Abortion Debate Plays Out in State Supreme Courts

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United States Supreme Court, Washington, D.C.
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After the U.S. Supreme Court overturned Roe v. Wade and Planned Parenthood v. Casey in the June 24, 2022 ruling in Dobbs v. Jackson Women’s Health Organization, each state has had the right to determine whether abortion is legal within its borders. 

On Jan. 5, 2023, the South Carolina Supreme Court overturned a South Carolina law that banned abortion at about six weeks into a pregnancy. The Court stated, “the decision to terminate a pregnancy rests upon the utmost personal and private considerations imaginable.” In a 3-2 decision the Court found the ban violated the state constitution, which states: “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 South Carolina Supreme Court decision is the first by a state supreme court since the U.S. Supreme Court ruling. 

Later that same day, the Idaho Supreme Court ruled that the Idaho state constitution does not include a right to abortion, leaving in place the state’s three abortion bans. The majority decision stated, “the relevant history and traditions of Idaho show abortion was viewed as an immoral act and treated as a crime.” According to New York Times reporter, Ava Sasani, the ruling leaves three abortion bans in place: “one that allows family members of the aborted fetus to sue abortion providers in civil court, another that prohibits abortions after six weeks of pregnancy, and a third that bans all abortions from conception, with exceptions for rape, incest or a medical threat to the life of the mother.”

The Brennan Center for Justice reported on Sep. 28, 2022 that prior to the Dobbs decision “[c]onstitutions in 10 states — Alaska, Arizona, California, Florida, Kansas, Massachusetts, Minnesota, Montana, New Jersey, and New Mexico — have been interpreted by state high courts to guarantee the right to abortion or protect access more strongly than the federal constitution.”

Discussion Questions

1. Should abortion be legal? Should the federal government or individual state governments determine the legality of the procedure? Explain your answer(s).

2. Are abortions covered by the right to privacy? Why or why not?

3. Should others (family members or other citizens) be allowed to sue abortion providers? Why or why not?


Brennan Center for Justice, “Roe v. Wade and Supreme Court Abortion Cases,” brennancenter.org, Sep. 28, 2022

Ava Sasani, “Idaho Supreme Court Upholds Abortion Bans,” nytimes.com, Jan. 6, 2023

Kate Zernike, “South Carolina Constitution Includes Abortion Right, State Supreme Court Rules,” nytimes.com, Jan. 6, 2023