (Beatty, C.J., concurring). Cases like Skinner v. Oklahoma,

316 U.S. 535 (1942), undermine the Lead Opinion. Skinner protected “procreation,” which the

U.S. Supreme Court observed was “fundamental to the very existence and survival of the race.”

Id. at 541. In other words, that is a case about having—not aborting—children. Cf. PPSA, 2023

WL 107972, at *55 (Kittredge, J., dissenting) (“Prior to the 1970s . . . no case had extended the

4
concept of privacy to abortion.”). The same is true of Eisenstadt v. Baird, in which the Court spoke

of “the decision whether to bear or beget a child,” as the Court discussed contraception (and

whether a child is conceived), not abortion (whether a pregnancy is terminated). 405 U.S. 438, 453

(1972). Meanwhile, even the U.S. Supreme Court in Roe acknowledged that abortion “is inherently

different from marital intimacy, or bedroom possession of obscene material, or marriage, or

procreation,” 410 U.S. at 159, thereby distinguishing not only Skinner and Eisenstadt but also

Griswold v. Connecticut, 381 U.S. 479 (1965); cf. PPSA, 2023 WL 107972, at *51 (“What makes

abortion different is the presence of the unborn child.”). Finally, to the extent the Lead Opinion

relies on Roe for the meaning of privacy, the holding there has, at most, limited value in

determining the meaning of article I, section 10 because it was decided after South Carolina

amended article I, section 10 and because Roe does not contain a single reference to South

Carolina. Nor does this reliance on Roe account for the fact that the U.S. Supreme Court later, in

Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), “abandoned

any reliance on a privacy right,” Dobbs, 142 S. Ct. at 2271, and that Justice Ginsburg even admitted

that “legal challenges to undue restrictions on abortion procedures do not seek to vindicate some

generalized notion of privacy,” Gonzales v. Carhart, 550 U.S. 124, 172 (2007) (dissenting

opinion).

Third, the Lead Opinion relies on cases from other States. See PPSA, 2023 WL 107972, at

*6–*8 (Lead Opinion); see also id. at *22 n.31 (Beatty, C.J., concurring). In addition to the myriad

distinctions that the dissents aptly draw with those cases, see id. at *69 (Kittredge, J., dissenting);

id. at *73–*74 (James, J., dissenting), the Lead Opinion never explains how those decisions shed

any light on what the “framers and the people who adopted” article I, section 10 understood that

provision to mean, Long, 406 S.C. at 514, 753 S.E.2d at 426.

5
 Fourth, the Lead Opinion declares the West Committee’s notes are “irrelevant.” PPSA,

2023 WL 107972, at *5 (Lead Opinion); see also id. at *19 (Beatty, C.J., concurring) (accusing

the parties of “rais[ing] the West Study Committee to an undeserved level of importance”). That

is illogical. The Court’s ultimate aim has always been to determine the intent of the framers and

the people who enacted a constitutional provision. See, e.g., City of Rock Hill v. Harris, 391 S.C.

149, 153, 705 S.E.2d 53, 55 (2011); Miller v. Farr, 243 S.C. 342, 347, 133 S.E.2d 838, 841 (1963).

What a committee created by the General Assembly and composed in part of legislators said about

a particular provision has at least some bearing on what the General Assembly as a whole and the

people thought that provision meant. See, e.g., Ansel v. Means, 171 S.C. 432, 172 S.E. 434, 436

(1934) (“The polestar in the construction of Constitutions . . . is the intention of the makers and

adopters.”); cf. Rule 401, SCRE. Those committee notes may not be dispositive, but they are at

least relevant to the Court’s analysis and more informative than out-of-state cases. See Williams v.

Morris, 320 S.C. 196, 203, 464 S.E.2d 97, 100 (1995) (citing the West Committee’s Report as

“evidence” regarding the legislative understanding of a constitutional provision); cf. McIntyre v.

Sec. Comm’r of S.C., 425 S.C. 439, 447, 823 S.E.2d 193, 197 (Ct. App. 2018) (Hill, J.)

(“The West Committee was prophetic.”).

Fifth, the Lead Opinion invokes “the societal landscape at the time” article I, section 10

was enacted, lamenting the status of women in the 1960s and 1970s in South Carolina. PPSA, 2023

WL 107972, at *5 (Lead Opinion); see also id. at *31 (Beatty, C.J., concurring) (discussing how

“women were not full participants in the public and legal affairs of this state” in the 1960s and

1970s). Taken to its logical conclusion, such an unprecedented and unprincipled theory of

constitutional interpretation would naturally call into question the U.S. Constitution. But even to

the extent the Lead Opinion’s historical narrative is accurate, it actually cuts against the Lead

6
Opinion’s conclusion. Cf. id. at *73 (James, J., dissenting) (the Court “certainly cannot go back

fifty years in time and draft out of thin air a privacy provision encompassing features the male-

dominated Committee and General Assembly did not envision”).

Based on these five lines of reasoning, the Lead Opinion concludes that article I, section

10 includes a right to elective abortion. As just explained, none of these lines of reasoning

withstands scrutiny. But more troubling with the Lead Opinion is what is missing from it: Any

affirmative evidence that South Carolinians understood article I, section 10 to silently but

effectively invalidate existing law and confer a right to terminate the life of an unborn child. It

was, of course, Petitioners’ “heavy burden,” Bodman v. State, 403 S.C. 60, 66, 742 S.E.2d 363,

366 (2013), to prove the Fetal Heartbeat Act’s “repugnance to the Constitution is clear and beyond

a reasonable doubt,” Curtis v. State, 345 S.C. 557, 570, 549 S.E.2d 591, 597 (2001). That required

Petitioners to demonstrate that the framers and the people understood article I, section 10 to include

a right to elective abortion.

