The South Carolina Constitution includes abortion rights and state Supreme Court rules
While the Roe decision found a right to privacy in various provisions of the Constitution, that right was implied and not explicitly stated. It opened the door to decades of criticism, mostly from conservatives, that it was decided badly.
Writing for the majority in Dobbs v. Jackson Women’s Health Organization, the case that overturned Roe in June, Judge Samuel A. Alito wrote that the right to privacy was “not mentioned” in the Constitution. Even the late Justice Ruth Bader Ginsburg, one of the court’s liberals and an abortion rights champion, said she believed abortion rights would have been better secured under the explicit guarantee of the Constitution of equal protection under the law.
Roe prohibited states from banning abortion before a fetus is viable outside the womb, which is around 24 weeks. The Dobbs decision returned full authority to regulate abortion to state legislatures. About half of the states had bans or other restrictions — some of them over a century old — already on their books that took effect once Dobbs was ruled.
Unlike the federal constitution, many state constitutions explicitly mention a right to privacy. In South Carolina, voters approved an amendment in 1971 that established protections against “unreasonable invasions of privacy.”
During oral argument in October, attorneys for the abortion providers who sued argued that the provision protected a woman’s right to make her own health care decisions, including having an abortion.
The judges questioned whether agreeing with abortion providers would require them to set a new gestation limit for abortions, or result in no limits on abortion. They worried about how far the right to privacy should extend: would it protect bigamy? Polygamy? Assisted suicide?
Julie Murray, senior lawyer for Planned Parenthood, agreed that the right to privacy was not absolute. But she noted that in 1993 the court ruled that under the privacy provision, a death row inmate had the right to bodily autonomy that prevented the state from forcing him to take drugs. that would make him “competent” enough to be executed. That autonomy, she said, should reasonably extend to women six weeks pregnant.
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