Opinion by Ruth Marcus: A recent ruling in South Carolina offers a model for other state courts navigating the post-Roe legal landscape.
“It’s a monumental victory for the entire region,” said Genevieve Scott of the Center for Reproductive Rights.While it lasts. There is ample reason to fear that the victory could be fleeting. As the addition of three Trump-nominated justices to the U.S. Supreme Court demonstrated, one way to deal with a ruling you don’t like is to change the composition of the court, and that’s far easier to do on the state level, where justices are often elected and face term limits.
This happened in Iowa after its Supreme Court in 2018 found that the state constitution protected abortion rights. In 2019, the governor was given greater power to stack the court nominating commission. Last year, the process reached its intended conclusion: A transformed Iowa Supreme CourtAlready, there is talk of similar machinations in South Carolina.
That’s not the only risk. The ruling itself offers a pathway for eviscerating abortion rights: Rather than set any deadline, eliminate them entirely. If that sounds upside down, it is, but that was the reasoning of the justice who provided the third vote for the 3-2 majority. Two justices, Kaye G. Hearn and Chief Justice Donald W. Beatty, found that the state constitution, which was amended in 1971 to provide that “unreasonable invasions of privacy shall not be violated,” protects the right to have an abortion. But the third, Justice John Cannon Few, explicitly said it didn’t.
In other words, Few’s position incentivizes South Carolina lawmakers to go even further than the already radical six-week ban. Will they? At a special session called last year after the U.S. Supreme Court’s decision in
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