After The Supreme Court Trashed Roe, The Abortion Fight Shifts To State Constitutions

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Since the Supreme Court ruled that the U.S. Constitution does not protect the right to abortion, furious legal scrambling is underway on both sides over what state constitutions say about abortion access. 

While they are in many ways flimsier than a federal constitutional right, many states’ charters offer broader and more generous protections than their national counterpart did even before Dobbs v. Jackson Women’s Health Organization. Some of those protections appear in red states and have been used to fend off draconian abortion restrictions over the years. 

Unlike the federal Constitution, 11 state constitutions explicitly include a guarantee of privacy. Though unenumerated in the constitutional text, privacy formed the basis of the now-nullified Roe v. Wade decision. 

Other state charters include weighty equal protection guarantees, which state courts have used to strike down laws that treat women seeking abortions differently than those electing to carry their pregnancies to term.

And some state constitutions place heavy emphasis on the right to bodily autonomy, which has in turn been more expansively interpreted by state courts than federal ones. 

Those state texts have already become the battlegrounds of the post-Roe abortion wars. This week alone, they’ve been the basis of major — though preliminary — court decisions.

In Minnesota, a state judge on Monday knocked down a slew of abortion restrictions based on a 1995 state Supreme Court finding that the state constitution protects abortion rights. That decision, Doe v. Gomez, was rooted in the state charter’s safeguarding of privacy. 

“These abortion laws violate the right to privacy because they infringe upon the fundamental right under the Minnesota Constitution to access abortion care and do not withstand strict scrutiny,” Judge Thomas Gilligan wrote, adding that the state’s landmark 1995 decision “determined that the Minnesota Constitution offered greater protection of individual privacy rights than the United States Supreme Court has afforded under the Federal Constitution.”

“Unlike the Dobbs Court, which threw out nearly fifty years of precedent, this court must respect the precedent set by the Minnesota Supreme Court in Gomez and that precedent will guide this court’s decisions in this case,” he snarked. 

Another early win for abortion rights proponents came in Utah, where a state judge blocked a trigger ban while a lawsuit against it wends through the courts. 

Planned Parenthood, which filed the lawsuit, argued that the law violates the Utah constitution’s guarantees to privacy, bodily autonomy and equal rights for men and women. 

In a state-specific quirk, the Utah constitution also guarantees that its inhabitants get to plan their own families — largely due to the influence of the state’s large concentration of Mormons. Planned Parenthood is arguing that that provision protects abortion access too. 

Of course, the texts of state constitutions are one thing — how their high courts interpret them are another. 

The composition of state courts is much easier to change than the U.S. Supreme Court, with its lifetime appointments. Many state supreme court justices are routinely up for election, or at least subject to being reconfirmed by voters. State legislatures can also change how justices are selected, giving partisan actors more control.

Look no further than Iowa, where a significantly more conservative bench, following a change to the selection process that gave Gov. Kim Reynolds (R) much more control, found last month that the state constitution does not protect abortion rights — just four years after finding that it did. 

A similar threat lurks in Florida, where the hyper-conservative court, shaped by Gov. Ron DeSantis (R), seems unlikely to interpret the state’s privacy protections to cover abortion, like it has since the 1980s.  

State constitutions are generally easier to change than the federal one, prompting immediate action from those on both sides of the abortion debate. 

Voters will be given the chance to strike abortion protections from their state constitutions in Kansas this August and Kentucky this November. Pennsylvania Republicans are aiming to set up a similar vote as soon as spring 2023; Iowa lawmakers’ attempts may see the ballot in 2023 or 2024. 

Meanwhile, some blue states want to tweak their constitutions to wholly embrace protections. California and Vermont may become the first states to explicitly codify abortion rights this November.  

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