When the Supreme Court overturned Roe v. Wade and the constitutional right to abortion in June, it declared that it was sending the issue back to the “people and their elected representatives.” But the fight has largely moved to a different set of supreme courts and constitutions: those in the states. This month, South Carolina’s highest court handed down its ruling that the right to privacy in the state constitution includes a right to abortion, a decision that overturned the state’s six-week a
A protester steps over discarded anti-abortion signs at the 50th March for Life, in Washington on Jan. 20, 2023.
The Supreme Court’s decision has left abortion rights groups with few other options. In their most hopeful scenario, state courts and ballot initiatives to establish constitutional protections would establish a firmer guarantee for abortion rights than the one in Roe, which rested on a protection of privacy that was not explicit in the U.S. Constitution.
“The terrain has shifted, and it’s not just a matter of we’re turning our attention from federal to state courts; it’s that we’re turning our attention to a whole other range of institutions and opportunities which present their own possibilities but also pitfalls,” said John Dinan, a politics professor at Wake Forest and the author of a forthcoming Montana Law Review article on the role of state courts and constitutions in the future of abortion laws.
Some opponents of abortion have argued that the rights to liberty in state constitutions should extend not only to women but also to fetuses. Thomas Fisher, the solicitor general of Indiana, said during oral arguments on the case there earlier this month, “There’s a failure to recognize that there is something else on the other side of the equation, and that is the unborn life.”
As the U.S. Supreme Court became more conservative in its approach in the 1970s, Justice William Brennan, himself a former justice of the New Jersey Supreme Court, wrote an influential article urging activists to rely more on state constitutions to expand civil liberties, noting that state courts had relied on them to establish rights, including those to housing and to jury trials, beyond what federal courts had done.
While 11 state constitutions explicitly mention privacy — the basis of the argument for Roe — only two of those are in states that ban abortion. One is South Carolina, where, earlier this month, a divided court found that the right to privacy extended to a right to abortion. That decision was a happy surprise to abortion rights groups, not least because the justices, while nonpartisan, were appointed by the Republican-controlled state Legislature.
And lawsuits in two states, Wyoming and Ohio, argue for a right to abortion based on constitutional amendments the states’ voters passed in protest to President Barack Obama’s broad overhaul of health care, protecting citizens’ rights to make their own health care decisions. The court also noted that it had previously recognized a constitutional right to privacy protecting matters “of no proper concern to others,” including “things which might result in shame or humiliation, or merely violate one’s pride in keeping private affairs to [one]self.” That includes a right to determine “family composition.”
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