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Analysis

Abortion Cases Take Originalism Debate to the States

In striking down an abortion ban in South Carolina and upholding one in Idaho, state high courts are grappling with the use of history in constitutional interpretation.

January 10, 2023
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Last Thursday, two state supreme courts issued consequential but opposite decisions on abortion rights under their state constitutions. The South Carolina Supreme Court struck down its state’s six-week abortion ban, while the Idaho Supreme Court upheld a near-total ban on abortion. 

These two decisions, both 3–2, highlight how much of a patchwork this country will remain on reproductive rights. They also reflect strikingly different approaches to the use of history in constitutional interpretation, continuing a critical conversation about the implications of the strict originalism currently being applied by a majority of the U.S. Supreme Court.

Citing an express right to privacy added to the state constitution in 1971, the South Carolina court struck down a six-week abortion ban. The court rejected originalist arguments that this right should be limited to data privacy because the committee originally proposing it in the 1960s had been focused on the intrusiveness of electronic surveillance.

Justice Kaye Hearn, the only woman on the court (until she retires later this month) and the author of the plurality opinion, reasoned that to rely on this committee history would be to “ignore[], and arguably perpetuate[], the societal landscape of th[at] time.” She pointed out that South Carolina has an especially regrettable history when it comes to women’s rights, a history that includes failing to ratify female suffrage until 1969 and being the second-to-last state in the country to allow female jurors around that same time (Mississippi was last).

Given this history, the court wrote, it is not surprising that the nine-member committee drafting this constitutional amendment was all male, nor that “including a woman’s right to bodily autonomy [was not] uppermost in” the members’ minds. Nevertheless, the amendment itself included the broad term “privacy.”

To let the committee’s “blinkered” perspective about what privacy concerns were most important control constitutional interpretation in 2023 would be, in the court’s words, to “perpetuate” a discriminatory society that failed to take seriously issues that “impact women most severely.” Instead, the court vowed, this evidence of intent would “neither guide nor end our inquiry.” Hearn’s refusal to channel the perspectives of male authorities from history also came through during oral argument, where she made pointed remarks that the experience of pregnancy is uniquely personal in ways understood by her and by the woman arguing on behalf of petitioners, but not by the three men arguing for the state.

Mere hours after the South Carolina Supreme Court issued its decision, the Idaho Supreme Court upheld one of the most extreme abortion bans in the county. This ban criminalizes abortion in all circumstances, although it allows physicians to assert as a defense that they were providing care to save a woman’s life or in cases of rape or incest. Under such a threat, it is doubtful that many physicians will provide these medically necessary abortions, if any.

The Idaho decision itself echoes the U.S. Supreme Court’s originalist analysis in Dobbs, which overturned Roe v. Wade with the rationale that abortion rights were not recognized at the time the 14th Amendment was ratified. The majority in Idaho, pointing to the lack of an “explicit right to abortion” in the state Constitution, assessed “whether the alleged right is so ‘deeply rooted’ in the traditions and history of Idaho at the time of statehood that we can fairly conclude that the framers and adopters . . . intended to implicitly protect that right.” Reviewing laws and regulations from 1889, the court concluded that abortion was not “viewed as a right entitled to heightened protection.” The decision drew a forceful dissent with similar themes to the South Carolina plurality opinion.

The South Carolina court’s decision — and Idaho dissent — are a resounding rebuke to the strict originalism in Dobbs, echoing the Dobbs dissent’s observation that “Of course, ‘people’ did not ratify the Fourteenth Amendment. Men did. So it is perhaps not so surprising that the ratifiers were not perfectly attuned to the importance of reproductive rights for women’s liberty, or for their capacity to participate as equal members of our Nation.” For this reason, the Dobbs dissent argued, “When the majority says that we must read our foundational charter as viewed at the time of ratification . . . , it consigns women to second-class citizenship.”

In grappling with originalism’s regressive real-world implications, the South Carolina decision, like the Dobbs and Idaho dissents, touches on deep questions about democracy: who gets to exercise power, whose concerns are deemed fundamental, and how courts should apply constitutional norms of liberty and equality that were articulated by exclusive bodies embedded in societies that condoned inequality.

For centuries, male philosophers, jurists, and lawmakers — including James Madison — have rhapsodized about the fundamental right to bodily autonomy. It’s just that they failed to notice or care how uniquely pregnancy and childbirth affect women’s bodily autonomy, even as many of the women around them were resorting to risky, painful, and even sometimes deadly treatments in their desperation to end their pregnancies.

It is not enough to say, as the current U.S. Supreme Court majority often implies, that tying fundamental rights to “deeply rooted” traditions is more democratic and therefore more legitimate because it leaves contested policy issues to legislatures. In other cases, the Court has not hesitated to overrule legislatures (and whatever popular will they reflect), as they did recently in striking down gun regulations in New York State Rifle & Pistol Association v. Bruen.

Such defenses of originalism also ignore the glaring reality that, partly thanks to recent U.S. Supreme Court decisions, legislatures are often misaligned with popular will due to gerrymandering, voter suppression, and unequal campaign funding. Indeed, the South Carolina court noted that when the state legislature passed the 6-week ban in 2022, it rejected a proposal to submit the issue instead for a public referendum. (The court further noted that at least six other states have held such referenda since Dobbs, all of which came out in favor of abortion rights.)

As these two decisions falling on the same day underscore, the constitutional debate over abortion is far from over, and it is intertwined with the larger debate over extreme originalism and its legitimacy as a method of constitutional interpretation. These debates may well prove far more lively in the state courts than in the federal courts, where the lines have already been so clearly drawn.