When the U.S. Supreme Court overturned Roe v. Wade on June 24, 2022, the court tossed the issue of abortion rights back to the states. Several states had trigger laws on the books that immediately made most or all abortions illegal. Other states have since moved to codify abortion rights.
We’ve also seen a flurry of activity in state courts, including two recent decisions that took opposite positions.
In Idaho, the state Supreme Court ruled 3-2 that the Idaho Constitution does not protect abortion rights. The court let stand a state law banning nearly all abortions in the state and accompanying penalties.
“We cannot read a fundamental right to abortion into the text of the Idaho Constitution,” read the majority opinion. “Since Idaho attained statehood in 1890, this court has repeatedly and steadfastly interpreted the Idaho Constitution based on the plain and ordinary meaning of its text, as intended by those who framed and adopted the provision at issue.”
The two dissenting justices argued that the right to abortion is protected under provisions of the state constitution that ensure the right to personal liberty.
“I … hold that Idaho women have a fundamental right to obtain an abortion because pregnancy – and whether that pregnancy may be terminated – has a profound effect on pregnant women’s inalienable right to liberty, as well as their rights and safety,” Justice John Stegner wrote. “The decision the majority hands down today is, in my view, simply wrong.”
In South Carolina, the state Supreme Court stuck down an abortion ban that outlawed the procedure after six weeks. The ban, the court ruled 3-2, violated constitutional provisions protecting the right to privacy.
The Associated Press reported that Justice Kaye Hearn, who wrote the majority opinion, held that the six-week ban was too strict because it does not give someone sufficient time to determine if they are pregnant and decide what to do about it.
“Six weeks is, quite simply, not a reasonable period of time for these two things to occur,” Hearn wrote.
State courts will continue to weigh in because other abortion-related cases are in the legal pipeline, and more are expected. Pro-abortion Americans must play a role well. In several states – even red ones – voters have used ballot initiatives to defend abortion rights.
Abortion bans violate the separation of church and state by forcing all of us to live under views about reproduction held by other people’s narrow religious beliefs. Americans who don’t support having their reproductive freedom held hostage to someone else’s religion are playing offense. That must continue until abortion rights are once again secure in all 50 states.
