By overruling Roe v. Wade and Planned Parenthood v. Casey last year, the Supreme Court said that the U.S. Constitution “does not confer a right to abortion.” Going forward, the Court said in Dobbs v. Jackson Women’s Health Organization, abortion restrictions are constitutional “if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests.” Abortion advocates, therefore, have begun searching for a right to abortion in state constitutions that can be used to attack legal protection for the unborn. The first two decisions along this road, announced on the same day by the supreme courts of South Carolina and Idaho, make it clear that this will be a bumpy ride.
In the 2022 election, voters in Michigan, California, and Vermont were the first to amend their state constitutions to explicitly protect a right to abortion. In 12 other states, the supreme court had—much like the Court did in Roe—interpreted state constitutional provisions on subjects such as privacy, equal protection, or due process to invent an implicit abortion right.
South Carolina. The South Carolina constitution mentions “privacy” only once. Virtually identical to the U.S. Constitution’s Fourth Amendment, the South Carolina Constitution’s Article I, Section 10, reads: “The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures and unreasonable invasions of privacy shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, the person or thing to be seized, and the information to be obtained.”
In other words, the South Carolina constitution does not explicitly grant a “right to privacy” and places its reference to privacy squarely within a provision related to searches and seizures. The Illinois constitution has a similar provision, which the Illinois supreme court held in 2013 could not be interpreted to create a right to abortion.
When other states have wanted to protect an explicit right to privacy, they have said so. The Alaska constitution, for example, provides that the “right of the people to privacy is recognized and shall not be infringed.” The California constitution states that “inalienable rights” include “privacy.” And the Montana constitution provides that the “right of individual privacy . . . shall not be infringed without the showing of a compelling state interest.”
In Planned Parenthood v. South Carolina, however, the South Carolina supreme court voted 3–2 that those four words—“unreasonable invasions of privacy”—created a right to abortion so robust that pro-life laws must be a “narrowly tailored” way to serve a “compelling” government purpose. The three justices in the majority, however, could not agree on a rationale for this conclusion and each wrote a separate opinion, as did the two dissenters. One of them, Justice John Few, actually acknowledged the obvious: “As our five separate opinions indicate, we do not agree on the answers to the legal questions we confront.”
Idaho. Article I, Section 1 of the Idaho constitution recognizes that “all men are by nature free and equal, and have certain inalienable rights, among which are enjoying and defending life and liberty.” Planned Parenthood challenged Idaho’s ban on abortion, arguing that “liberty” includes abortion. In Planned Parenthood v. Idaho, the Idaho supreme court voted 3–2 that abortion cannot be “read into the Inalienable rights Clause . . . as a fundamental right.”
Justice Robyn Brody’s impressive 106-page opinion first explained how the judiciary’s role defined how the court must interpret and apply the state constitution. Since “our duty as the judicial branch [is] to sustain the law—not to promote our personal policy preferences,” she wrote, the Idaho constitution must be interpreted “based on the plain and ordinary meaning of its text, as intended by those who framed and adopted the provision at issue.” This approach helps “avoid subjective injections of what we think ‘fair,’ ‘just,’ or ‘good policy’ to reach a desired outcome.”
Brody described in detail how Idaho had made abortion a crime since 1864, when it was still a territory. Accepting dissenting Justice Colleen Zahn’s view that the Idaho constitution’s meaning “must change with the times,” Brody wrote, would mean that it “would no longer be the voice of the people of Idaho—it would be effectively replaced by the voice of a select few sitting on this Court.”
The liberal Guttmacher Institute recently released a report identifying 24 states which, they say, have banned abortion or are likely to do so. These are what might be called “battleground states” for abortion litigation in the future. The supreme courts of only three of them—Mississippi, Montana, and Florida—have interpreted their constitutions to protect a right to abortion.
If the decisions in South Carolina and Idaho are any indication, the future of legislative attempts to protect the unborn will remain unsettled for some time. Stay tuned.
This piece originally appeared in The National Review