The only attempt in the Lead Opinion to cite anything South Carolina-specific showing

that anyone in the late 1960s or early 1970s thought article I, section 10 was relevant to abortion

is to a (supposedly irrelevant, according to the Lead Opinion) appendix to a West Committee report

that mentions Griswold. The paragraph, however, that the Lead Opinion references concludes that

“the rationale of Griswold could be advanced to establish that emanations from the Bill of Rights

forbid wiretapping and electronic eavesdropping.” J.A. 496 (emphasis added). Between the

context of this reference to Griswold and the U.S. Supreme Court distinguishing marital privacy

and abortion in Roe, an isolated reference to Griswold in an appendix (to a purportedly irrelevant

source) does not come close to meeting Petitioners’ heavy burden. This is particularly so given

that the same General Assembly that put the new article I, section 10 on the ballot in 1970 was the

7
same General Assembly that enacted the 1970 abortion law outlawing all abortions unless an

exception for maternal life or health, fetal anomaly, rape, or incest applied. See 1970 S.C. Acts

No. 821; cf. McColl v. Marlboro Graded Sch. Dist. No. 10, 143 S.C. 120, 141 S.E. 265, 266 (1928)

(“The contemporaneous construction given by the Legislature to the Constitution is entitled to

respect at the hands of this court under the rule many times stated.” (collecting cases)). The passage

of Act 821 in 1970 is far more compelling evidence of the General Assembly’s intent than the fact

that the U.S. Supreme Court had decided Griswold half a decade earlier. Compare PPSA, 2023

WL 107972, at *79 (James, J., dissenting), with id. at *20 (Beatty, C.J., concurring).

Ultimately, the Lead Opinion includes a sentence that makes plain the new ground it tries

to break in interpreting the Constitution: “We cannot relegate our role in declaring whether a

legislative act is constitutional by blinding ourselves to everything that has transpired since the

amendment was adopted.” Id. at *5 (Lead Opinion). There is much wrong with this assertion. Most

significantly, it ignores well-established precedent that, in our system of government, the people

make the law, and that law is what “the citizenry and the General Assembly have worked to

create.” Long, 406 S.C. at 514, 753 S.E.2d at 426; cf. N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen,

142 S. Ct. 2111, 2132 (2022) (the Constitution’s “meaning is fixed according to the understandings

of those who ratified it”). The courts simply apply the Constitution that the people have adopted.

Cf. S.C. Const. art. I, § 1; Gaud v. Walker, 214 S.C. 451, 481, 53 S.E.2d 316, 329 (1949) (“Our

duty is to declare the law, not to make it.”). It is not the role of the courts to “update” the

Constitution by reinterpreting it to account for what has changed since a particular constitutional

provision was enacted. Cf. Bailey v. S.C. State Election Comm’n, 430 S.C. 268, 276, 844 S.E.2d

390, 394 (2020) (“[I]f the will of the people as expressed through their legislative representatives

is that such a change be made, the Legislature may change the law. This Court, however, will

8
not.”). To engraft new rights into the Constitution by judicial decisionmaking is nothing more than

rule by “judicial fiat” instead of by the people, PPSA, 2023 WL 107972, at *58 (Kittredge, J.,

dissenting), and the creation of rights “out of thin air,” id. at *73 (James, J., dissenting). The

people—not the courts—have the right to change their Constitution. See S.C. Const. art. XVI, § 1.

B. The Lead Opinion and the Concurring Opinion create at least two other
problems in South Carolina law.

Beyond overlooking or reimagining the fundamental principles of constitutional

interpretation, the Lead Opinion, as well as the Concurring Opinion, introduce two other problems

into the State’s jurisprudence. The first is the potential opening of Pandora’s Box to new—and

previously unimaginable—constitutional claims (or “rights”). If terminating a pregnancy “rests

upon the utmost personal and private considerations imaginable,” PPSA, 2023 WL 107972, at *1

(Lead Opinion), so too does the decision to terminate one’s own life. But state law currently

prohibits physician-assisted suicide. See S.C. Code Ann. § 16-3-1090. State law also prohibits

prostitution, but the decision to have sex (whether for money or not) with another person could

also be called a profoundly personal one. Cf. Lawrence v. Texas, 539 U.S. 558, 562 (2003)

(“Liberty presumes an autonomy of self that includes . . . certain intimate conduct.”). Prostitution,

however, is illegal. See S.C. Code Ann. § 16-15-90. In the same vein, bodily autonomy can also

involve these personal and private considerations, but state law bars recreational drug use. See id.

§ 44-53-370(d).

The Concurring Opinion does not engage with or address this point, instead simply labeling

it “absurd” and “spurious.” PPSA, 2023 WL 107972, at *18, *31 n.39 (Beatty, C.J., concurring).

But brushing this concern aside isn’t as simple as calling it unworthy of discussion and ignoring it

(or dodging it because there is no answer). Under the Lead Opinion’s sweeping conception of

privacy and its failure to identify an objective framework for determining the scope of article I,

9
section 10, this Court lacks any principled basis to distinguish this case from potential challenges

to laws prohibiting physician-assisted suicide, prostitution, or recreational drug use.

The second problem is that these opinions attempt to constitutionalize debated or outdated

scientific contentions. For instance, the Lead Opinion asserts that “the overwhelming consensus

in the medical community is that, at this early stage of gestation, what is being recorded as ‘cardiac

activity’ is merely an electrical flickering occurring prior to the development of any chambers of

the heart.” PPSA, 2023 WL 107972, at *2 n.2 (Lead Opinion). And the Concurring Opinion claims

that the heartbeat is merely “a flutter of electrical impulses.” Id. at *15 (Beatty, C.J., concurring).

