The South Carolina constitution provides a right to privacy that includes the right to abortion, the state Supreme Court said Thursday, noting that “the decision to terminate a pregnancy may be based on highly personal and private considerations.”

The decision overturns a state law banning abortions after about the sixth week of pregnancy. More broadly, it’s a victory for abortion rights in the South, where states severely restrict access.

In June by the US Supreme Court in Roe v. This is the first final ruling by a state Supreme Court on the state constitutionality of abortion since overturning Wade, ending abortion rights under the federal constitution in force for half a century, and leaving the matter to the states.

Abortion rights groups responded to the decision by filing lawsuits in 19 states, seeking to establish the right to abortion under state constitutions, in many cases overriding explicit provisions in documents protecting a woman’s privacy and equal rights. was cited. The South Carolina case was an important first test for — and the success of — that strategy.

“This is a huge victory in the movement to protect legal abortion in the South,” said Jenny Black, president of Planned Parenthood South Atlantic.

The five justices ruled 3-2 that a state ban on abortion after about six weeks’ pregnancy violated a provision in the state constitution that says “the right of the people to their persons, homes, papers, and unreasonably To be safe under influence against.” Search and seizure and unwarranted invasion of privacy will not be violated.”

Nevertheless, the Court’s majority held that the right to abortion “was not absolute, and must be balanced against the State’s interest in protecting unborn life.”

Republican-controlled state legislatures could attempt to test this by passing other restrictions on abortion later in pregnancy, but would be limited by the court’s broad protections for abortion.

The state’s attorney general, Alan Wilson, said in a statement that he was working with the governor’s office to review “all of our available options moving forward.”

“We respectfully, but strongly, disagree with the court’s decision,” he said.

governance in south carolina won’t necessarily translate to other states, given differences in the makeup of their courts and the language of their constitutions.

Still, it was an important decision in a post-ro-ro world, and one that will help shape arguments as cases move forward in other states.

Abortion rights advocates argue that once some states begin to recognize a constitutional right to abortion – either because of court rulings like this one or the results of ballot initiatives in Kansas and Michigan last year – others will follow suit. would follow.

The South Carolina case was related to a law passed by the state legislature in 2021 banning abortions after fetal heart activity is detected, usually around six weeks of pregnancy, with the exception of pregnancies due to rape or incest. with, or that endanger the life of the mother. The legislation was blocked by federal courts because of Roe protections. It went into effect shortly after Roe was overturned, but several weeks later the state Supreme Court unanimously stayed it again while litigation proceeded.

Since the Supreme Court’s decision to overturn Roe v. Wade, the South Carolina legislature has attempted to pass stricter restrictions, but has so far failed.

The state Supreme Court’s decision almost certainly blocks that effort, and leaves only limited options. The State’s appeal has ended. Officials may attempt to amend the state constitution to explicitly repeal any provision for abortion rights, although efforts to do so have failed in states such as Kansas.

“We know lawmakers will redouble their relentless efforts to restrict essential health care, but we will continue to use every tool at our disposal to restore abortion access across the country once and for all.” Will keep,” said Nancy Northup, president of the Center for Reproductive Rights, one of the groups filing the lawsuit.

Carol Tobias, chair of the National Right to Life Committee, said she was surprised and disappointed by South Carolina’s decision. She argued that the privacy protections in the South Carolina constitution were not designed to protect abortion access.

The South Carolina justices noted in their opinion that other state constitutions include a similar right to privacy. And while he recognized that the language in the South Carolina provision does not explicitly refer to abortion, he said such a right could reasonably be expanded based on history and past court decisions. He rejected the arguments of the State Legislature’s lawyers and the Attorney General that the provision only applies to “search and seizure”.

On Twitter, Murrell Smith, the speaker of the South Carolina House, criticized the state’s Supreme Court for going against a US Supreme Court decision to return full control of abortion rights to state legislatures.

“Unfortunately, the South Carolina Supreme Court followed the path of the US Supreme Court in Roe v. Wade, creating a constitutional right to abortion where none exists,” he wrote. “Today’s decision fails to respect the concept of separation of powers and prevents the people of this state from making decisions that were meant to reflect their voices. Instead, South Carolina was left with a decision that does not reflect the political process or will of our state.

The court’s ruling was particularly striking for a state with a history of conservative politics. The judges noted that South Carolina lagged behind other states in granting rights to women: it waited more than 50 years after ratification of the 19th Amendment to officially ratify its provisions giving women the right to vote, And it was the second-last state—almost a century after some western states and ahead only of Mississippi—to allow women to serve on juries.

The attorney general and lawyers in the legislature tried to argue against abortion rights by citing the work. A historic legislative committee from the mid-1960s Who changed the constitution of the state. That committee recommended allowing literacy tests for voters—even though a federal law, the Voting Rights Act of 1965, banned them—as well as retaining language forbidding interracial marriage.

In their ruling on Thursday, the judges noted that the committee had not included a single woman. He wrote, “We cannot abdicate our role of declaring whether a legislative act is constitutional or not by blinding ourselves to what has happened since then.”

Decisions taken under state statutes have the potential to protect access to abortion more broadly than Roe v. Wade did when it was decided in 1973.

While the Roe decision found a right to privacy in various provisions of the Constitution, that right was implied, not explicitly stated. This opened the door to decades of criticism, mostly from conservatives, that it had been incorrectly decided.

Writing for the majority in Dobbs v. Jackson Women’s Health Organization, the case that overturned Roe in June, Justice 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 advocate of abortion rights, said she thought abortion rights were better enshrined under the Constitution’s explicit guarantee of equal protection under the law. Happen.

Roe prohibited states from banning abortions before a fetus is viable outside the womb, or roughly 24 weeks. The Dobbs decision returned full authority to regulate abortion to state legislatures. Roughly half the states had bans or other restrictions—some of them more than a century old—already on his books that went into effect after Dobbs’ decision.

Unlike the federal constitution, many state constitutions explicitly state the right to privacy. In South Carolina, voters approved an amendment in 1971 that established protections against “unreasonable invasions of privacy”.

In oral arguments in October, attorneys for abortion providers argued that the provision protected a woman’s right to make her own health care decisions, including whether to have an abortion.

The judges, elected for ten years by the state’s general assembly, asked whether agreeing with abortion providers would oblige them to set a new gestational age limit on abortion, or no limit on abortion at all. They were concerned about how far the right to privacy would have to extend: would it protect bigamy? Polygamy? Assisted suicide?

Julie Murray, a senior staff attorney for Planned Parenthood, agreed that the right to privacy was not absolute. But she said that in 1993, the court ruled that under the confidentiality provision, a death row inmate had a right to bodily autonomy that prevented the state from forcing him to take medication that would “enable” him to could be executed. The autonomy, she said, should be suitably extended to women up to six weeks pregnant.

That said, it’s six weeks before many women know they’re pregnant. “Whether it takes you 10 days or a month to find out is a decision that should be left to women,” Ms Murray argued.

Thursday’s ruling suggested the justices were sympathetic to that argument, noting that the state’s ban at six weeks is “a substitute for abortion outright in many cases.”

Abortion providers found particular sympathy in the oral arguments of Kaye Hearn, the lone female justice on the bench, who wrote the majority opinion. In oral arguments, Justice Hearn noted that the plaintiffs’ side in the courtroom was all female and the state’s side was all male. Most women who are six weeks pregnant don’t want anyone to know, she said, and many women don’t want anyone to know they’ve had a miscarriage.

“I know you are not a woman,” she told a lawyer for the state government. “But what could be more personal than that decision?”

ava sasni Contributed reporting.

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