Abortion Bans Collide With Red States’ Liberty, Autonomy Stands

Conservative state efforts to block abortions are colliding with their own guarantees to liberty and privacy, in some cases paradoxically helping activists to fight off abortion restrictions across the US.

The tension in the states has surfaced as activists look for ways to secure reproductive rights after the Supreme Court’s June Dobbs v. Jackson Women’s Health Organization decision stripping decades-old guarantees under federal law to abortion access.

States like Indiana, North Dakota, and Ohio have launched increasingly restrictive measures against abortions only to have state courts step in and reverse course.

Previously, federal courts were “the natural place to go” for plaintiffs looking to challenge abortion restrictions, said Liz Kukura, a Drexel University law professor specializing in reproductive health. But given “that federal law does not provide that relief any longer,” plaintiffs trying to ensure abortion access are “trying to make as much use as possible of what state constitutions provide.”

“It’s no longer about running to the federal courts for preliminary injunctions. It’s about running to the state courts,” Kukura said.

‘Different and Separate Hurdle’

At least 13 states have so-called trigger laws that were set to go into effect following the Supreme Court’s overturning of Roe v. Wade, according to the Guttmacher Institute. Likewise, at least 14 states have banned abortions at six weeks or earlier, a time period when many may not realize they’re pregnant.

Some states, however, are running into obstacles enacting their laws, particularly with state courts whose rulings rely on on broader issues of personal freedom.

“A lot of conservative states, what they, at least in a general sense, value is limited government protection of self-determination, liberty, and autonomy. And so if there are state cases that have interpreted their state constitutions to have these extra protections of individual freedoms, then that can create a different and separate hurdle,” said Michael Ulrich, assistant professor of health law, ethics, and human rights at Boston University.

In September, Indiana encountered one of these hurdles.

Indiana’s state constitution has broader bodily autonomy and self-determination rights under a right to liberty than those found in the US Constitution, wrote Monroe County Circuit Court Special Judge Kelsey B. Hanlon in temporarily halting the first post-Dobbs abortion ban.

The state’s constitution “is more explicit in its affirmation of individual rights and its limitation of legislative power to intrude into personal affairs than its federal counterpart,” the court said.

That battle, however, is far from over. Brought by plaintiffs represented by the American Civil Liberties Union of Indiana, the case was taken by the state’s more conservative state Supreme Court, which “could say, ‘we declare the constitution does have higher protections for liberty, but it doesn’t include the right to abortion,’” Ulrich said.

Challenges Underway

In general, plaintiffs challenging abortion restrictions are “trying to find arguments that tend to be stronger or much more accepted in conservative circles—so things like self-determination, autonomy, limited government, personal liberty, and freedom. That’s why you’re seeing these different kinds of arguments,” Ulrich said.

Rachel Rebouche, dean at Temple University’s Beasley School of Law, noted an increase in “these types of challenges—they’re very dependent on what the state constitution says and how the state supreme court interprets it.”

“If you have a state that has traditionally had a very individualist approach to bodily autonomy as a type of individual freedom, then they may likely have case law about their constitutional rights that has a very strong autonomy ethic,” Rebouche said.

States like Iowa and Kansas likewise “have laws that seek to protect individuals from state interference,” Rebouche said.

Courts across the US are grappling with the intersection of personal liberty and abortion access.

South Carolina’s top court, for example, has temporarily barred a state law criminalizing the majority of abortions after six weeks of pregnancy. Filed in July by activists and doctors, the lawsuit argues the abortion ban runs afoul of equal protection and due processes clauses under the state constitution.

A North Dakota state court in August temporarily halted a state abortion law from going to effect in order to allow a lawsuit to play out. That lawsuit alleges that North Dakota’s trigger law violates the state constitution because it deprives patients of their right to life, safety, and happiness.

The halted laws afford numerous individuals easier access to local abortion, but those openings may prove temporary, as higher courts could ultimately uphold them.

What’s more, while there may “continue to be some openings to use state constitutions to provide for abortion rights that are no longer available at the federal level,” Kukura noted that the dismantling of Dobbs has made it easier for states to impose restrictions.

“We can expect it to be worse—now states are even less limited in the extent to which they can prioritize fetal interests over the interests of a pregnant person,” Kukura said.

Problem of Personhood

“Fetal personhood” laws are another hot area in some states, and are likely to be an avenue at future attempts to strengthen the rights of the unborn.

States like Georgia and Arizona have moved to enact laws that grant embryos and fetuses the same rights as people.

A federal court has since blocked Arizona’s law from going into effect. But “the ultimate goal for at least a significant number of anti-abortion advocates” post-Dobbs could be new fetal personhood laws, Ulrich said.

“Look at just this Indiana law—if a fetus was considered a person and therefore abortion considered murder, you can’t say the Indiana state constitution protection of piety and autonomy would allow the killing of another person,” Ulrich said. And with a personhood law, “you limit exceptions for rape, incest, and medical issues because now the fetus has full rights.”

Anti-abortion advocates “haven’t fully succeeded in what many of them hoped to achieve, and so if anything this is a motivating factor to continue to push for that fetal personhood. So I think you’re very likely to see that,” he said.

What’s more, such laws could create “thorny consequences” well beyond a state’s borders, Rebouche said.

“If you leave the state to have an abortion where it is legal and return to Georgia, can you be charged with being an accomplice to murder?” she said.

“I think we’ll probably see states try to write personhood laws in order to try and avoid that,” she said. “Legislatures in states that have anti-abortion aspirations are figuring out these questions now.”