When the Supreme Court struck down Roe v. Wade and the constitutional right to abortion in June, it announced it would send the issue back to “the people and their elected representatives.” But the fight has largely shifted to a different set of supreme courts and constitutions: the state supreme courts and constitutions.
One day this month, the South Carolina Supreme Court ruled that privacy rights in the state constitution include the right to abortion, overturning the state’s six-week abortion ban. Hours later, the Idaho Supreme Court ruled in reverse, saying the state’s constitution does not protect the right to abortion; the ban there would stand.
The disparate decisions show just how turbulent and intricate the fight over abortion rights will be in the coming months as advocates and opponents of the rights overturn state constitutions.
For abortion rights groups, state constitutions are an important part of a strategy to overturn a ban on abortions in large swathes of the country. The documents provide a longer and more generous enumeration of rights than the U.S. Constitution, and history is replete with examples of state courts using them to lead the way in establishing broad rights and lifting restrictions on abortion. They offer a way around unjust state legislatures that are pushing for stricter laws.
The Supreme Court ruling leaves abortion rights groups with little choice. At their best, the creation of constitutionally protected state courts and ballot initiatives would provide firmer guarantees for abortion rights than Roe, which relied on privacy protections not expressly enshrined in the U.S. Constitution.
But just as abortion rights groups are trying to secure protections in state constitutions, anti-abortion groups are trying to amend those same documents, saying they do not provide guarantees of abortion rights.
While the courts may appear to have the final say because their decisions are not appealable, judges in 38 states must face voters. Changes on the bench have sometimes meant that, over the course of several years, the same document that suddenly announced that it included abortion rights did not include that right.
“You’re going to see a lot of give and take in the next few years, in a way that may not be predictable,” said Alicia Bannon, director of the Justice Project at the Brennan Justice Center. Cases have been filed challenging the abortion ban since the Supreme Court overturned Roe. . “I don’t think it’s a dynamic where the court issues a ruling and that’s the end of the conversation.”
Lawyers working to restore abortion rights are promising more lawsuits as the conservative state’s legislature reconvenes for the first time since the Supreme Court decision, vowing to pass a tougher ban. Both sides of the abortion debate will also devote new energy to appointing and removing judges and work to explicitly protect or limit abortion protections in state constitutions, which are easier to amend than the federal constitution.
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“The landscape has changed, and it’s not just a matter of us turning our attention from federal courts to state courts, but we’re turning our attention to a range of other agencies and opportunities that demonstrate their own possibilities, But there are pitfalls,” said John Dinan, a political science professor at Wake Forest University and author of a forthcoming Montana Law Review article on the role of state courts and the Constitution in future abortion laws .
In the half century that Roe has protected federal abortion rights, opponents of abortion rights argue that regulation of the issue should be returned to the states, which can make their own laws based on public opinion.
They oppose state courts ruling on the constitutional right to abortion, saying laws should be made by legislatures, not judges. South Carolina House Republican Speaker Murrell Smith wrote on Twitter that the state court’s decision “fails to honor the concept of separation of powers and deprives the people of this state of a voice in a law designed to reflect them.”
But opponents of abortion are also trying to turn state constitutions to their advantage. Even before Roe was overturned, ballot amendments in Tennessee, Louisiana, West Virginia and Alabama changed those states’ constitutions so that nothing in them protected abortion rights. Lawmakers in Montana and Alaska are attempting similar amendments.
Some opponents of abortion argue that liberties in state constitutions should extend not only to women but also to fetuses. Indiana Attorney General Thomas Fisher said during oral argument in the case earlier this month, “Not realizing that there’s something else on the other side of the equation, which is unborn life.”
The framers of the constitution had earlier drawn up constitutions for the 13 colonies that became the first states. They borrowed heavily from these documents and left the states free to add rights to their constitutions that did not exist in the federal constitution. For example, Wyoming’s constitution protects hunting, fishing, and trapping opportunities; New Jersey includes an annual minimum wage increase.
State constitutions are easier to change through ballot measures proposed by citizens or legislatures (which is allowed in every state except Delaware). And they are revised much more frequently than the Federal Constitution.
“If you go back to the origins of our country, the federal courts are not irrelevant, but there aren’t many cases there,” said Margaret Marshall, former chief justice of the Massachusetts Supreme Judicial Court. “Everything happens in America.”
As the U.S. Supreme Court became more conservative in its approach in the 1970s, Justice William Brennan, himself a former justice of the New Jersey Supreme Court, wrote an influential essay urging activists to rely more on state The Constitution to expand civil liberties, noting that state courts rely on them to establish rights, including the right to housing and the right to trial by jury, beyond what federal courts do.
