Editor’s Note: Mary Ziegler (@maryrziegler) is the Martin Luther King Professor of Law at UC Davis. She is the author of “Dollars for Life: The Antiabortion Movement and the Fall of the Republican Establishment” and “Roe: The History of a National Obsession.” The views expressed in this commentary are her own. Read more opinion on CNN.
The South Carolina Supreme Court’s recent abortion decision is a reminder of the importance of state constitutional law in the post-Roe era. By upholding a six-week ban virtually identical to one struck down by the same court in January, this ruling means that South Carolina will go from a state that welcomed abortion seekers from across the region to one where the procedure is available for only as little as a week after a person confirms a pregnancy.
But the court’s decision — and the legislative strategy behind the law that the court upheld — is also a perfect reflection of an evolving Republican strategy to push back on abortion: paying lip service to the importance of reproductive liberty with exceptions or rhetorical flourishes while offering no real access at all.
South Carolina Republicans suffered a setback in January when a differently constituted supreme court struck down a prior six-week ban in a 3-2 decision. Writing for the majority, Judge Kaye Hearn, the only woman on the court, stressed that Dobbs, the case that overturned Roe, did not dictate the outcome of the case because “the South Carolina constitution expressly includes a right to privacy.”
While requiring that a privacy-based abortion right “be balanced against the State’s interest in protecting unborn life,” the court insisted that a six-week ban did not offer “a reasonable period of time” for a patient to learn they were pregnant and make arrangements to terminate a pregnancy.
But then Hearn retired, and the state legislature — which chooses state supreme court judges in the state — replaced her with a male conservative justice, creating the only all-male state supreme court in the nation. With a more conservative court in place, the Republican legislature and governor then went back to the drawing board, tweaking the old six-week ban to claim that a virtually identical bill was a compassionate compromise between the rights of women and other abortion seekers and the state’s interest in fetal life.
Other conservative states have gone about this in different ways: emphasizing rape or incest exceptions while failing to mention the fine print. For instance, West Virginia’s law sets an expiration date for sexual assault victims; other states require sexual assault victims to make a report to law enforcement. Some of these exceptions aren’t exceptions at all but defenses for carrying out an abortion — which a doctor has to prove apply rather than a prosecutor carrying that burden — and all of them have a track record of creating little real-world access, even for those the law claims to protect.
South Carolina lawmakers tried a different approach: arguing that their ban didn’t trespass on reproductive freedom.
State lawmakers stressed that emergency contraceptives (like other methods of family planning) were not impacted by the ban. Couples had a reasonable chance to make reproductive decisions by using birth control and emergency contraceptives and by relying on “early pregnancy testing.” That a six-week ban would likely kick in before some patients know they are pregnant made no difference. If the state gave women the means to avoid pregnancy, that satisfied the state’s interest in privacy.
This show of compassion barely concealed the underlying interest that state lawmakers — and their colleagues on the bench — had in mind. In a 4-1 decision upholding the new law, the court emphasized that the law was reasonable because of the importance of “unborn life.” No longer did the court frame the fight as pitting the rights of patients against the state’s interest in fetal life.
Instead, the new majority insisted that women’s rights had to give way to “the interest of the unborn child to live.” This language suggests that a fetus might have its own constitutional rights or interests — and may count as a freestanding person under the state’s constitution.
The court’s decision offers a window into how some Republicans are trying to navigate the post-Roe era. Step one requires manifesting concern for women, and even the idea of freedom to make reproductive decisions. We’ve seen this most clearly in former South Carolina Gov. and now GOP presidential candidate Nikki Haley’s talking points on abortion — and her calls for understanding the plight faced by patients.
Something similar has been argued in Idaho, a state that passed the nation’s first ban on out-of-state travel to get an abortion. The so-called “abortion trafficking” law for minors is so sweeping that it arguably applies to people helping abortion seekers in states where the procedure is legal. Idaho lawmakers argue that the law actually protects minors’ freedom to decide by shielding them from coercive adults who are not their parents. Leading antiabortion groups, like Students for Life, argue that women do not need abortion (or even birth control) to achieve their dreams.
Step two is to separate the abstract importance of reproductive choice from any meaningful access to abortion — to establish that people have a right to choose whether they use birth control or simply stop having sex. Jonathan Mitchell, the architect of Texas’s SB8, made this claim before the Supreme Court in Dobbs.
The final move is to make this show of compassion by subtly building toward the recognition of fetal rights or personhood. Of course women have privacy rights, the South Carolina Supreme Court explained. But the unborn child’s rights take precedence — and do so early in pregnancy.
It’s not clear that this plan will work for most Republicans in the post-Dobbs era. To begin with, most Americans will not easily swallow that reproductive freedom doesn’t have anything to do with abortion, or even contraception. Most polls suggest that Americans don’t support the idea of abortion later in pregnancy, but bans early in pregnancy remain deeply unpopular, regardless of how they are framed.
It’s not obvious that antiabortion activists will buy this strategy either. Leading groups, like Students for Life and the Alliance Defending Freedom, have stepped up their demands of the GOP, insisting, for example, that the federal Constitution already recognizes fetal rights and makes liberal abortion laws unconstitutional. Acknowledging the bare idea of reproductive privacy may not sit well with a movement that expects Republicans to deliver precisely what the movement wants.
Ultimately, strategies like the one evident in South Carolina are unlikely to dig the GOP out of the hole it dug for itself. Republicans remain beholden to base voters, many of them White conservative evangelicals, who are more likely to favor a national ban and have made up a strong part of the party’s support. At the same time, it won’t be easy to fool a majority of voters who have lived a year with criminal abortion bans and don’t like what they see. And voters don’t like it when Republicans try to pretend that they aren’t interested in sweeping criminal bans when the opposite is true.
Just look at what happened in Ohio, a deeply conservative state, where Republicans tried to make it harder for voters to change the state’s constitution by requiring that an amendment on the ballot have supermajority support. Republicans knew that in November, voters would get to weigh in on a proposed abortion amendment, and that well over half of Ohioans favored that measure in polls. The effort to hoodwink Ohio voters backfired, and they soundly rejected the Republican attempt.
If the plan is to trick Americans into thinking the party has found a compromise on abortion, Republicans aren’t trying very hard. Real compassion can’t be all talk and no action.