This has been an understandably devastating week for those who care about the rule of law and precedent. The Supreme Court appears poised in Dobbs v. Jackson Women’s Health Organization to reverse the due process and privacy protections of Roe v. Wade, undermining the reproductive autonomy of millions of American women. The leaked opinion, which is not final until issued, and could still change, would return the decision on the legality of abortions to the states. For many younger people, this feels unprecedented, and in some respects it is. Some small consolation may come from another reversal, the one documented by Justice William Brennan in his influential 1977 article, State Constitutions and the Protection of Individual Rights, one of the most cited law review articles of all time.
In the mid-1970’s, with the transition from the Warren Court to the Burger Court, Justice Brennan found himself increasingly in the minority, particularly in criminal procedure cases. Frustrated, he looked back to his time as a Justice on the Supreme Court of New Jersey. He urged advocates to look to state constitutions as a source of rights that the US Supreme Court would not recognize. State court constitutionalism got a huge boost from Brennan’s reasoning and allowed the states under the guarantee of education contained in all fifty state constitutions to find the basis for compulsory funding of equal education in states such as California, Kansas and New Jersey, under their own constitutions after failed US constitutional litigation; allowed state supreme courts to uphold a right to same sex marriage in states including Massachusetts, years before the US Supreme Court recognized it in Obergefell,and have recognized an enhanced right to privacy in other states.
Our academic readers of course know, but it is worth noting for general readers, that as well as the US Constitution, there is a constitution in each US state, and that those state constitutions yield to the federal one in the event of a conflict. The federal constitution provides a floor for rights, but states possess plenary powers, and can enhance rights beyond that floor. This power has been recognized by conservatives as well as liberals: Justice Kavanaugh noted it in a 2019 concurrence in a religious display case, and Judge Jeffrey Sutton of the US Sixth Circuit Court of Appeals has written about it at length. Our symposium on Sutton's most recent book is here.
While a lot of the action in protecting the right to a safe surgical abortion will take place through state legislation, there will also be a role for state constitutions and the Courts. One promising avenue is the equal protection clause contained in most state bills of rights. While many state supreme courts have been reluctant to interpret these clauses more expansively than the parallel federal provision, others have. Some scholars have argued for these “mini-equal protection clauses” to be given a more expansive reading; or for outright revisions to these clauses, which would have implications substantively on issues of race and gender as well as reproduction.
In states with direct democracy, anti-abortion forces will attempt to amend state constitutions to prohibit abortion. But those who wish to protect women’s rights are just as capable of getting initiatives placed on the ballot, which would enshrine the right in the state constitution. Both sides are active now: 2022 will feature the most abortion-related statewide ballot measures in 36 years.
Instead of ballot initiatives, in some states, advocates may decide the prudent strategy is to go straight to the court, and argue based on a state’s strongly-phrased Equal Protection clause, a state-level Equal Rights Amendment, right to common benefit, privileges and immunities, or privacy protections, among available theories.
Currently, seventeen states protect the right to choose through either legislation or constitutional language, although Florida has just banned abortion after 15 weeks of pregnancy.
In a 2015 article that was a good guide to what is happening now, Dawn Johnsen points out that one of the biggest obstacles to judicial participation in the protection of women’s reproductive rights is the fact that so many judges in the states are elected in partisan races, rather than appointed or selected under merit selection systems. Anti-choice forces have marshaled massive amounts of cash to defeat judges who have upheld choice, and it is not an accident that some of the same organizations and attorneys that have been active in the anti-choice movement have also opposed efforts to insulate judges from punishing judicial election campaigns.
In a post-Roe future, advocates will need to focus on state level action in a variety of ways: through legislation, certainly, but also by looking at state constitutional amendments, interpretation of state bills of rights, and by working for the selection of fair and impartial judges. Today may be for mourning, but next week is for action.