Yet the Lead Opinion ignores the fact that Planned Parenthood conveniently amended its own

website during this litigation to delete the statement that “[a] very basic beating heart and

circulatory system develop” during weeks five and six and replace it with “[a] part of the embryo

starts to show cardiac activity.” Compare WebArchive, Planned Parenthood, What happens in the

second month of pregnancy? (July 25, 2022), https://tinyurl.com/2jvsvh34, with Planned

Parenthood, What happens in the second month of pregnancy?, https://tinyurl.com/5xawvdhm

(last visited Jan. 19, 2023). And it ignores the fact that, whatever “it” is called, “it” has a 95%

correlation with a live birth.

In a similar way, the Concurring Opinion ignores the General Assembly’s determination

that, from fertilization, the fetus is an “unborn child,” 2021 S.C Acts No. 1, § 3 (S.C. Code Ann.

§ 44-41-610(6)), and relegates this human life to the status of “an amorphous collection of cells,”

PPSA, 2023 WL 107972, at *12. That would be a curious phrase to describe a mushroom, but it’s

an understated if not inflammatory description for an unborn child at six weeks, when at that time,

“[a]ll major systems and organs begin to form,” “eyes and ears are developing,” and “[t]he neural

tube (which becomes the brain and spinal cord), the digestive system, and the heart and circulatory

10
system begin to form.” Johns Hopkins Medicine, The First Trimester,

https://tinyurl.com/56x77wzp (last visited Jan. 19, 2023). For an opinion that does not want to

“willingly participate in the perpetuation of misinformation,” PPSA, 2023 WL 107972, at *15,

setting aside the General Assembly’s findings to call the unborn child “a quarter-inch-long

amorphous collection of cells” seems to be doing just that, id. at *23. Moreover, it does so based

on evidence not in the record, cf. Milton v. Richland Cnty., No. 2014-000580, 2015 WL 4642832,

at *2 (S.C. Aug. 5, 2015) (“Because Petitioner failed to submit a sufficient record, . . . we dismiss

this matter in our original jurisdiction as it is not appropriate for our review.”); Rule 210(h),

SCACR, and it makes the Court a player in this proverbial policy contest, rather than a neutral

umpire “call[ing] balls and strikes.” Books-A-Million, Inc. v. S.C. Dep’t of Revenue, 437 S.C. 640,

645 n.4, 880 S.E.2d 476, 479 n.4 (2022).

As a third example, the Lead Opinion puts too great an emphasis on quickening, making

the sweeping claim “that in South Carolina, and indeed in all common law jurisdictions,” “the

fetus’s own interest” does not “emerge[]” until “quickening.” PPSA, 2023 WL 107972, at *10

(Lead Opinion). That assertion is incorrect. “[T]he common law did not condone even

prequickening abortions.” Dobbs, 142 S. Ct. at 2250. And South Carolina law has long protected

unborn life, both before and after quickening. Petitioners have not disputed that the very first

codification of abortion as a crime in South Carolina made abortion before quickening a

misdemeanor. See 1883 S.C. Acts No. 354. In fact, in the sentence before the Lead Opinion makes

its incorrect claim about quickening, it quotes State v. Steadman for the proposition that state law

included “much severer punishment for the destruction of a child after it has quickened than for

the destruction of a child before it has quickened.” PPSA, 2023 WL 107972, at *10 (quoting 214

S.C. 1, 8, 51 S.E.2d 91, 93 (1948)). That the State punished abortion pre-quickening at all means

11
the Lead Opinion’s assertion about quickening is wrong. Steadman is therefore inconsistent with

the Lead Opinion’s contention that an interest in fetal life does not, as a matter of law, “emerge”

until quickening. 2 Cf. 214 S.C. at 8, 51 S.E.2d at 93 (“In an abortion the fetus is always

destroyed.”). The Lead Opinion misapprehended the law on this point.

Beyond being mistaken as a matter of the law and historical record, the Lead Opinion’s

reliance on quickening raises two other problems. One, we know now—as a matter of scientific

fact—that the unborn child is, from the moment of conception, a living, unique human being. See

Carhart, 550 U.S. at 147 (majority opinion) (“[A] fetus is a living organism while within the

womb, whether or not it is viable outside the womb.”). Petitioners do not deny that fact. Nor do

they deny that laws are supposed to be updated to reflect current realities by the people acting

through their representatives. See PPSA, 2023 WL 107972, at *57 (Kittredge, J., dissenting). Two,

the Lead Opinion does not even attempt to explain why “quickening”—“the first felt movement

of the fetus in the womb,” Dobbs, 142 S. Ct. at 2249 3—makes sense either as a constitutional line

or even as a philosophical line for when an unborn child has value.

2
The Lead Opinion also fails to recognize that the reason for the “more severe” punishment
was likely an evidentiary one—medical knowledge and technology then was not as advanced.
Dobbs, 142 S. Ct. at 2251–53.
3
The Chief Justice quotes approvingly from a Georgia trial court that the “Dobbs majority
is not somehow ‘more correct’ than the majority that birthed Roe or Casey,” but rather the decision
“is simply numbers” after the Court’s composition changed. PPSA, 2023 WL 107972, at *32
(Beatty, C.J., concurring). Multiple members of this Court—including the Chief Justice, see id. at
*12—profess not to be focused on the policy debate but to be answering the legal questions raised
here. It is unclear why the U.S. Supreme Court should not be afforded this same benefit of the
doubt or degree of respect.

12
II. The Opinion Concurring in the Judgment has three flaws that misapprehend
precedent and warrant reconsideration.

Again, accepting for sake of argument that article I, section 10 extends beyond the search-

and-seizure context, see PPSA, 2023 WL 107972, at *39 (Few, J., concurring in the judgment),

the Opinion Concurring in the Judgment still should be reconsidered.

A. The Court must look to what South Carolinians understood “privacy” to

mean.

