Last week, the South Carolina Supreme Court became the first state high court to find a state-level right to abortion since the U.S. Supreme Court overturned Roe v. Wade last June, abolishing the federal constitutional right to abortion.
When the South Carolina Supreme Court struck down the state’s ban on abortion after six weeks of pregnancy, it ruled that the law was unconstitutional because there was “an unreasonable restriction upon a woman’s right to privacy.” The decision is considered a major win for abortion rights advocates in the escalating battle over reproductive rights, opening up the possibility for other states to follow.
“[The decision is] building on a body of jurisprudence throughout the country, holding that state constitutions do in fact recognize and independently protect abortion rights, which is absolutely crucial without federal protection,” Genevieve Scott, senior counsel at the Center for Reproductive Rights, told Yahoo News. (The center was among the group of litigators that represented plaintiffs in the South Carolina decision.)
“The ruling in South Carolina is based on a clause in the South Carolina state constitution that recognizes the right to privacy ... so that wouldn’t automatically mean a woman’s right to choose is protected,” Robert F. Williams, director of the Center for State Constitutional Studies at Rutgers University-Camden, told Yahoo News.
The 3-2 South Carolina ruling left intact the state’s existing ban on most abortions at 20 weeks after fertilization. Republican Gov. Henry McMaster signed the abortion law in 2021. He criticized the state court’s decision on Twitter, saying it “found a right in our Constitution which was never intended by the people of South Carolina.”
Williams points out that while the South Carolina Constitution explicitly includes a right to privacy, “there’s no right to privacy in the text of the U.S. Constitution.” In the landmark 1965 Griswold v. Connecticut ruling, which legalized contraception, the U.S. Supreme Court found there was an implied right to privacy in the Bill of Rights. Griswold then paved the way for the 1973 Roe decision on federal abortion rights.
On the other side of the abortion battle, the Idaho Constitution, which doesn’t explicitly declare a right to privacy, upheld its ban on abortion at all stages of pregnancy the same day the South Carolina ruling came down.
In the discussion below, both Scott and Williams further explained to Yahoo News what’s behind the South Carolina decision and where abortion-rights advocates go from here. (Some responses have been edited for length or clarity.)
Yahoo News: Could South Carolina’s decision translate to other state courts?
Robert F. Williams: It certainly could. When you get state courts like South Carolina with a privacy clause making a ruling like that, certainly other states are going to look at it, but it doesn't mean they have to follow it.
What does South Carolina’s ruling on abortion mean for surrounding states with abortion bans?
Genevieve Scott: That is part of why this is such a momentous ruling, because so many of the states surrounding South Carolina are restrictive states, and already we have seen an enormous number of patients flowing in from those states. What this means is that people who are able to afford to be able to travel will be able to access care.
Could the U.S. Supreme Court overturn the South Carolina Supreme Court decision?
Williams: The South Carolina decision is based on the South Carolina Constitution, so it’s a matter of state law. And the United States Supreme Court literally has no jurisdiction, no power over state law questions. So it's what is referred to as an adequate and independent state law ground for the decision. And the U.S. Supreme Court just doesn't have any authority to hear that kind of a case.
But if the South Carolina Legislature were to propose an amendment that says, “The privacy provision does not cover abortion,” that could be put up for a vote of the people in South Carolina.
Where are pro-abortion-rights forces going next?
Scott: The Center for Reproductive Rights is challenging abortion bans throughout the country, and right now, for example, we are awaiting critical decisions from courts in North Dakota, Oklahoma, Georgia and Florida. We have just done an oral argument in Montana, and we'll be doing an oral argument at the end of the month in Kansas. So many of these cases are ongoing, and they will determine the state of abortion access, including in places like Kentucky, Indiana and Ohio.
We know that many states were not in session when Roe was overturned, and so now we’re going to see what happens as those states come back into session and anticipate that many states will try to pass even more extreme abortion restrictions.
Aside from legal action, what are other ways pro-abortion-rights forces are taking action?
Scott: Of course, state constitutions will continue to be a critical vehicle to protect abortion rights. But, for example, last year we saw a ballot initiative throughout the country like the one in Michigan, where the people of Michigan established that there is a constitutional right to abortion under their state constitution. And that will be another really important path moving forward.
We’ve also seen that when you put the question directly to voters, pro-abortion-rights wins. We won all abortion ballot measures last year, including defeating anti-abortion measures in Kentucky and Kansas.
But ballot initiatives really won’t be possible in every state, and so we also are working on federal legislation like the Women’s Health Protection Act to ensure protection for abortion rights nationwide. The reality is that the U.S. Supreme Court’s decision has left us with a patchwork of unequal laws. And we at the Center for Reproductive Rights will keep pushing for the Women’s Health Protection Act until it passes.