The South Carolina Supreme Court has become the first to find a right to abortion in a state constitution since the U.S. Supreme Court said last June that there is no such right in the U.S. Constitution.
The Kentucky Supreme Court might have been the first, tentatively, but it still has not ruled in a case that it heard Nov. 15. Since then, two justices have retired and two new ones have been elected.
The South Carolina justices said the state’s ban on abortion afer the sixth week of pregnancy violated the state constitution’s explicit guarantee of privacy rights. Kentucky’s constitutional privacy rights rely on unspecific language and previous interpretations by the state Supreme Court.South Carolina’s constitution says “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.”
The court’s majority opinion said any limit of privacy rights “must be reasonable,” meaning that a woman needs “sufficient time to determine she is pregnant and take reasonable steps to terminate that pregnancy.” The court said that six weeks is “quite simply, not a reasonable period of time for those two things to occur” because “women typically do not realize they are pregnant until around six weeks.”
Kentucky also has six-week ban, but also a stronger ban, allowing abortion only to save the woman’s life. The latter was in a “trigger law” that took effect after the U.S. Supreme Court struck down Roe v. Wade.
A Louisville judge issued an injunction that blocked the trigger law, but a state Court of Appeals judge blocked the injunction, allowing the law to take effect. A fractured Supreme Court allowed it to stay in effect while it considered the case. It set the hearing for a week after the Nov. 8 election, in which voters defeated a proposed amendment to the state constitution, saying it does not grant a right to abortion or funding of it.
At least initially, the Supreme Court’s ruling will be on the injunction, not on the merits of the lawsuit, but a key piece of injunction law is the likelihood of prevailing on the merits.
Similar challenges to state abortion laws, citing state constitutional proviosions, are pending in Arizona, Georgia, Indiana, Iowa, North Dakota, Ohio, Utah, Wisconsin and Wyoming, according to Politico.
Four of the South Carolina court’s five justices are registered Republicans; Chief Justice Donald Beatty, who voted with the 3-2 majority, is a Democrat. All five were appointed by the Republican-conrolled legislature. Kentucky judges are elected by the people in nonpartisan races.