South Carolina’s constitution provides for privacy rights including the right to abortion, the state’s Supreme Court ruled on Thursday, saying “the decision to terminate a pregnancy is based on the utmost personal and privacy considerations that can be made to the maximum extent possible.” imaginable.”
The decision overturns the state’s ban on abortion after about the sixth week of pregnancy. More broadly, it’s a victory for abortion rights in the South, where access is severely restricted by states.
This is the state Supreme Court’s first final ruling on the state’s constitutionality of abortion since the U.S. Supreme Court overturned Roe v. Wade in June, ending the federal constitutional right to abortion that’s been in effect for half a century, and leaving the matter up to the states.
Abortion rights groups have responded to that decision by filing lawsuits in 19 states, seeking to establish abortion rights under state constitutions, in many cases citing explicit provisions in the documents. that protects women’s privacy and equal rights. The South Carolina case was an important first — and successful — test of that strategy.
“This is a huge victory for the legal abortion movement in the South,” said Jenny Black, president of Planned Parenthood South Atlantic, one of the groups that filed the lawsuit.
Five judges ruled 3-2 that the state’s ban on abortion after about six weeks of pregnancy violated a provision in the state constitution that states “the right of the people to be safe and secure.” about people, houses, documents and countermeasures against unreasonableness. searches and seizures as well as unreasonable invasion of privacy will not be violated.”
Even so, a majority of the court said that the right to abortion “is not absolute, and must be balanced against the State’s interest in protecting unborn life.”
The Republican-controlled state legislature could try to check what that means by passing other restrictions on abortions later in pregnancy, but it would be limited by broad court protection of abortion.
The state’s attorney general, Alan Wilson, said in a statement that he is working with the governor’s office to review “all of our available options going forward.”
“We respect, but strongly disagree with the Court’s decision,” he said.
Judgment in South Carolina will not necessarily transition to other states, due to the difference in makeup of their court and the language of their constitution.
More on abortion issues in the US
Still, it’s an important decision in the post-Roe world and one that will help shape arguments as cases unfold in other states.
Abortion rights advocates argue that once some states begin to recognize the constitutional right to abortion – either as a result of court decisions such as this one or as a result of initiatives vote like in Kansas and Michigan last year – other states will follow.
The South Carolina case involves a law passed by the state legislature in 2021 that bans abortions after fetal heart activity is detected, usually around six weeks into pregnancy, with the exception of the case. pregnancy due to rape or incest or threatening the mother’s life. Federal courts blocked the law because of Roe protections. It went into effect shortly after Roe was overturned, but a few weeks later the state’s Supreme Court unanimously blocked it again, while the litigation proceeded.
Since the Supreme Court decided to overturn Roe v. Wade, the South Carolina legislature tried, but so far failed, to pass a stricter ban.
The decision by the state’s top court almost certainly blocks that effort and leaves only limited options. The state’s appeal has been exhausted. Officials could try to amend the state constitution to explicitly exclude any provision of abortion rights, although efforts to do so have failed in states like Kansas.
“We know that legislators will redouble their efforts to limit essential health care, but we will continue to use every available tool,” said Nancy Northup, president of the Center. tools are available to restore access to abortion nationally once and for all.” for Reproductive Rights, another group filed a lawsuit.
Carol Tobias, chair of the National Right to Life Commission, said she was surprised and disappointed by the South Carolina ruling. She argued that the privacy protections in the South Carolina Constitution were not designed to protect access to abortion.
The South Carolina judges noted in their view that other state constitutions include similar privacy rights. And while they recognize that the language in South Carolina’s provision doesn’t explicitly mention abortion, they say that right could reasonably be extended, based on history and prior decisions. that of the court. They rejected arguments by attorneys representing the state legislature and the attorney general that the provision only applies to “search and seizure.”
On Twitter, the speaker of the South Carolina House of Representatives, Murrell Smith, criticized the state Supreme Court for going against the US Supreme Court’s decision to return full control of abortion rights to agencies. state legislature.
