The U.S. Supreme Court’s decision last month striking down a federal constitutional right to abortion has prompted abortion rights advocates to take a fresh look at state constitutions, setting off legal battles over whether the protections established in Roe v. Wade exist at state level. level.
Providers and legal advocacy groups have so far filed about a dozen lawsuits in state court seeking to prevent sweeping abortion restrictions. The lawsuits cite a range of provisions in state constitutions, including ones that offer privacy guarantees and protections against sex-based discrimination.
Abortion opponents, meanwhile, argue that these vaguely worded provisions do not address or recognize legal protections for abortion. They say state courts would be illegitimately inventing new rights if they decided otherwise, just as they argue the Supreme Court did to the U.S. Constitution in its recently overturned 1973 Roe v. Wade decision.
President Biden signed an executive order Friday that will direct agencies to protect access to abortions and the privacy of patients seeking reproductive health services. Photo: Evan Vucci/Associated Press
In some cases, abortion rights advocates argue that state constitutions have stronger grounds for protecting abortion than what has previously been recognized at the federal level.
“Of course, I don’t think state courts and state constitutions are going to be a complete substitute for federal protections of abortion rights, but I think they are an underappreciated source of rights,” said Alicia Bannon, who studies courts at New York University’s Center for Justice. Brennan.
Abortion rights groups are pressing their cases in some deeply conservative states. In Oklahoma, for example, state courts over the years have repeatedly blocked abortion restrictions without clearly ruling on whether the state constitution protects the right to choose the procedure. That could change in a new batch of lawsuits in which plaintiffs argue that Oklahoma’s many different abortion bans violate rights guaranteed by the state constitution to personal autonomy, bodily integrity and health.
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In North Dakota this week, the state’s only remaining abortion provider challenged a ban on most abortions set to take effect later this month, arguing that it violates provisions of the state constitution that protect life, safety and happiness.
Other litigation is taking place in more politically mixed states, such as Pennsylvania, Michigan and North Carolina, all of which have pending cases that could create constitutional protections for abortion. The courts could play a crucial role in all three states, which have Democratic governors and Republican-led legislatures and have failed to pass meaningful laws protecting or restricting abortion in recent years.
Courts in a number of states, including Montana and Kansas, have already interpreted their state constitutions to protect abortion.
The Supreme Court did more than overturn Roe v. Wade and allow states to ban abortions. The Court has shown how it views rights not expressly mentioned in the Constitution. The WSJ’s Jess Bravin explains. Illustration: Ryan Trefess
Abortion opponents warn that a new generation of abortion cases could create protracted battles at the state level similar to the decades-long political, legal and cultural war that followed the Supreme Court decision creating a federal constitutional right to abortion.
“Every state court has the potential to have a mini-Roe and read into their state constitution words that aren’t there,” Cary Severino, president of the Judicial Crisis Network, a conservative legal group, told attendees at the Western Conservative Summit in Colorado shortly before the Supreme Court decision was issued.
In a recent court declaration defending an Ohio law banning abortions after six weeks of pregnancy, state Attorney General Dave Yost warned the Ohio Supreme Court that abortion providers and advocates are “asking this court to follow Roe’s path.”
“If this court were to create a right to abortion, the state judiciary would face a flood of cases challenging every detail of the many laws governing abortion,” wrote Mr. Yost, a Republican. “Every judicial election will focus on this issue; voters will be called upon to elect justices based on the candidates’ willingness to expand or contract constitutional protections for abortion.
Any victories won by abortion rights supporters may be far less lasting than the Roe decision, which took nearly 50 years for abortion opponents to overturn.
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Many state Supreme Court justices are elected or up for reconfirmation at regular intervals, so the makeup of state courts changes more quickly than the federal judiciary. State constitutions are also much easier to amend than the federal constitution. Several states this year alone are poised to hold referendums on amendments that specifically protect or exclude abortion protections.
State court watchers said they expect abortion to inject a new level of money, attention and controversy into how state court judges are selected, similar to how abortion helped polarize the Supreme Court selection process .
“Abortion decisions are causing a backlash, and we’re seeing that everywhere,” said Amy Myrick, an attorney at the Center for Reproductive Rights.
Abortion helped sway some state courts even before the recent decision overturning Roe, most notably in Iowa. That state’s highest court upheld the state’s constitutional right to abortion in 2018, voting 5-2 to strike down a law that required a mandatory waiting period before a woman could have an abortion.
The state’s Republican-led legislature and GOP governor changed the 2019 state Supreme Court judicial nomination process to give the governor more control. Last month, that court reversed itself in another case, saying abortion was not among the basic privacy rights in the state constitution.
Abortion opponents hope the Florida Supreme Court may follow a similar course in challenging a 15-week abortion ban currently working its way through lower courts.
The Florida Supreme Court has blocked a number of abortion restrictions over the years, citing a 1980 amendment to the state constitution protecting the right to privacy. Since taking office, Republican Gov. Ron DeSantis has managed to appoint three members to the seven-member court.
— Jennifer Kalfas contributed to this article.
Email Laura Kusisto at laura.kusisto@wsj.com
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