March for Life Returns to Washington, as Abortion Cases Wax in Courts
The future of abortion is being written at courthouses and ballot boxes across America.
Thousands have been marching Friday in the first March for Life demonstration since Roe v. Wade was consigned to the judicial dustbin, yet even as Washington is dealing with the throngs, the future of abortion is being written at courthouses and ballot boxes across America. It is now an epic in 50 chapters.
The majority opinion in Dobbs v. Jackson Women’s Health Organization announced that the “authority to regulate abortion is returned to the people and their elected representatives,” but that return did not spell the end of the role of judges in weighing the question. By letting abortion go to the people, the high court let myriad of lawsuits bloom.
The most recent abortion ruling was also a landmark; the first final decision by a state supreme court. It emanated from South Carolina, where that state’s ban on abortions after six weeks was ruled incompatible with the Palmetto State’s constitution.
The South Carolina justices found their governing parchment to encompass a right to privacy, writing that the “decision to terminate a pregnancy rests upon the utmost personal and private considerations imaginable.” In other words, the state is precluded from enforcing a blanket abortion ban.
By a 3-to-2 margin, the justices found that right encoded in language that tracks the Fourth Amendment’s ban on unreasonable searches and seizures. Similar to the Roe court, these jurists found that the right to an abortion “was not absolute, and must be balanced against the State’s interest in protecting unborn life.”
The speaker of the South Carolina house, Murrell Smith, accused the court of “creating a constitutional right to an abortion where none exists.” The justices retorted that they could not “relegate our role of declaring whether a legislative act is constitutional.”
In Indiana, an abortion ban, with exceptions for rape, incest, and the life of the mother, has been stayed since September when a county judge found that it likely violated the Hoosier State constitution’s privacy provisions. That decision is now being argued before Indiana’s supreme court.
The American Civil Liberties Union, which is fighting the ban, points to a provision in Indiana’s charter that promises, in words lifted from Thomas Jefferson, “life, liberty, and the pursuit of happiness.” The ACLU decodes in those words the autonomy “to manage one’s own life.”
The Sun spoke with attorney James Bopp Jr., a Hoosier who has long been on the front lines of abortion litigation. He characterized the abortion-rights litigants as “unabashed in arguing for the living Constitution,” meaning that the parchment should evolve with the times. He predicted that liberal judges would yield “many Roe v. Wade” decisions at the state level.
The Indiana state attorney general warned the court against recognizing a “novel, unwritten, historically counter-indicated right to abortion.” One justice, Christopher Goff, asked, “Why shouldn’t there be a referendum and that issue put to the people?”
It is no idle question, as referendums since Dobbs have largely tilted in the direction of abortion rights. Michigan and California voters enshrined constitutional rights to the procedure. Kansans and Kentuckians rejected measures that would have amended their constitutions to ban it. Montanans voted against more severe criminal charges for certain rare species of abortion.
Anti-abortion forces did secure a victory in Idaho, where last week that state’s supreme court upheld a trio of three such laws, reasoning that the state has a “legitimate interest in protecting prenatal fetal life in all stages of development, and in protecting the health and safety of the mother.”
The majority opinion rejected arguments that appealed to Idaho’s constitution: “The relevant history and traditions” of the state “show abortion was viewed as an immoral act and treated as a crime,” and thus the court could “not read a fundamental right to abortion into the text of the Idaho Constitution.”
One state to watch is Florida, whose state constitution grants the “right to be let alone and free from governmental intrusion into the person’s private life.” In March, the Sunshine State passed a ban on abortion after 15 weeks. In July, a state circuit judge issued an injunction, finding that the law ran afoul of that right to privacy.
An appellate court swatted away the injunction, and the case is now before Florida’s supreme court. The ban holds, for now.