“Unfortunately, the Supreme Court of South Carolina followed the path of the Supreme Court of the United States in Roe v. Wade by creating a constitutional right to abortion where none existed. “Today’s decision does not respect this concept of separation of powers and disenfranchisement of the people of this state in a decision that should have reflected their voices. Instead, South Carolina was left with a decision that did not reflect our state’s process or political will.”
The court’s decision is particularly striking for a state with a historically conservative political history. The judges noted that South Carolina lags far behind other states in women’s empowerment: they waited more than 50 years after the 19th Amendment was ratified to officially certify the awarding provisions. suffrage for women and this is the second last state. — about a century after some Western states and just before Mississippi — allowed women to serve on juries.
The attorney general and attorney general of the legislature attempted to argue against abortion rights by citing the work of a landmark legislative commission from the mid-1960s amended the state constitution. That committee recommended allowing voters to take literacy tests — even though federal law, the Voting Rights Act of 1965, both banned them — as well as maintaining language that forbids interracial marriage.
In their decision Thursday, the judges noted that the committee did not include a single woman. They wrote: “We cannot downplay our role in declaring whether a legislative act is constitutional by blinding ourselves to everything that has happened since.
State constitutional decisions are more likely to protect access to abortion than Roe v. Wade did when it was decided in 1973.
While Roe’s decision found privacy in various articles of the Constitution, that right was implied, not explicitly stated. That has led to decades of criticism, mostly from conservatives, that it was decidedly incorrect.
Writing for the majority in the Dobbs vs. Women’s Health Foundation. Jackson, the case overturned Roe in June, Judge Samuel A. Alito wrote that the right to privacy was “not mentioned” in the Constitution. Even the late Judge Ruth Bader Ginsburg, one of the court’s libertarians and an advocate of abortion rights, said she thought abortion rights should have been better protected under guarantees. expressly of the Constitution about equal protection before the law.
Roe bans states from banning abortion before the fetus is viable outside the uterus, or around 24 weeks. The Dobbs decision returned full power to regulate abortion to state legislatures. About half of the states already have bans or other restrictions – some of which are more than a century old – that are on their books and come into effect after Dobbs is decided.
Unlike federal constitutions, many state constitutions explicitly address privacy. In South Carolina, voters passed an amendment in 1971 that established protections against “unreasonable invasion of privacy.”
During oral arguments in October, lawyers for abortion providers argued that the provision protects women’s rights to make their own health care decisions, including whether or not to have an abortion.
The judges, elected to 10-year terms by the state assembly, asked whether agreeing with abortion providers would force them to set new pregnancy time limits on abortions. or will lead to no restriction on abortion. They worry about how far privacy will have to extend: Will it protect the couple? Polygamy? Auxiliary death?
Julie Murray, senior attorney for Planned Parenthood, agrees that privacy is not absolute. But she noted that in 1993 the court ruled that under the privacy clause, a death row inmate has a right to bodily autonomy that makes it impossible for the state to force him to take drugs that make him “fit for force” to be executed. That autonomy should reasonably extend to women who are six weeks pregnant, she said.
Six weeks is before many women know they are pregnant, she said. “Whether it takes you 10 days or a month to figure that out, it’s a decision that should be left to the woman,” Ms Murray argues.
Thursday’s decision showed that the justices concurred with that argument, noting that the state’s ban after six weeks “in many cases completely prevents” opting for abortion.
Abortion providers found particular sympathy in oral arguments from the only female judge on the bench, Kaye Hearn, who wrote the majority opinion. At oral arguments, Justice Hearn noted that the plaintiffs in the courtroom were all female and the state side were all male. Most women at six weeks don’t want anyone to know, she says, and many women don’t want anyone to know if they have an abortion.
“I know you’re not a woman,” she told a state government attorney. “But what could be more personal than that decision?”
Ava Sasani contribution report.
