Two recent court decisions, on abortion and gender identity, not only demonstrate that judges are in the middle of the cultural fray but also point out where people concerned about these issues must focus.

Abortion. Last year, in Dobbs v. Jackson Women’s Health Organization, the Supreme Court held that “the authority to regulate abortion must be returned to the people and their elected representatives.” The Court had removed that authority in Roe v. Wade by inventing a constitutional right to abortion and, nearly 50 years later, corrected that error in Dobbs by overruling Roe.

Overruling Roe v. Wade, however, will not stop abortion advocates from attacking legal protection for the unborn. They will, however, have to do so state-by-state, where the legal landscape, including state constitutions and state supreme courts interpreting them, is much more diverse.

In 2021, the South Carolina legislature enacted a law prohibiting most abortions after approximately six weeks of pregnancy, when a fetal heartbeat can be detected. Planned Parenthood and two abortionists challenged the law, arguing that the violated Article I, Section 10, of the South Carolina Constitution. This provision reads: “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.”

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Some state constitutions protect privacy without mentioning any particular context. The Alaska Constitution, for example, provides simply that “the right of the people to privacy is recognized and shall not be infringed.” The South Carolina provision appears to treat privacy more narrowly by connecting to the language of “searches and seizures” that echoes the U.S. Constitution’s Fourth Amendment.

Nonetheless, on Jan. 5, the South Carolina Supreme Court voted 3-2 that the abortion ban violated the state constitution, but each justice in the majority wrote a separate opinion offering a different rationale for that result. One justice looked only at the words “unreasonable invasions of privacy” and, as the U.S. Supreme Court did in Roe, asserted that an unborn child “cannot be considered its own legal entity” in early pregnancy. Another dismissed human beings at that stage as nothing but an “amorphous collection of cells,” while a third justice emphasized that many women may not know they are pregnant and, therefore, would never have an opportunity to choose whether to have an abortion.

Decisions like this, with many more to follow, identify opportunities for pro-life citizens to stand up for the unborn. Voters elect the legislators and governor responsible for each state’s abortions laws. In 49 states, the voters must approve changes to the state constitution and, in 25 of them (not South Carolina), can also initiate or propose changes. And in many states (again, not South Carolina), voters either elect or retain supreme court justices.

Gender Identity. This issue is still being litigated primarily in federal court. Like most across the country, the public schools in St. John’s County, Florida, have bathrooms separated by biological sex. Officials in that school district, however, went a step further. More than a decade ago, they began providing gender-neutral bathrooms to accommodate students who wished not to use the bathroom for their biological sex.

This was not good enough for Drew Adams, a biological female who began in high school to identify as a male. Adams challenged the policy, arguing that it violated both the U.S. Constitution’s requirement of equal protection and a federal statute’s ban on sex discrimination in programs receiving federal funds.

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A three-judge panel of the U.S. Court of Appeals for the 11th Circuit initially agreed with Adams, but the full 11th Circuit voted 7-4 to reverse that decision. Judge Barbara Lagoa, appointed in 2019 by President Donald Trump, wrote the majority opinion which concluded that, under the appropriate legal standard, the bathroom policy was “substantially related” to the “important government objective” of protecting students’ privacy.

Lagoa then wrote an individual opinion explaining that a contrary decision would have other far-reaching implications including its impact on women’s sports. This decision may reach the Supreme Court because another appeals court, the Fourth Circuit, came to opposite conclusion about a similar bathroom policy in a Virginia school district.

This decision also points out what concerned citizens might do. Voters elect school boards that decide such policies and can participate in the public discussion about how to address issues like this one. They also elect members of Congress who establish educational policies in statutes such as Title IX. While members of the U.S. Supreme Court and lower federal appellate courts are not elected, the senators and president who appoint them are.

These decisions show that while judges will continue to have a prominent role as decisionmakers, citizens can have significant influence on how to address such sensitive and important cultural issues.