A Volatile Tool Emerges in the Abortion Battle: State Constitutions

When the Supreme Court overturned Roe v. Wade and the constitutional right to abortion in June, it declared that it was sending the issue back to the “people and their elected representatives.” But the fight has largely moved to a different set of supreme courts and constitutions: those in the states.

On a single day this month, South Carolina’s highest court handed down its ruling that the right to privacy in the State Constitution includes a right to abortion, a decision that overturned the state’s six-week abortion ban. Within hours, Idaho’s highest court ruled in the opposite direction, saying that state’s Constitution did not protect abortion rights; the ban there would stand.

Those divergent decisions displayed how volatile and patchwork the fight over abortion rights will be over the next months, as abortion rights advocates and opponents push and pull over state constitutions.

For abortion rights groups, state constitutions are a critical part of a strategy to overturn bans that have cut off access to abortion in a wide swath of the country. Those documents provide much longer and more generous enumerations of rights than the United States Constitution, and history is full of examples of state courts using them to lead the way to establish broad rights — as well as to strike down restrictions on abortion. They offer a way around gerrymandered state legislatures that are pushing stricter laws.

The Supreme Court’s decision has left abortion rights groups with few other options. In their most hopeful scenario, state courts and ballot initiatives to establish constitutional protections would establish a firmer guarantee for abortion rights than the one in Roe, which rested on a protection of privacy that was not explicit in the U.S. Constitution.

But just as abortion rights groups are trying to identify protections in state constitutions, anti-abortion groups are trying to amend those same documents to say they provide no guarantee of abortion rights.

And while the courts may appear to be the last word because their decisions are not subject to appeal, judges in 38 states have to face the voters. A change on the bench has sometimes meant that the same document found to include a right to abortion suddenly is declared not to include that right, in the space of a few years.

“You’re going to see a lot of give and take in the years to come, in ways that may be unpredictable,” said Alicia Bannon, the director of the judiciary program at the Brennan Center for Justice, which maintains a tracker of the cases filed to challenge abortion bans that have been enacted since the Supreme Court overturned Roe. “I don’t think it’s a dynamic where a court will issue a ruling and that’s the end of the conversation.”

Lawyers working to restore abortion rights promise more litigation as legislatures in conservative states reconvene for the first time since the Supreme Court’s decision, vowing to pass stricter bans. Both sides of the abortion debate will also devote new energy to seat and unseat judges, and into efforts to explicitly protect or restrict abortion protections in state constitutions, which are far easier to amend than their federal counterpart.

“The terrain has shifted, and it’s not just a matter of we’re turning our attention from federal to state courts, it’s that we’re turning our attention to a whole other range of institutions and opportunities which present their own possibilities but also pitfalls,” said John Dinan, a politics professor at Wake Forest and the author of a forthcoming Montana Law Review article on the role of state courts and constitutions in the future of abortion laws.

During the half-century that Roe protected a federal right to abortion, opponents of abortion rights argued that regulation of the issue should be returned to the states, which could set their own laws according to public opinion.

They have objected to state court decisions finding a constitutional right to abortion, saying that laws should be made by the legislatures, not justices. Murrell Smith, the Republican speaker of the House in South Carolina, wrote on Twitter that the state court’s decision “fails to respect the concept of separation of powers and strips the people of this state from having a say in a decision that was meant to reflect their voices.”

But abortion opponents have tried to turn state constitutions to their advantage, as well. Even before Roe was overturned, ballot amendments in Tennessee, Louisiana, West Virginia and Alabama changed those states’ constitutions to say that nothing in them protected a right to abortion. Lawmakers in Montana and Alaska are attempting similar amendments.

Some opponents of abortion have argued that the rights to liberty in state constitutions should extend not only to women, but also to fetuses. Thomas Fisher, the solicitor general of Indiana, said during oral arguments on the case there earlier this month, “There’s a failure to recognize that there is something else on the other side of the equation, and that is the unborn life.”

The framers of the Constitution earlier wrote constitutions for the 13 colonies that became the first states. They borrowed heavily from those documents, and left states free to add rights to their constitutions that don’t exist in the federal one. Wyoming’s Constitution, for example, protects the opportunity to hunt, fish and trap; New Jersey’s includes a minimum wage that increases annually.

State constitutions are easier to change, through ballot measures proposed by citizens or legislatures (allowed in every state but Delaware.) And they have been revised far more often than the federal constitution.

“If you went back to the origins of our nation, federal courts were not irrelevant, but there weren’t many cases there,” said Margaret Marshall, the former chief justice of the Supreme Judicial Court of Massachusetts. “Everything happened in the states.”