The Opinion Concurring in the Judgment insists article I, section 10 is “clear as to its

scope” and unambiguous. Id. at *35. This opinion then twice declares that “the term ‘privacy’

means the full panoply of privacy rights Americans have come to enjoy over the history of our

Nation.” Id.; see also id. at *39. These assertions raise two issues.

First, using a supposedly unambiguous term to define that same term raises more questions

than it answers. The Opinion Concurring in the Judgment and the two dissents disagree over

whether “privacy” is truly unambiguous. See id. at *51 (Kittredge, J., dissenting); id. at *72 (James,

J., dissenting). Even if the Opinion Concurring in the Judgment is correct, “privacy” still needs a

definition, and the Court still must have some way to determine what falls within “privacy” and

what doesn’t (because surely everything the State regulates cannot be regulating “privacy”). Cf.

id. at *72 (saying that “privacy” “is clear as to its scope” “beg[s] the question of what that scope

is”).

And second, the Opinion Concurring in the Judgment never explains why “Americans”

and “our Nation” are the standard for determining the scope of a state constitutional provision.

This Court has consistently recognized that the federal and state constitutions are different

documents and are not necessarily coextensive. See, e.g., State v. Forrester, 343 S.C. 637, 643,

541 S.E.2d 837, 840 (2001). Thus, what privacy rights “Americans” have “come to enjoy over the

13
history of our Nation” should not control what “privacy” meant to the General Assembly and the

people who added this provision to the South Carolina Constitution.

Of course, if looking to the federal constitution were required, this case would be easy: Roe

was “egregiously wrong” and “on a collision course with the Constitution from the day it was

decided” because that decision was “[w]ithout any grounding in the constitutional text, history, or

precedent” Dobbs, 142 S. Ct. at 2265–66. Federal law therefore does not provide Americans with

any privacy right that includes elective abortion or prohibit the General Assembly from regulating

abortion.

Nor does looking to what constitutional privacy rights that Americans in other States enjoy

shed much, if any, light on the question here. Although the States necessarily share some history,

each State has its own unique story and sovereignty. The Opinion Concurring in the Judgment

seems to recognize as much, as it avoids invoking the out-of-state cases relied upon by the Lead

Opinion.

The ultimate question here is what South Carolinians understood article I, section 10’s

privacy provision to mean when they enacted it in 1971. To be sure, that is the critical question

here because (once again) the “framers and the people who adopted” article I, section 10

established its meaning. Long, 406 S.C. at 514, 753 S.E.2d at 426.

Nowhere does the Opinion Concurring in the Judgment offer any discussion of what the

General Assembly or the people understood the protection against unreasonable invasions of

privacy to entail when they enacted article I, section 10. In Part III of the Opinion Concurring in

the Judgment, there are various “privacy interests” identified, from conversations with a husband,

boyfriend, minister, doctor, and loved ones to autonomy over medical decisions to “any medical

procedures a pregnant woman chooses to have.” PPSA, 2023 WL 107972, at *39. For a

14
policymaker writing on a blank slate, those may all be considerations to take into account, but

from a judicial perspective, there is nothing in the Opinion Concurring in the Judgment showing

that the General Assembly or the people thought these were the types of privacy interests that were

being protected by article I, section 10. Given that the General Assembly has “plenary power to

enact legislation,” Cnty. of Florence v. W. Florence Fire Dist., 422 S.C. 316, 321, 811 S.E.2d 770,

773 (2018), the onus is on the party seeking to limit that power to prove an act is unconstitutional

(by clear and convincing evidence and beyond a reasonable doubt, no less). In other words, if there

is no evidence that “privacy” as understood by the framers and people in 1971 includes the

considerations in Part III of the Opinion Concurring in the Judgment, then the Constitution does

not limit the General Assembly’s authority to regulate matters implicating those considerations.

Nothing that the Opinion Concurring in the Judgment discusses from after 1971 can shed

meaningful light on what the framers and people understood “privacy” to mean or protect. See

PPSA, 2023 WL 107972, at *40. That’s not because contemporaneous evidence from the same era

or in the immediate years after adoption can never be relevant. Cf. Fulton v. City of Philadelphia,

141 S. Ct. 1868, 1903 (2021) (Alito, J., concurring in the judgment) (“Since the First Congress

also framed and approved the Bill of Rights, we have often said that its apparent understanding of

the scope of those rights is entitled to great respect.”). But in the abortion context, the immediate

post-ratification history of article I, section 10 is so tainted by Roe as to be useless. After all, no

one can credibly claim that, given the State’s past history of generally prohibiting abortion, South

Carolina would have codified the trimester framework in 1974, see 1974 S.C. Acts No. 1215, had

the U.S. Supreme Court not “arrogated” to itself the authority to constitutionalize elective abortion,

Dobbs, 142 S. Ct. at 2284; see also State v. Lawrence, 261 S.C. 18, 20, 198 S.E.2d 253, 254 (1973)

15
(the Court was “forced to agree” that Roe meant the State’s 1970 abortion law was

“unconstitutional”).

Finally, it’s not as if the privacy language of article I, section 10 gave the judiciary some

proverbial blank check to develop, decide, or declare public policy about privacy. That would be

a clause “that ate the rule of law.” Lawrence, 539 U.S. at 588 (Scalia, J., dissenting)

B. “Privacy” does not incorporate a statutory “opportunity” to have an abortion.

The Opinion Concurring in the Judgment states (correctly) that article I, section 10 “does

not encompass a ‘right to abortion.’” PPSA, 2023 WL 107972, at *48. Instead, the Opinion

Concurring in the Judgment insists that privacy includes the “‘opportunity’ for abortion” because

the State has supposedly had such a “longstanding statutory” opportunity to do so, id., and that

“any medical procedures a pregnant woman chooses to have—including an abortion—or chooses

not to have—implicate her privacy interests,” id. at *39. There are at least three flaws in this broad

assertion.

