The South Carolina Supreme Court announced a surprise development last week. stopped the state from enforcing a lawAbortion is prohibited after the sixth week of pregnancy. That law was enacted in 2021 in the run-up to the U.S. Supreme Court’s DobbsDecision that was overturned Roe v. Wade. The law’s proponents expected that the law would be applied in a post-RoeIt would bring an end to abortion in South Carolina.
But the 2021 law mysteriously included a provision that its enactment “must not be construed to repeal, by implication or otherwise, Section 44-41-20 [(the codification of Roe)] or any otherwise applicable provision of South Carolina law regulating or restricting abortion.”
Planned Parenthood of South Carolina filed suit to enforce the provision. The court granted the injunction. recognized what it called a “conflict in the law” and questioned “the constitutionality of the Act under our state’s constitutional prohibition against unreasonable invasions of privacy.”
No one would ever mistake South Carolina — one of the most conservative states in the nation — for a hotbed of support for reproductive rights. But the court’s decision is a reminder that state constitutions, even in bright red states, often afford protections and freedoms that go well beyondWhat the federal Bill of Rights says.
Although there are no state constitutions that contain an explicit guarantee of reproductive freedomAll across the country, advocates for reproductive rights are carrying on their fightAt the state level, often with reference to state constitutional protections for privacy, autonomy, and dignity.
The National Conference of State Legislatures is an example. notesThe constitutions of Alaska, Arizona, California and Florida contain specific provisions relating the right to privacy. This word is not found in the U.S. Constitution.
Alaska’s constitution, for example, declares that “The right of the people to privacy is recognized and shall not be infringed.” Section 23 of Florida’s constitution says that “Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein.”
Montana’s constitution includes this expansive provision: “The right of individual privacy is essential to the well-being of a free society.”
The Supreme Court’s DobbsThe national legal landscape was undoubtedly changed by the decision. It returned the abortion issue to the states, with Justice Samuel Alito arguing that the people in each state should decide what he described as a deeply divisive “moral” issue. What Alito didn’t discuss was how those decisions would fare in light of the rights recognized by state constitutions.
These rights will be the basis of the fight to protect reproductive freedom in the future.
The Center for Reproductive Rights notesThis was before Roe was overruled by the Supreme Court, “the high courts in 10 states recognized that their state constitutions protected abortion rights independently from and more strongly than the federal constitution or had struck down restrictions that the U.S. Supreme Court upheld even under Roe….”
It is no wonder, therefore, that progressives, who historically have taken a jaundiced view of federalism and states’ rights, now hope to use them to their advantage.
They are winning some significant wins, just like in South Carolina.
A judge in Michigan ruled last Friday enjoined county prosecutors from enforcing the state’s 1931 ban on abortion.
In an earlier article, the abortion-rights defenders hit the headlines with an overwhelming victoryIn a Kansas referendum, the voters overwhelmingly supported the proposal. rejectedA proposed amendment to the state constitution would have allowed the legislature ban abortion.
The aftermath of that vote saw the creation of the New York Times reported that “The Kansas vote implies that around 65 percent of voters nationwide would reject a similar initiative to roll back abortion rights, including in more than 40 of the 50 states.”
The amendment was proposed in response to a 2019 issue that was not well-known. ruling by the Kansas Supreme Court, which found that the state’s constitution protects the right to an abortion.
This ruling is instructive on the role that state constitutions play in the ongoing fight against abortion.
The case was brought by two abortion providersThe state law of 2015 that prohibited dilation or evacuation, an abortion procedure often used in the second half of pregnancy, was challenged by the plaintiffs.
The Kansas court said that Section 1 of the Kansas Constitution Bill of Rights “acknowledges rights that are distinct from and broader than the United States Constitution and that our framers intended these rights to be judicially protected against governmental action that does not meet constitutional standards.”
That provision states that “[a]ll men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.”
“Among the rights,” the court said, “is the right of personal autonomy,” which it called “fundamental.” That right, it went on to say “allows a woman to make her own decisions regarding her body, health, family formation, and family life — decisions that can include whether to continue a pregnancy.”
Since the DobbsDecision, abortion rights organizations filed lawsuits claiming a right to reproductive liberty under state constitutions across the nation, including in Utah and Kentucky, Idaho, Mississippi.
Reminding us of the intricacies of America’s federal system, NPR observes that those lawsuits are “not identical. Each appeals to specific lines of legal theory unique to each state, citing different state provisions and different case histories to support their arguments.”
The Idaho litigation alleges that banning abortion “violates the Idaho Constitution’s guarantee of the fundamental right to privacy in making intimate familial decisions.” The Kentucky litigation contends that an abortion ban violates “Sections One and Two of the Commonwealth’s Constitution” by infringing on women’s rights to “privacy and self-determination.”
Federalism is not always a good thing. a good in and of itself, and it is certainly no substitute for a robust, nationwide guarantee of women’s bodily integrity and reproductive rights. But in the wake of the Supreme Court’s attack on those rights, state constitutions may provide the grounds for protecting them.
In 2020, Gurbir S. Grewal, the attorney general of New Jersey, and Jeremy Feigenbaum, the state’s solicitor, urged progressives to “take a page from our conservative friends and forge a new form of progressive federalism.” The ongoing litigation of pro-choice groups is a prime example of that effort.
Justice William Brennan accurately described the stakes in this strategy, more than forty years ago, during the dawn of an earlier era conservative judicial activism at the Supreme Court. wrote that “The legal revolution which has brought federal law to the fore must not be allowed to inhibit the independent protective force of state law — for without it, the full realization of our liberties cannot be guaranteed.”
