Last Thursday, two state supreme courts handed down rulings in abortion cases that went in opposite directions. Idaho’s high court upheld several challenged abortion restrictions, including a prohibition that lasts throughout pregnancy, subject to affirmative defenses that have the same effect as exceptions in other state abortion laws. South Carolina’s supreme court struck down the state’s heartbeat law. Neither state’s constitution contains any reference to abortion, reducing those challenging the laws in both cases to trying to sell interpretations that abortion was somehow implicitly guaranteed by some very general provisions. Of course, the U.S. Supreme Court bought such an argument for nearly half a century between its decision in Roe v. Wade in 1973 and its recognition in Dobbs v. Jackson Women’s Health Organization last year that that long-running ruse purporting to be constitutional law should be formally scrapped.
In Idaho, the challenge invoked the state constitution’s Inalienable Rights Clause, which protects “certain inalienable rights” with express references to the rights to life, liberty, property, happiness, and safety; and the Search and Seizure Clause and Reserved Rights Clause, which are respectively nearly identical to language in the Fourth and Ninth Amendments of the U.S. Constitution. In other words, the challenges had no more merit than the grasping at straws that occurred under shifting rationales for an implicit abortion right between Roe and Planned Parenthood v. Casey in the U.S. Supreme Court.
The Idaho court split 3–2, with a majority opinion by Justice Robyn Brody that closely tracked the reasoning in Dobbs for why abortion was not a fundamental right that could be read into the constitution: “a ‘right to abortion’ has no support in Idaho’s deeply rooted traditions or history at the time” the cited provisions “were framed and adopted.” Abortion had been criminalized in Idaho since 1864, during its territorial days, and remained so through statehood starting in 1890 until Roe overrode state legislatures late in the next century. It was sufficient that the challenged laws passed deferential “rational basis” review, “and we do not judge the wisdom of that choice on rational basis review.” For the court, “the questions of whether a law passes constitutional muster—and whether a law is good policy—are distinct.”
Idaho also rejected arguments grounded in the state’s Due Process Clause and Equal Protection Clause. On the latter: “Only women are capable of pregnancy,” and “[t]his is not sex-based discrimination against women any more than a law regulating unlicensed vasectomies or prostate treatments would be discriminatory against men.”
The two dissenting justices wrote separately, John Stegner maintaining that there is a right to abortion on demand at all stages of pregnancy, Colleen Zahn arguing more narrowly that the constitution required a health exception for the mother that somehow rendered all of the challenged statutes deficient.
It is perhaps a fitting commentary on the discombobulated state of constitutional defenses of abortion that like the two Idaho dissenters, all three South Carolina Supreme Court justices who voted to strike down the heartbeat law wrote separately, unable to agree on a rationale. In the court’s lead opinion, Justice Kaye Gorenflo Hearn drew her conclusion from the clause protecting people from “unreasonable invasions of privacy” in the state constitution’s analogue to the Fourth Amendment. The phrase was adopted in 1971 by constitutional amendment, but it immediately followed a clause that addressed “unreasonable searches and seizures.” There is nothing in its history to suggest that proponents thought they were protecting abortion; debates suggested concern about the potential abuses of emerging electronic surveillance technology and reflected an awareness of the U.S. Supreme Court’s contraception decision in Griswold v. Connecticut, but that was it.
Justice John W. Kittredge in dissent noted the importance of context and exposed the absurd consequences of departing from it in favor of giving maximum linguistic breadth to privacy:
[N]o rational person would contend the State does not have the authority to enact laws criminalizing assault, rape, theft, child abuse, drug trafficking, and the like. . . . There is not the slightest prospect that a court would contravene the will of the people, as codified by their elected representatives, because the law amounts to an invasion of privacy.
The same could be said of many other actions that may be the subject of differing viewpoints, including bigamy, prostitution, gambling, and assisted suicide.
Chief Justice Donald W. Beatty agreed with Hearn on privacy but expanded his conclusion to a strident embrace of state equal protection, procedural due process, and substantive due process claims. His opinion was already running off the rails by its second paragraph, where he took “judicial notice of the fact that at six weeks of pregnancy there is no fetus, baby, or child as those terms are commonly understood to mean. What actually exists at this stage of pregnancy is an embryo containing an amorphous collection of cells.”
Justice John Cannon Few concurred in the majority judgment while disagreeing with both colleagues’ conclusions. He hinged his vote on “one particular factual question” that he maintained the legislature failed to entertain: “Can a pregnant woman even know she is pregnant in time to engage in a meaningful decision-making process and—if her choice is to not continue the pregnancy—make the necessary arrangements to carry out an abortion?”
Ed Whelan’s analysis of this case, Planned Parenthood South Atlantic v. South Carolina, identifies Few’s misunderstanding of legislative findings. I will just add that it is a particularly muddled opinion. It seems to advocate a standard that strongly resembles (without citing) the one proposed by Chief Justice John Roberts in Dobbs—does a restriction leave women a “reasonable opportunity” to abort? As Few puts it, “privacy rights guarantee that pregnant women . . . must have a meaningful opportunity to exercise that choice,” but he adds that “there is no constitutional right to an abortion.” In another section, he also seems to suggest that if the state legislature had passed legislation recognizing personhood to begin at conception, he would vote to sustain a total ban on abortion at all stages. Words escape me as to how to classify such an opinion.
What I can say is that none of the three justices in the majority wrote an originalist opinion, contrary to a recent article by Jacob Neu maintaining that “originalist jurisprudence led to this result” in the case. In fact, Justice Hearn’s driving point was that she was unconstrained by the original meaning attached to the state constitution’s privacy provision and could instead stake her position on “everything that has transpired since the amendment was adopted.” In other words, the decidedly anti-originalist Roe and state courts that followed its lead. It was Justice Kittredge in dissent who “view[s] the privacy provision in line with its understood meaning at the time it was adopted.”
South Carolina is a state that empowers its state legislature to appoint supreme court justices. While strongly Republican, it is not immune from the unfortunate judicial appointments that have long plagued Republican presidents. (Think of the U.S. Supreme Court in Roe and Casey, both cases in which five justices who voted to constitutionalize abortion as a right were appointed by Republicans.) The failure here was not originalism. It was the refusal of justices to adhere to originalism, to choose instead to write outcome-oriented opinions.
Neu seeks an opening for advocating natural law, his preferred theory of constitutional interpretation, as an alternative to originalism. I have no problem with the notion of judicially enforceable natural law principles—only with shedding of historical context to discern those principles. A methodology of natural law divorced from original meaning is much easier to craft to fit a judge’s favored outcome.
While judicial developments in South Carolina offset the good news from Idaho, it has been clear from the day Dobbs was decided that the activist temptation would be difficult for many state judges to resist. Roe, decided 50 years ago this month, is gone, but there are still judges in a number of states willing to take the abortion issue away from the people’s elected representatives.