The top state courts in conservative Idaho and South Carolina have gone in opposite directions on challenges to abortion bans.
, which blocks enforcement of a ban after cardiac activity can be detected, are the latest examples of the patchwork of policies imposed since the U.S. Supreme Court last year struck down Roe v. Wade, which had guaranteed the right to abortion nationwide for nearly five decades.
In both cases, abortion rights advocates argued that the states protect privacy, and therefore abortion. Now, instead of arguing that the U.S. Constitution protects abortion access, lawyers challenging the bans are basing their cases on the language of state constitutions. Several of the challenges are rooted in the right to privacy.
The justices who ruled the strict abortion law didn’t violate privacy rights cited notes from the committee that the intention of the privacy clause was to protect against government surveillance in a modernizing world. Hearn wrote that while lawmakers have the authority to protect life, the privacy clause means women should have enough time to determine they are pregnant and decide whether to have an abortion.
In Idaho's ruling that kept the abortion ban in place, Justice Robyn Brody noted that the constitution there does not specifically say there's a right to abortion.
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