Providers and legal advocacy groups have so far filed about a dozen lawsuits in state court seeking to prevent broad abortion restrictions. The lawsuits cite a number of provisions in state constitutions, including those that offer privacy guarantees and protections against gender 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 improperly inventing new rights if they ruled otherwise, as they argue the Supreme Court did with the U.S. Constitution in its recently overturned 1973 Roe v. Wade. President Biden signed an executive order Friday that will direct agencies to protect access to abortion 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 previously recognized at the federal level. “I certainly don’t think state courts and state constitutions will completely replace federal protections for abortion rights, but I think they are an underrated source of rights,” said Alicia Bannon, who studies courts at New York University. Brennan Center for Justice. 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 cases in which plaintiffs say several different abortion bans in Oklahoma violate rights guaranteed by the state constitution to personal autonomy, bodily integrity and health.
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Do you think state constitutions could provide an effective way to protect the right to abortion? Why or why not? Join the discussion below. In North Dakota this week, the state’s only remaining abortion provider challenged a ban on most abortions that goes into effect later this month, arguing that it violates provisions in the state constitution that protect life, safety and happiness. Other disputes are being fought in more politically mixed states, such as Pennsylvania, Michigan and North Carolina, all of which have pending cases that could create state constitutional protections for abortion. The courts could play a key role in all three states, which have Democratic governors and Republican-led legislatures and in recent years have been unable to enact major laws to either protect or restrict abortion. Courts in some 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 showed how it views rights not expressly mentioned in the Constitution. WSJ’s Jess Bravin explains. Illustration: Ryan Trefes Abortion opponents warn that a new generation of abortion cases could create protracted state-level battles similar to the decades-long political, legal and cultural war that followed the Supreme Court decision that created a federal constitutional right to abortion. “Every state court has the ability to have a mini-Roe and read into its constitution words that aren’t there,” Carrie 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’s ruling. In a recent court filing 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 travel to path of Ro’. “If this court establishes a right to abortion, the state judiciary will face a flood of cases challenging every minute of the many laws governing abortion,” wrote Mr. Yost, a Republican. “Every judicial election will focus on this issue. Voters will be asked to choose justices based on the candidates’ willingness to expand or contract constitutional protections for abortion.” Any victories won by abortion rights supporters could be far less lasting than the Roe decision, which took nearly 50 years for abortion opponents to overturn.
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Capital Journal
Scoops, analysis and insights driving Washington from the WSJ’s DC bureau. Many state Supreme Court justices are elected or must be reconfirmed 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. A few states this year alone are poised to hold referendums on amendments that would either expressly protect or exclude abortion protections. State court observers said they expect abortion to bring a new level of money, attention and controversy to how state court judges are selected, similar to how abortion has helped polarize the selection process for Supreme Court justices. “Decisions recognizing the right to abortion cause backlash, and we see that across the board,” said Amy Myrick, an attorney at the Center for Reproductive Rights. Abortion helped reshape some state courts even before the recent decision that overturned Roe, most notably in Iowa. That state’s highest court recognized a state constitutional right to abortion in 2018, voting 5-2 to strike down a law that required a mandatory waiting period before a woman could get an abortion. The state’s Republican-led Legislature and GOP governor changed the nomination process for state Supreme Court justices in 2019 to give the governor more control. Last month, that court reversed itself in another case, saying abortion is not a fundamental privacy right in the state constitution. Abortion opponents are hopeful that the Florida Supreme Court could take a similar course in a challenge to the 15-week abortion ban that is currently in the hands of lower courts. Florida’s highest court had blocked some abortion restrictions over the years, citing a 1980 amendment to the state constitution that protects the right to privacy. Since taking office, Republican Gov. Ron DeSandis has been able to appoint three members to the seven-member court. —Jennifer Kalfas contributed to this article. Write to Laura Kusisto at [email protected] Copyright ©2022 Dow Jones & Company, Inc. All rights reserved. 87990cbe856818d5eddac44c7b1cdeb8