First, this assertion is logically inconsistent with the declaration that article I, section 10

doesn’t include a right to abortion. The transitive property (if A = B and B = C, then A = C) proves

as much. If the constitutional protection against unreasonable invasions of privacy (A) protects a

woman’s right to any medical procedure (B), and any medical procedure includes an abortion (C),

then constitutional protection against unreasonable invasions of privacy (A) also protects the right

to have an abortion (C). The Opinion Concurring in the Judgment has therefore taken inconsistent

positions on article I, section 10 and abortion.

Second, this assertion makes no distinction between a procedure that ends the unborn

child’s life and a procedure that ends the woman’s life. If “privacy” permits a woman to end her

16
unborn child’s life, it’s not clear why it would not also allow the woman to end her own life. This

leads to the Pandora’s Box that the Concurring Opinion tries unsuccessfully to avoid.

Third, this assertion misapprehends the State’s regulation of abortion prior to 1971. As

discussed, for nine decades before article I, section 10 took its current form, South Carolina made

it a felony to provide a pregnant woman any drug to induce an abortion or to perform an abortion,

unless an abortion was “necessary to preserve her life or the life of such child.” 1883 S.C. Acts

No. 354, § 1. If the woman or child died, the punishment was between five and 20 years in prison.

Id. If no one died from an attempted abortion, the punishment was up to five years in prison. Id.

§ 2. That remained the law until 1970, when South Carolina added exceptions for maternal health,

fetal anomaly, rape, or incest. See 1970 S.C. Acts No. 821.

A careful reading of Steadman confirms that the State has never provided any general

opportunity for women to have an abortion. There, this Court explained that one provision of the

Code (S.C. Criminal Code § 1112 (1942)) made it a felony to perform an abortion after quickening

if the mother or child died as a result. 214 S.C. at 8–9, 51 S.E.2d at 93. Another provision (S.C.

Criminal Code § 1113 (1942)) made it a misdemeanor to perform an abortion “in the early stages

of pregnancy and prior to the time when it could be said that [a woman] was ‘quick with child.’”

214 S.C. at 9, 51 S.E.2d at 93. In other words, a century and a half ago, the General Assembly

criminalized performing an abortion at any time in pregnancy (unless a statutory exception

applied). All that varied was the classification of the crime and the severity of the punishment. Cf.

State v. Steadman, 216 S.C. 579, 59 S.E.2d 168 (1950) (affirming a conviction under section 1113

after a retrial following the Court’s 1948 decision).

Prior to the State’s authority being wrongly abrogated by Roe, the “longstanding,” PPSA,

2023 WL 107972, at *48, practice in this State was to permit abortion only to save the life of the

17
mother or child. Only three years before Roe (and one year before article I, section 10 took effect)

did the State authorize other exceptions to the ban on abortion, and those exceptions were limited

to maternal health, rape, incest, and fetal anomaly. The Opinion Concurring in the Judgment

misapprehends this history of state law.

C. The Opinion Concurring in the Judgment wrongly holds any lack of evidence
about when women “can know” they are pregnant against the Act, not against
Petitioners and their facial challenge.

The Opinion Concurring in the Judgment states that this case depends “heavily” on

“whether the ban on abortion four weeks from fertilization prevents a substantial percentage of

women from making a meaningful choice because they cannot know in time they are pregnant.”

PPSA, 2023 WL 107972, at *44. It proceeds to note that “[t]here is no data before [the Court] as

to the percentage of pregnant women who do not learn that they are pregnant, and thus have

inadequate time for a meaningful choice, within four weeks of fertilization.” Id. at *45.

At first, the Opinion Concurring in the Judgment recognizes that Petitioners challenged the

Act, so this “fail[ure] to present any evidence” “could be fatal to [their] constitutional challenge.”

Id. at *46. Under well-established precedent, this failure is indeed sufficient to doom Petitioners’

claim. See, e.g., Bodman, 403 S.C. at 66, 742 S.E.2d at 366 (proving a law is unconstitutional is a

“heavy burden”); State v. Jones, 344 S.C. 48, 58, 543 S.E.2d 541, 546 (2001) (“given that Jones

has offered no evidence in support of his claim, he has utterly failed in his burden”). Seemingly in

any other case, but particularly in the context of a facial challenge to a legislative act, the law

would compel such a disposition.

Instead of adhering to this well-established precedent about constitutional challenges and

burdens of proof in any case, the Opinion Concurring in the Judgment charts new ground, requiring

the General Assembly to prove (and seemingly memorialize in the legislation) that it considered

18
evidence that established that women have time to know they are pregnant and make an “informed

choice” about whether to have an abortion before the unborn child’s heartbeat can be detected.

This approach is flawed for many reasons.

One, it assumes that the Constitution somehow requires women to have an opportunity to

choose to have an abortion before the State can assert its interest in protecting unborn life. As just

discussed, see supra Part II.B., South Carolina law has never (at least prior to Roe forcing a change

to state law) provided for such an opportunity.

Two, the Opinion Concurring in the Judgment overlooks what “informed choice” the Fetal

Heartbeat Act covers. Nothing in the Constitution or the Act requires some general opportunity

for any pregnant woman to have an abortion. Indeed, that interpretation is contrary both to the

history of South Carolina law on abortion and the General Assembly’s finding that the State “has

legitimate interests from the outset of a pregnancy in . . . the life of the unborn child.” 2021 S.C.