A recent example is same-sex marriage. Even though Congress refused to recognize same-sex marriage, the Massachusetts Superior Court ruled that, under its constitution, the state cannot deny marriage licenses on the grounds of sex. The opinion, written by Justice Marshall, declared that state constitutions “generally do a better job” of protecting individual liberties than the federal constitution.
“The genius of our federal system is that each state’s constitution is alive to its own tradition,” she wrote.
The lawsuits now rely on a set of rights—sometimes multiple rights—in state constitutions that reflect differences in those documents, as well as stakes among abortion rights proponents on which arguments are likely to succeed.
While 11 state constitutions explicitly mention privacy—supporting Roe’s argument—only two of those state constitutions prohibit abortion. One is South Carolina, where a divisive court ruled earlier this month that privacy rights extended to abortion rights. The decision came as a surprise to abortion rights groups, not least because the judges, while nonpartisan, were appointed by the Republican-controlled state legislature.
In Arizona, another state with a clear right to privacy, abortion rights groups chose to argue their case under the state’s constitutional due process rights, arguing that members of the state’s Supreme Court would not be sympathetic to the privacy argument.
Other lawsuits argue that the right to abortion falls under state constitutional protections of liberty, freedom of religion or belief, or inherent, natural or fundamental rights — provisions that are contained in each state constitution and often go well beyond what the Bill of Rights states.
About half of state constitutions also have the Equal Rights Amendment protecting women’s rights, and several of the cases brought since Roe’s overthrow have relied on those provisions.
The lawsuits in two states, Wyoming and Ohio, argue that abortion rights are based on constitutional amendments passed by voters in the states in protest of President Barack Obama’s broad health care reforms that protect citizens’ rights to make their own health care decisions.
Most cases are awaiting trial. Only the state supreme courts in North Dakota, Kentucky and Indiana have heard arguments.
Preliminary rulings have shown which arguments might establish abortion rights, even in conservative states. In North Dakota, Utah, Wyoming and Indiana, courts have temporarily blocked abortion restrictions, saying abortion rights cases are likely to succeed at trial.
A North Dakota court said that because of the burden it placed on doctors and pregnant women, the state’s near-total ban likely violated “certain inalienable rights” under the Constitution, including “the right to enjoy and defend life and liberty.” The Utah court said the abortion rights group’s lawsuit raised “serious questions” about whether the abortion ban violated constitutional provisions that grant equal rights to “citizens male and female.”
The court also noted that it has previously recognized that the constitutional right to privacy protects “matters that do not concern others,” including “matters that may cause humiliation or insult, or which merely violate a person’s self-respect for making a private matter public.” [one]Own. ” This includes the right to determine the “formation of the family”.
Because some state constitutions were written more than a century ago, courts are deciding whether to view them through the eyes of their framers or in today’s context. That helps explain why courts in South Carolina and Idaho are divided.
In South Carolina, lawyers for the attorney general and the legislature argued that judges must interpret the Constitution based on the exact language in the document. They point out that a committee that revised the constitution in the mid-1960s made no specific reference to abortion rights. But the justices in the majority opinion said the commission had no women members, after the state’s high court ruled in a separate ruling that the constitutional right to privacy extends to “bodily autonomy.”
“We cannot diminish our role in declaring the constitutionality of legislative acts by turning a blind eye to everything that has happened since,” the justices wrote.
In Idaho, which has no clear right to privacy, a similarly divisive court rejected the argument that abortion rights are the basis of the Constitution’s guarantees of “inalienable rights” to life, liberty and property.
The court chose to interpret the state’s constitution “according to the ordinary meaning of its text, as intended by those who made and adopted the relevant provisions.” The judge wrote that there was no evidence that abortion rights were “entrenched” in the state in 1889, when the inalienable rights clause was passed. If the people of Idaho don’t like the state’s new ban, the judge wrote, “they can elect new lawmakers.”
However, the high court’s decision has been overturned by the courts themselves, for example in Iowa. There, the Supreme Court ruled in 2018 that the state constitution protected the right to abortion, only to overturn it four years later after the governor announced it. Republican Kim Reynolds appointed four new justices.
Focus now on Florida, where the state’s Supreme Court established abortion rights in 1989 within the state’s constitutional protection of privacy, beyond what the Roe Court did, and voters rejected a ballot measure that would have overturned that decision in 2012 .
In the past year, the government. Republican Ron DeSantis used his retirement from the courts to give abortion opponents a majority. Abortion rights advocates have sued the state’s 15-week abortion ban; Last week, the new court agreed to hear the case.