The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, if it overturns Roe v. Wade and Casey v. Planned Parenthood, won’t necessarily return abortion to the democratic process. Just as Roe interpreted the Constitution to protect abortion rights, state supreme courts may interpret their respective state constitutions to do the same.
Eleven state supreme courts have already done so. For example, the Supreme Court of California in People v. Belous determined — four years before Roe — that both the California and the U.S. constitutions protect “the fundamental right of the woman to choose whether to bear children.” In Belous, the court’s analysis of the two constitutions largely overlapped. But in later cases, the court made clear that Article 1, Section 1 of California’s Constitution, protecting “inalienable rights,” including (as of 1972) the right to privacy, protects abortion rights, and to a greater extent than Roe.
Decisions recognizing a constitutional right to abortion aren’t limited to liberal states such as California, where abortion will remain widely available after Dobbs. Take for example Florida, Iowa, and Montana. Republicans control the governorship and both chambers of the legislature in each of these states. And after Dobbs, these states may join other Republican-controlled states in adopting abortion restrictions that would have been impermissible under Roe and Casey.
Unlike these other states, however, Florida, Iowa, and Montana will face an immediate threat of their new abortion restrictions being held unconstitutional under their state constitutions. Like the Supreme Court of California, these states’ supreme courts have interpreted their state constitutions as protecting abortion rights — and more extensively than Roe and Casey do.
The Supreme Court of Florida, in a 1989 case, discovered the right to abortion in a state constitutional provision protecting the right to privacy. Ten years later, the Montana Supreme Court concluded that a similar provision in the Montana Constitution protects the right to “procreative autonomy.” More recently, the Iowa Supreme Court, describing the Iowa Constitution as a “living and vital instrument,” determined that the constitution’s due process and equal protection clauses protect the right to abortion.
After Dobbs, additional state supreme courts may follow these courts’ lead in reading their state constitutions as protecting abortion rights. In doing so, these courts would supplant the political process just as Roe has (though Roe has done so on a larger scale).
Given this potential for securing abortion rights statewide, abortion advocates will likely shift their focus to state courts once the Supreme Court decides Dobbs.
Indeed, the Center for Reproductive Rights has for years and with considerable success worked to get state courts to recognize abortion rights under state constitutions. The center boasts of having litigated constitutional cases in seven states that have “resulted in broader protections for abortion rights and access.” After Dobbs, we can expect an even more aggressive, state-focused strategy from the Center for Reproductive Rights and other abortion advocacy groups.
For pro-lifers, state constitutional amendments are the best way to protect against the center’s strategy of urging state courts to discover abortion rights in their respective constitutions. The amendment that Kentucky’s legislature recently proposed serves as a model. To be submitted to the voters in November, the amendment reads: “Nothing in this Constitution shall be construed to secure or protect a right to abortion or require the funding of abortion.” Kansas’s voters will consider a similar amendment in August.
If Kentucky’s and Kansas’s voters approve the amendments, the states will join four others — Alabama, Louisiana, Tennessee, and West Virginia — in making clear that their constitutions do not protect abortion rights.
Where constitutional amendment fails, pro-lifers in states the supreme courts of which have recognized a constitutional right to abortion will need to focus on the courts themselves. They will need to endeavor to get lawyers who disagree with the supreme courts’ abortion jurisprudence elected or appointed. They will also need to try to elect attorneys general who are willing to defend new abortion restrictions. And they will need to offer sophisticated arguments that the state supreme courts’ abortion decisions were, like Roe, wrong on the day they were decided.
Douglass Duncan is a recent law school graduate and writer in Texas.