Acts No. 1, § 2(7). Abortion may be generally prohibited after a heartbeat is detected, but given

that exceptions for rape, incest, and fetal anomaly are in the Act, some women have a choice to

make after a heartbeat is detected. Other women to whom no exception applies and who might

otherwise have traveled to another State for an abortion may instead choose to carry their child to

term after hearing the heartbeat. In other words, there is “informed choice” under the Fetal

Heartbeat Act. To insist that more (or most or all) pregnant women must be given the choice to

abort a child after the child has a heartbeat veers directly into the policy debate that the Opinion

Concurring in the Judgment wisely and emphatically disclaims attempting to umpire. See PPSA,

2023 WL 107972, at *34.

Three, the Opinion Concurring in the Judgment discounts the DHEC statistics about

abortion that occur before six weeks because of how gestational age is calculated. See PPSA, 2023

19
WL 107972, at *45. Even granting that there may be a two-week discrepancy between the metrics

used in the Act and the DHEC statistics, 4 many women who get abortions in the first six weeks

(as counted by DHEC) must necessarily know they are pregnant before six weeks LMP. That is at

least some evidence that supports the conclusion that many women can make an “informed

choice,” if the Act in fact requires what the Opinion Concurring in the Judgment says it does. And

given that Petitioners’ facial challenge demanded that they prove the Act is “unconstitutional in

all its applications,” Richardson on behalf of 15th Cir. Drug Enf’t Unit v. Twenty Thousand Seven

Hundred Seventy-One & 00/100 Dollars, 437 S.C. 290, 297, 878 S.E.2d 868, 871 (2022), there

was no need for additional discovery on this front. No one was “boast[ing]” about this, see PPSA,

2023 WL 107972, at *46; the State was merely adhering to this Court’s precedent.

And in any event, there is nothing to the Opinion Concurring in the Judgment’s claim that

the State’s interest in protecting fetal life after a heartbeat is diminished because the State wants

pregnant women to be informed. Since 1883, South Carolina has protected fetal life by statute,

while still permitting at least one exception to the prohibition on abortion. There is nothing

inconsistent in saying that a woman choosing abortion should have adequate information and that,

past a certain point and in certain circumstances, abortion is no longer permissible. Balancing

competing interests has long been a legislative obligation. That’s why there are aggravating and

mitigating circumstances for crimes, see S.C. Code Ann. § 16-3-20(C), and complete defenses like

4
The Act does not specify which method of ultrasound must be used to try to detect a
heartbeat, see S.C. Code Ann. § 44-41-630(1), and some methods of ultrasound may not detect a
fetal heartbeat as early as six weeks LMP, see David F. Forte, Life, Heartbeat, Birth: A Medical
Basis for Reform, 74 Ohio St. L.J. 121, 141 (2013) (noting the different types of ultrasound and
when they can detect a fetal heartbeat); cf. Compl. for Decl. and Inj. Relief, No. 2022-001062
(lacking any allegations about what type of ultrasound Petitioners generally use). Thus, much of
the premise of the Opinion Concurring in the Judgment may be faulty, a problem that only
underscores Petitioners’ failures to prove their case.

20
self-defense, see State v. Dickey, 394 S.C. 491, 499, 716 S.E.2d 97, 101 (2011). But the legislative

determination not to ban abortion entirely does not somehow diminish the State’s interest in

protecting unborn life. It is, rather, simply the product of the people’s attempt to resolve a

contentious issue. To strike down a law like the Fetal Heartbeat Act while simultaneously

suggesting a total ban on abortion may well be constitutional is not only counterintuitive but it is

also only going to make passing legislation more difficult, as it indicates legislation must be all-

or-nothing to survive a challenge in this Court. Cf. PPSA, 2023 WL 107972, at *68 (Kittredge, J.,

dissenting) (“If the six-week ban under the Act is unconstitutional, then how could a total ban

possibly be constitutional?”).

Four, even the Opinion Concurring in the Judgment notes that the General Assembly did

take testimony before passing the Fetal Heartbeat Act and make the findings in section 2 of the

Act based on “contemporary medical research.” PPSA, 2023 WL 107972, at *46 (Few, J.,

concurring in the judgment). True, the General Assembly did not include anything specific about

when women know (or can know 5) they are pregnant, but no case from this Court has ever required

such specific findings to uphold an act against a constitutional challenge. In Richards v. City of

Columbia, for example, the findings from the city council were a single sentence, listing the

various problems with dwellings in Columbia. 227 S.C. 538, 543, 88 S.E.2d 683, 685 (1955).

Additionally, there is no realistic way the General Assembly could begin to memorialize all of the

evidence and analysis that goes into an Act this significant when so many (hours’ long) hearings

5
Women can know they are pregnant early in pregnancy. Even Planned Parenthood
recognizes as much, telling women they “can take a pregnancy test any time after” their “period is
late.” Planned Parenthood, Pregnancy Tests, https://tinyurl.com/2jxpzzdd (last visited Jan. 19,
2023). According to Planned Parenthood, women who have had unprotected sex and want to
ensure they do not become pregnant can take an emergency contraception “up to five days” after
sexual intercourse. Planned Parenthood, Emergency Contraception, https://tinyurl.com/bdfkup4t
(last visited Jan. 19, 2023).

21
were held. The General Assembly, in fact, need not make any findings, and its legislation always

has (or is supposed to have) a presumption of constitutionality.

Whatever findings the General Assembly does make, they “will not be overturned except

by convincing evidence to the contrary.” Id. at 560, 88 S.E.2d at 694; see also Bauer v. S.C. State

Hous. Auth., 271 S.C. 219, 230, 246 S.E.2d 869, 875 (1978) (refusing to strike down an act when

there were “no facts of which we may take judicial notice which tend to negate these [legislative]

findings”). Here, there is no convincing evidence—indeed, there is “no” evidence, PPSA, 2023

WL 107972, at *45—before the Court to contradict the finding in section 2(8) of the Act. That

lack of evidence cuts against the Petitioners, not against the Act.

