State Con Law Starts 2023 With a Bang

Anthony Sanders · January 7, 2023

In our first week of the year we’ve seen two big cases in state constitutional law, both in the area of abortion. First, the South Carolina Supreme Court ruled that the state’s law prohibiting most abortions after six weeks of pregnancy violated the state constitution’s explicit “right to privacy” provision. Then, the very next day, the Idaho Supreme Court ruled that a few provisions in the state constitution, most importantly its Inalienable Rights Clause (or what can also be called a Lockean Natural Rights Guarantee), do not make the state’s ban on almost all abortions unconstitutional. Both rulings were 3-2 on the bottom-line issue, although South Carolina had no majority opinion.

Here I’m just going to very briefly note a few takeaways from the rulings. If you want analysis that focuses on the abortion question there’s plenty of other places to find it. Instead, I’m going to highlight a couple items in the cases that go beyond abortion to more general areas of state constitutionalism.

In South Carolina the court considered a number of challenges to the law, but the focus was on the constitution’s “right to privacy” clause. As the plurality noted, ten states have an explicit “right to privacy” protection in their constitutions. Unusually among those states, South Carolina embeds it alongside a search-and-seizure provision that otherwise is pretty identical to the Fourth Amendment. The first half of Article I, Section 10 of the state constitution says (with the privacy language italicized): “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 . . .” This language was added in 1970 by a constitutional amendment.

The court had held before that the language goes beyond the context of criminal investigations, although one dissenting justice argued it should be construed that narrowly. The date of its adoption creates an interesting question, as it was five years after the U.S. Supreme Court had recognized a “right to privacy” in the U.S. Constitution, in Griswold v. Connecticut, but just before the Court then extended it to the abortion context in Roe v. Wade in 1973. In any case, the plurality put great emphasis on how a recognition of some right to privacy in American law goes back a long way—at least to a famous 1890 law review article co-authored by the future Justice Brandies—and that the 1970 amendment did not create a right to privacy but simply recognized one. Here it cited to District of Columbia v. Heller, where the U.S. Supreme Court said the same thing about the right to bear arms. On the ultimate question of how the clause applies to abortion both the plurality and a concurring justice concluded that the law in question was unconstitutional, although the third justice (who concurred in the judgment only) did so on grounds very specific to the statute in question.

In Idaho the majority opinion considered various challenges, including under its Inalienable Rights Clause and Baby Ninth Amendment. I’ll leave discussion of the Baby Ninth Amendment for another day (unfortunately it was too late for my book about those provisions, which is going to press soon!). I’ll just say here that the court backtracked from earlier cases where it had indicated the Baby Ninth substantively protected rights beyond just those enumerated in the state constitution. Whatever the status of abortion itself as a right, that backtracking is unfortunate and hopefully something the court will rectify in the future.

The court did, however, state that the Idaho Constitution’s Article I, Section 1—the Inalienable Rights Clause—protects substantive rights, and rights beyond those it mentions. The clause, like other Lockean Natural Rights Guarantees we’ve talked about on this blog before, states: “All men are by nature free and equal, and have certain inalienable rights, among which are enjoying and defending life and liberty; acquiring, possessing and protecting property; pursuing happiness and securing safety.” It noted that the words “among which” imply that there are other rights protected by this provision beyond just those listed in it.

It then made two moves, however, that diminish the protection of the clause, even outside of the context of abortion.

First, it said that for rights beyond those explicitly listed—enjoying and defending life and liberty, etc.—the right must be “deeply rooted” in Idaho’s traditions and expressed narrowly, adopting the test (which we at IJ have criticized many times) from the U.S. Supreme Court’s Washington v. Glucksberg.This analysis was synonymously necessary to determine if a right was “fundamental,” which means strict scrutiny would apply to it.

Second, even for rights explicitly in the Inalienable Rights Clause—such as possessing property—and therefore (it would seem) fundamental, the court said that the government can reasonably regulate them, implying that the rational basis test applies to challenges to those regulations. Given the rest of the court’s opinion this seems preposterous—that the rational basis test applies to a fundamental right. Furthermore, in justifying the use of the Glucksberg test the court also took a cheap shot at Lochner v. New York, the famous 1905 right to contract decision—something irrelevant to Article I, Section 1 of the Idaho Constitution.

In future cases on other subjects I hope the court clears up this confusion. It’s atextual and ahistorical—exactly what it claims it doesn’t want to do. In any case, the court then applied the Glucksberg test to the abortion ban—in a similar way to what the U.S. Supreme Court did in the Dobbs case last year—and found no constitutional violation.

The dissents in the Idaho case are worth reading as well. Both dissenting opinions push back on using the Glucksberg test and discuss some of the Lockean background of Article I, Section 1.

Expect more state constitutional opinions like these in the post-Dobbs era. They’re about much more than abortion. If you want a little more background from the federal angle, you can read my article in Discourse Magazine last month.

Anthony Sanders is the Director of the Center for Judicial Engagement at the Institute for Justice.