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 article urging activists to rely more on state constitutions to expand civil liberties, noting that state courts had relied on them to establish rights, including those to housing and to jury trials, beyond what federal courts had done.

A more recent example is same-sex marriage. Even when Congress refused to recognize same-sex marriages, the high court in Massachusetts ruled that under its Constitution, the state could not deny a marriage license on the basis of sex. The opinion, written by Justice Marshall, declared that the State Constitution protected personal liberty “often more so” than the federal Constitution.

“The genius of our federal system is that each state’s Constitution has vitality specific to its own traditions,” she wrote.

The lawsuits now rely on a range of rights — and sometimes multiple rights — in state constitutions, reflecting the differences in these documents, as well as the bets that abortion rights supporters are making about which arguments are likely to succeed.

While 11 state constitutions explicitly mention privacy — the basis of the argument for Roe — only two of those are in states that ban abortion. One is South Carolina, where earlier this month a divided court found that the right to privacy extended to a right to abortion. That decision was a happy surprise to abortion rights groups, not least because the justices, while nonpartisan, were appointed by the Republican-controlled State Legislature.

In the other state with an explicit right to privacy, Arizona, abortion rights groups chose to argue their case instead on a state constitutional right to due process, strategizing that the members of the state’s Supreme Court would be unsympathetic to the privacy argument.

Other lawsuits argue that a right to abortion falls under state constitutional protections for liberty, for free exercise of religion, or for inherent, natural or fundamental rights — provisions that are included in every state constitution and typically go well beyond what the Bill of Rights established.

Roughly half the state constitutions also have equal rights amendments protecting the rights of women, and several cases that have been filed since Roe was overturned rely on those provisions.

And lawsuits in two states, Wyoming and Ohio, argue for a right to abortion based on constitutional amendments the states’ voters passed in protest to President Barack Obama’s broad overhaul of health care, protecting citizens’ rights to make their own health care decisions.

Most of the cases are awaiting trial. Only the state supreme courts in North Dakota, Kentucky and Indiana have already heard arguments.

Preliminary rulings have given some indication of what arguments might establish a right to abortion, even in conservative states. In North Dakota, Utah, Wyoming and Indiana, the courts blocked abortion restrictions temporarily, saying that the abortion rights cases had a likelihood of success at trial.

The North Dakota court said the state’s near-total ban most likely violated a constitutional provision establishing “certain inalienable rights,” including “those of enjoying and defending life and liberty” because of its burdens on doctors and pregnant women. The Utah court said the lawsuit from the abortion rights groups raised “serious issues” about whether the abortion ban violated a constitutional provision granting rights equally to “both male and female citizens.”

The court also noted that it had previously recognized a constitutional right to privacy protecting matters “of no proper concern to others,” including “things which might result in shame or humiliation, or merely violate one’s pride in keeping private affairs to

self.” That includes a right to determine “family composition.”

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 a present-day context. That helps explain why the courts in South Carolina and Idaho diverged.

In South Carolina, lawyers for the attorney general and the Legislature had argued that the justices had to interpret the Constitution based on the exact language in the document. They noted that a committee that revised the Constitution in the mid-1960s made no specific reference to a right to abortion. But the justices in the majority opinion said that the committee had no women, and the state’s high court had since ruled in another decision that the constitutional right to privacy extended to “bodily autonomy.”

“We cannot relegate our role of declaring whether a legislative act is constitutional by blinding ourselves to everything that has transpired since,” the justices wrote.

In Idaho, where there is no explicit right to privacy, a similarly split court rejected arguments that a right to abortion was fundamental in constitutional guarantees of the “inalienable rights” to life, liberty and property.

The court chose to interpret the state’s Constitution “based on the plain and ordinary meaning of its text, as intended by those who framed and adopted the provision at issue.” There was no evidence, the justices wrote, that a right to abortion was “deeply rooted” in the state in 1889, when the clause on inalienable rights was adopted. If the people of Idaho do not like the state’s new bans, the justices wrote, “they can elect new legislators.”

High court decisions, however, have been reversed by courts themselves, as in Iowa. There, the highest court ruled in 2018 that the State Constitution protected a right to abortion, only to reverse itself four years later, after Gov. Kim Reynolds, a Republican, named four new justices.

Eyes are now on Florida, where the state’s Supreme Court in 1989 established a right to abortion in state constitutional protections for privacy, going beyond what the Roe court had done, and voters in 2012 rejected a ballot measure that would have reversed that decision.

In the last year, Gov. Ron DeSantis, a Republican, has taken advantage of retirements on the court to seat a majority that opposes abortion. Abortion rights advocates have filed suit against the state’s 15-week ban on abortion; last week, the new court agreed to hear the case.