Five, the Opinion Concurring in the Judgment overlooks what findings the General

Assembly did make. The Opinion Concurring in the Judgment uses the fact that the State has not

adopted “personhood” legislation to conclude that “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 bill.” Id. at *41. Yet the Act does define human life as beginning at

conception: An “unborn child” is “an individual organism of the species homo sapiens from

fertilization until live birth.” 2021 S.C. Acts No. 1, § 3 (S.C. Code Ann. § 44-41-610(6)).

III. The Lead Opinion’s footnote on severability is inconsistent with this Court’s
precedent.

In a single footnote, the Lead Opinion strikes down the entire Act. 6 See PPSA, 2023 WL

107972, at *11 n.15 (Lead Opinion). The Lead Opinion strikes down the whole law despite a

robust severability clause that if any part of the Act—even a single “word”—is “held to be

unconstitutional or invalid,” the remaining portions are unaffected, as “the General Assembly . . .

6
The Opinion Concurring in the Judgment, meanwhile, never addresses the severability
question.

22
declar[ed] that it would have passed this act and each and every section, subsection, paragraph,

subparagraph, sentence, clause, phrase, and word thereof, irrespective of the fact that” other

portions might be invalidated. 2021 S.C. Acts No. 1, § 7.

The Lead Opinion does not identify a single instance in which this Court has taken such a

drastic step to strike down an entire act when that act included a severability clause like the Fetal

Heartbeat Act does. No wonder. This Court has consistently taken the opposite approach,

explaining that a near-identical severability provision “is strongly worded and evidences strong

legislative intent that the several parts of [the act] be treated independently.” Joytime Distribs. &

Amusement Co. v. State, 338 S.C. 634, 649, 528 S.E.2d 647, 654 (1999). More recently, in

Pinckney v. Peeler, this Court unanimously recognized that even though the supermajority

requirement “was essential to reach the compromise necessary to achieve the primary purpose of

the Heritage Act—removal of the Confederate flag from the dome of the State House,”

nevertheless “the General Assembly intended that if the supermajority requirement were found

invalid, then the rest of the Act—including Section 1 which removed the flag from the dome—

would stand.” 434 S.C. 272, 289–90, 862 S.E.2d 906, 915–16 (2021).

The same thing is true of the Fetal Heartbeat Act. The regulation of abortion after a fetal

heartbeat is detected may have been a central part of the Act, but the General Assembly “strongly,”

Joytime Distribs., 338 S.C. at 649, 528 S.E.2d at 654, intended for any part of the Act that is not

unconstitutional to remain in effect, cf. Hodges v. Rainey, 341 S.C. 79, 85, 533 S.E.2d 578, 581

(2000) (“The cardinal rule of statutory construction is to ascertain and effectuate the intent of the

legislature.”).

The Lead Opinion’s conclusory assertion that “it is highly dubious that without the six-

week restriction, the Act as a whole would have passed” makes at least one of three mistakes.

23
PPSA, 2023 WL 107972, at *11 n.15. One is that the Lead Opinion essentially calls the General

Assembly dishonest in including the severability clause in section 7 of the Act, saying the General

Assembly didn’t really mean what it said in that clause. That disparagement of a coequal branch

of government contradicts this Court’s previous approach to interpreting statutes: When the

statute’s language “conveys a clear and definite meaning,” “the court has no right to impose

another meaning.” Hodges, 341 S.C. at 85, 533 S.E.2d at 581. Unless the Lead Opinion—as well

as, by implication, the Opinion Concurring in the Judgment—seeks to abandon a textualist

approach to interpretation writ large, rehearing is required.

The second mistake is that the Lead Opinion misapprehends the test that this Court has

established for severability. The question “is whether the constitutional portion of the statute

remains complete in itself, wholly independent of that which is rejected.” Curtis, 345 S.C. at 571,

549 S.E.2d at 598. The answer to that question is yes. As the Governor asked during merits

briefing, “Why can’t the requirement to give a mother the chance to hear her unborn child’s

heartbeat operate independently of the challenged provision? How have similar requirements in

many other States worked perfectly well (and been upheld by the United States Supreme Court,

even prior to Dobbs)?” Neither Petitioners nor the Lead Opinion offered an answer.

In fact, even if abortion is permitted up to 20 weeks 7 under preexisting state law, see 2016

S.C. Acts No. 183, § 1 (S.C. Code Ann. § 44-41-420), women who hear their child’s heartbeat

might make the “informed choice” not to abort their baby. In that sense, the rest of the Act may

well further the ability of women to decide whether to have an abortion. Cf. PPSA, 2023 WL

107972, at *44–*47 (Few, J., concurring in the judgment). “In attempting to ensure that a woman

7
As Justice Kittredge aptly notes, this limitation unfortunately isn’t much of one, given
that 99.5% of abortions in this State are performed before 20 weeks. See PPSA, 2023 WL 107972,
at *68 (Kittredge, J., dissenting).

24
apprehend the full consequences of her decision, the State furthers the legitimate purpose of

reducing the risk that a woman may elect an abortion, only to discover later, with devastating

psychological consequences, that her decision was not fully informed.” Casey, 505 U.S. at 882.

And the private right of action the Act provides, see 2021 S.C. Acts No. 1, § 3 (S.C. Code Ann.

