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Monday, February 6, 2023

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SC, ID: Two States, Two Very Different High Court Rulings On Abortion Laws

Thursday brought two very different state supreme court rulings on the constitutionality of anti-abortion laws: The Idaho Supreme Court upheld multiple laws and the South Carolina Supreme Court rejected a six-week abortion law.  

Thursday’s South Carolina ruling was the first such finding of a state-level right to abortion since last summer’s U.S. Supreme Court overturning of Roe v Wade. That June decision rightly restored jurisdiction over abortion policy to state governments and courts.

In a 3-2 vote, the South Carolina Supreme Court said the state’s ban of abortions after six weeks violated rights that were implied by the state constitution’s protection of privacy. As a result, abortion will be legal in the Palmetto State up to 20 weeks into pregnancy. 

In its 147-page ruling, the justices said “any such limitation [of privacy] must be reasonable” and “afford a woman sufficient time to determine she is pregnant and take reasonable steps to terminate that pregnancy.” The six-week timeframe in the now-invalidated state law is “quite simply, not a reasonable period of time for those two things to occur.”

Here’s the South Carolina constitution‘s privacy clause, in which a majority of the justices see an early-pregnancy abortion right: 

“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.”

A few hours after the South Carolina ruling, abortion foes in Idaho emerged victorious, as that state’s high court upheld three laws that effective ban all abortions other than cases of rape, incest or situations where a pregnancy jeopardizes the life of the mother. One of the laws upheld in Idaho is a Texas-style measure that enables enforcement via civil courts. 

Idaho’s 3-2 decision said the laws were valid under the Gem State constitution, since the state has a “legitimate interest in protecting prenatal fetal life in all stages of development, and in protecting the health and safety of the mother.” 

Unlike in South Carolina, Idaho’s majority opinion rejected the notion of an implied right to an abortion. Finding such an implied right, Justice Robyn Brody wrote, requires establishing that the right is “deeply rooted” in Idaho’s traditions and history at the time the purported abortion-enabling constitutional provisions were written. However, wrote Brody: 

“The relevant history and traditions of Idaho show abortion was viewed as an immoral act and treated as a crime. Thus, we cannot conclude the framers and adopters of the Inalienable Rights Clause intended to implicitly protect abortion as a fundamental right.”

Brody noted that Idaho’s citizens and lawmakers were free to pursue an amendment to the state constitution to incorporate a purported right to abortion.  

Similar challenges to state abortion laws are pending in Arizona, Georgia, Kentucky, Indiana, Iowa, North Dakota, Ohio, Utah, Wisconsin and Wyoming. 

Meanwhile, in Portland: 

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