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Abortion Rights War Shifts to Battles Over State Constitutions

June 29, 2022, 9:45 AM

The fight over legal abortion is moving to courts in several states as both sides struggle over whether state constitutions include a right to the procedure.

Abortion rights advocates have notched a few early procedural wins in state courts since the US Supreme Court decided June 24 that the US Constitution doesn’t include the right.

But some state constitutions contain explicit privacy rights that some say could apply to abortion—a question now up to state supreme courts to decide.

In addition, some state constitutions have language protecting “natural” and “inherent” rights, or rights to bodily autonomy and personal decision-making that could be construed to uphold abortion rights, Amy Myrick, senior staff attorney for judicial strategy at the Center for Reproductive Rights, said.

A Texas court Tuesday temporarily halted a decades-old state law that would ban all abortions, after a state constitutional challenge. The court allowed abortions during up to six weeks of pregnancy to resume for now.

Louisiana and Utah judges June 27 temporarily blocked statewide bans being challenged by abortion rights proponents on constitutional grounds. Bans in Kentucky and Idaho were challenged June 27 on similar grounds.

But the state strategy, likely in development since the US Supreme Court granted review in its case, Dobbs v. Jackson Women’s Health Organization, is mostly untested, Rachel Rebouche, interim dean at Temple University’s Beasley School of Law said. Given the protections previously afforded by the federal constitution, there just “hasn’t been a need” to seek greater state protection, she said.

The outcomes will depend on myriad factors, including the type of challenge asserted, the state constitutional text, court precedent, and even the makeup of the state courts, Rebouche said. Lawsuits alleging abortion restrictions are overly vague or don’t contain clear exceptions, like Louisiana’s, for example, may stand a better chance at succeeding, she said.

“If you’re confused, you’re not alone,” Rebouche said. “Expect to see a very complicated legal landscape” that is constantly changing, she added.

Abortion rights advocates are pressing ahead for now.

Fighting abortion bans in individual states “will continue to be a critical part of our work ahead as we pursue every option to protect patients’ ability to get the care they need,” Helene Krasnoff, vice president of public policy litigation and law at Planned Parenthood Federation of America, said in an email.

“In the coming days, Planned Parenthood along with its partners will be filing more lawsuits in states that have already banned abortion and states expected to do so in the near future,” Krasnoff said.

State-level challenges have been filed in Mississippi, Michigan, Oklahoma, and Florida.

Staying in Lanes

Some state constitutions include due process and equal protection clauses that are similar, if not identical to, the federal 14th Amendment. Still, state courts don’t have to “stay in the lanes” of the federal constitution, Rebouche said.

Top state courts in Alaska, Florida, Minnesota, and Montana had already decided that explicit privacy rights granted by their constitutions encompass a fundamental right to abortion, Robert S. Peck, president of the Center for Constitutional Litigation in Washington, said.

According to the Montana Constitution, “the right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest.” In Armstrong v. State, the Montana Supreme Court recognized a fundamental due process right of individual privacy as a “core” constitutional right that includes abortion.

But some early decisions favoring abortion rights may not survive the latest, post-Dobbs push, Peck said.

Florida’s top court held in 1989 that the state constitution’s right to privacy encompasses a right to abortion, meaning the state would have to show that any restriction serves a compelling government interest, under what’s known as a strict scrutiny test. But that could be overturned due to changes in the court’s makeup, Peck said.

Florida Supreme Court justices initially are appointed by the governor, but must be on the ballot in the next general election following their appointment. The current justices were all appointed by Republican governors.

The Iowa Supreme Court recently overturned a 2018 decision recognizing a constitutional right to privacy encompassing a fundamental right to abortion. The state constitution’s due process and equal protection clauses are virtually identical to the 14th Amendment.

A group of justices appointed by Republican governors held June 17 that there is no fundamental right to abortion under the Iowa Constitution. Any restriction therefore will be evaluated according to whether the government can show it had a rational basis for imposing it, the lowest legal standard.

Changing the Text

Litigation is just part of Planned Parenthood’s strategy, Krasnoff said. The group also is looking at “ballot initiatives and constitutional amendments to pushing for proactive legislation to expand abortion access wherever possible,” she said.

In some states, abortion rights advocates are doubling down on previously recognized rights. A California ballot initiative to be voted on in November asks voters to enshrine reproductive rights in the California Constitution. The amendment builds on the state’s constitutional right to privacy and equal protection. Vermont also has a referendum proposing to add a constitutional right to abortion.

Kansas voters, have been asked to approve in August an amendment to the state constitution that would affirm that there is no state constitutional right to abortion. It would give “state legislators, the right to pass laws to regulate abortion.” Kentucky, and Montana also have abortion measures on statewide ballots.

Planned Parenthood receives funding from Bloomberg Philanthropies, the charitable organization founded by Bloomberg Law owner Michael Bloomberg.

To contact the reporter on this story: Mary Anne Pazanowski in Washington at mpazanowski@bloomberglaw.com

To contact the editors responsible for this story: Keith Perine at kperine@bloomberglaw.com; Cheryl Saenz at csaenz@bloombergindustry.com