§ 44-41-740), will ensure that women have a way to vindicate this claim against an abortionist

who has every business incentive to “herd[]” women through abortions “with little or no medical

or emotional counseling,” much less the chance to view and hear an ultrasound. McCorvey v. Hill,

385 F.3d 846, 851 (5th Cir. 2004) (Jones, J., concurring).

The third (and related) mistake is that the Lead Opinion starts 8 to create special rules for

abortion cases. The Court should not create special rules for abortion cases. The U.S. Supreme

Court tried that for decades, and its unsuccessful efforts were the subject of repeated criticism and

unprincipled decisions. 9 This Court should reject the temptation to treat challenges to the General

8
Technically, it perpetuates, rather than starts, special rules for abortion cases. In issuing
the temporary injunction, the Court stated it “offer[ed] no opinion on the likelihood of success on
the merits.” Aug. 17, 2022 Order, at 4. This statement was perplexing, given that in the previous
paragraph, the Court had noted that one element for obtaining preliminary injunctive relief is
showing that a plaintiff has “a likelihood of success on the merits.” Id. Ultimately, it seems unlikely
that, in a hypothetical case involving a noncompete agreement or a property dispute, this Court
would affirm the award of a preliminary injunction if the circuit court said it was not commenting
on the plaintiff’s likelihood of success. But abortion cases are, it appears, different for no other
reason than they are abortion cases.
9
See, e.g., Dobbs, 142 S. Ct. at 2275–76 (“The Court’s abortion cases have diluted the
strict standard for facial constitutional challenges. They have ignored the Court’s third-party
standing doctrine. They have disregarded standard res judicata principles. They have flouted the
ordinary rules on the severability of unconstitutional provisions, as well as the rule that statutes
should be read where possible to avoid unconstitutionality. And they have distorted First
Amendment doctrines.” (internal footnotes omitted)); June Med. Servs. L.L.C. v. Russo, 140 S. Ct.
2103, 2173 (2020) (Gorsuch, J., dissenting) (“today’s decision misapplies many of the rules that
normally constrain the judicial process”); Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292,
2321 (2016) (Thomas, J., dissenting) (noting “the Court’s habit of applying different rules to
different constitutional rights—especially the putative right to abortion”); Stenberg v. Carhart,
530 U.S. 914, 954 (2000) (Scalia, J., dissenting) (calling the Court’s decision a “jurisprudential
novelty” that “must be chalked up to the Court’s inclination to bend the rules when any effort to

25
Assembly’s “authority to regulate abortion” differently simply because they involve a “question

of profound moral and social importance.” Dobbs, 142 S. Ct. at 2265, 2279. The Court should

instead apply the same rules that apply to all cases. Indeed, the rule of law demands it. Under these

settled rules of statutory interpretation and severability, this Court has no warrant whatsoever to

strike down the entire Act. To do so deprives women seeking an abortion of relevant facts to make

informed decisions—a result especially ironic in a case in which the only plaintiffs are abortionists

who stand to gain financially from (1) not providing women more information, (2) promptly

providing abortions, and (3) performing as many abortions as possible.

CONCLUSION

The Petition for Rehearing should be granted.

limit abortion, or even to speak in opposition to abortion, is at issue”); Hill v. Colorado, 530 U.S.
703, 742 (2000) (Scalia, J., dissenting) (explaining that, “like the rest of [the Court’s] abortion
jurisprudence,” the majority’s “decision is in stark contradiction of the constitutional principles
we apply in all other contexts”); Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 785 (1994)
(Scalia, J., concurring in part and dissenting in part) (“The entire injunction in this case departs so
far from the established course of our jurisprudence that in any other context it would have been
regarded as a candidate for summary reversal.”); Thornburgh v. Am. Coll. of Obstetricians &
Gynecologists, 476 U.S. 747, 814 (1986) (O’Connor, J., dissenting) (“This Court’s abortion
decisions have already worked a major distortion in the Court’s constitutional jurisprudence.
Today’s decision goes further, and makes it painfully clear that no legal rule or doctrine is safe
from ad hoc nullification by this Court when an occasion for its application arises in a case
involving state regulation of abortion.”); see also W. Ala. Women’s Ctr. v. Williamson, 900 F.3d
1310, 1314 (11th Cir. 2018) (“there is constitutional law and then there is the aberration of
constitutional law relating to abortion”).

26
 Respectfully submitted:

s/Wm. Grayson Lambert

Thomas A. Limehouse, Jr.
Chief Legal Counsel
S.C. Bar No. 101289
Wm. Grayson Lambert
Senior Legal Counsel
S.C. Bar No. 101282
Erica Wells Shedd
Deputy Legal Counsel
S.C. Bar No. 104287
OFFICE OF THE GOVERNOR
South Carolina State House
1100 Gervais Street
Columbia, South Carolina 29201
(803) 734-2100
[email protected]
[email protected]
[email protected]

Counsel for Governor McMaster

January 30, 2023

Columbia, South Carolina

27
 THE STATE OF SOUTH CAROLINA
IN THE SUPREME COURT

IN ITS ORIGINAL JURISDICTION

Appellate Case No. 2022-001062

PLANNED PARENTHOOD SOUTH ATLANTIC; GREENVILLE WOMEN’S CLINIC;

KATHERINE FARRIS, M.D.; and TERRY BUFFKIN, M.D. ...................................... Petitioners,

v.

STATE OF SOUTH CAROLINA; ALAN WILSON, in his official capacity as Attorney General
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; JIM C. CHOW, in his
official capacity as a Member 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;
JEFFREY A. WALSH, in his 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 A. 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,

and

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 MCMASTER, in his official capacity as Governor of
the State of South Carolina .......................................................... Respondents–Intervenors.

CERTIFICATE OF SERVICE

28
 I certify that this Governor McMaster’s Petition for Rehearing was served on counsel of

record on January 30, 2023, via email under Paragraph (d)(1) of Order Re: Methods of Electronic

Filing and Service Under Rule 262 of the South Carolina Appellate Court Rules (As Amended

May 6, 2022), Appellate Case No. 2020-000447.

s/Wm. Grayson Lambert

Wm. Grayson Lambert
Counsel for Governor McMaster

29