State courts set to be next battleground over abortion
State courts may soon figure prominently in the legal fight over abortion access if the conservative-majority U.S. Supreme Court undermines or overturns Roe v. Wade in coming months.
In several states, top courts are currently weighing the lawfulness of abortion limits as the fate of the landmark 1973 decision in Roe hangs in the balance — and experts say more state-level disputes are sure to follow.
“We are potentially at a really important moment for state courts’ role in abortion access,” said Douglas Keith, counsel at the Brennan Center’s Democracy Program. “If the U.S. Supreme Court leaves it up to states to determine whether their laws protect that access, you’re going to see many state supreme courts asked to decide whether the state constitution protects abortion access.”
The U.S. Supreme Court is expected to issue a ruling by late June or early July in Dobbs v. Jackson Women’s Health Organization, the case concerning Mississippi’s 15-week abortion ban. That law poses a direct challenge to Roe, which first recognized a federal right to abortion and made it illegal for states to ban abortion before fetal viability, around 24 weeks.
If Roe is overturned or gutted, 26 states are considered certain or likely to try to impose some form of abortion ban immediately, according to the Guttmacher Institute, an abortion rights advocacy group.
But court watchers say a potentially robust check on the Republican-led effort to pare back abortion access may reside in state constitutions, a source of legal authority that has largely flown under the radar as federal courts for decades have dominated the legal fight over abortion access.
“Without a federal constitutional right to an abortion, there are new incentives to press rights claims under state constitutions — either under privacy or equality or liberty,” said Rachel Rebouché, a law professor at Temple University School of Law.
For states where their top court has interpreted the state constitution to protect abortion, citizens of that state would still retain a right to abortion access if Roe is overturned.
A number of state supreme courts have already issued such decisions — including in Kansas (2019), Iowa (2018), Montana (1999), Alaska (1997) and Florida (1989) — and experts expect advocates to expand this state-level strategy if Roe is overturned.
In an illustration of just how pivotal these state supreme court interpretations have become, Montana’s Republican attorney general in January asked the state Supreme Court to overturn its 23-year-old decision that held that the state constitution’s privacy protections encompass abortion — a ruling some advocates refer to as “Montana’s Roe v. Wade.”
“This decision invented from whole cloth a state constitutional right to elective abortion even though the framers of the Montana Constitution were perfectly clear that decisions about abortion policy are to be firmly in the hands of the Legislature,” Montana Attorney General Austin Knudsen (R) said in a statement issued in connection with his lawsuit.
In Kansas, an effort is currently underway to amend the state constitution in response to the Kansas Supreme Court’s recognition in 2019 of a state-constitutional right to abortion. That controversial ruling may also figure as a flashpoint in the midterm elections, when a majority of Kansas Supreme Court justices are up for retention election.
“The court has been under attack for that decision,” said Keith, of the Brennan Center. “As a result, I would expect to see a significant amount of money coming in to try and unseat those justices this time around.”
Several state supreme courts are currently weighing requests to recognize a state-constitutional right to abortion as the nation awaits the U.S. Supreme Court’s fateful decision over Mississippi’s 15-week ban.
In Michigan, separate challenges brought recently by Gov. Gretchen Whitmer (D) and Planned Parenthood take aim at a 1931 criminal ban on abortion that would become enforceable if Roe fell. The challengers have asked Michigan courts to rule that the state’s constitution protects abortion.
“In the coming weeks, we will learn if the U.S. Supreme Court decides to overturn Roe v. Wade,” Whitmer said in a statement. “If Roe is overturned, abortion could become illegal in Michigan in nearly any circumstance — including in cases of rape and incest — and deprive Michigan women of the ability to make critical health care decisions for themselves.”
“This is no longer theoretical: it is reality,” Whitmer continued. “That’s why I am filing a lawsuit and using my executive authority to urge the Michigan Supreme Court to immediately resolve whether Michigan’s state constitution protects the right to abortion.”
Idaho’s supreme court is also weighing a similar request from Planned Parenthood in a legal challenge to the state’s six-week abortion ban. Signed in March by Gov. Brad Little (R), Idaho’s law is modeled after Texas’s six-week ban, which incentivizes private citizens to sue abortion providers, though Idaho’s top court recently blocked that law from taking effect while the case proceeds.
Among the arguments that Planned Parenthood’s lawsuit makes is a request for the Idaho Supreme Court to find that the state’s constitution contains a “fundamental right to privacy in making intimate familial decisions” that encompasses abortion.
In Pennsylvania, the top court is currently weighing whether the Pennsylvania constitution’s Equal Rights Amendment protects the right to abortion.
“If the Court holds that it does, then the right to abortion would be protected in Pennsylvania regardless of what the Supreme Court does in Dobbs,” said Greer Donley, a professor at the University of Pittsburgh Law School.
David Cohen, one of the lawyers who is urging the Pennsylvania Supreme Court to recognize a state constitutional right to abortion, said state-level legal challenges to abortion restrictions are nothing new.
What’s different about the current climate, he said, is that state court battles are now likely to generate more attention after being long overshadowed by federal court fights.
“If the U.S. Supreme Court does what we expect and closes off that avenue, I think litigators will continue to work in state courts,” said Cohen, a law professor at Drexel University. “But there probably will be more attention paid to it because no one will be able to focus on the U.S. Supreme Court anymore.”
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