Building Protections for Reproductive Autonomy in State Constitutions


A extra expansive imaginative and prescient for reproductive autonomy is critical—and state courts can paved the way.

With the Supreme Court docket poised to overturn Roe v. Wade, and protections from federal courts devolving, state courts can present an alternate path. Past merely backstopping potential injury to or the entire lack of Roe, state courts have the ability to interpret their very own state constitutions to advance reproductive autonomy—effectively past current frameworks.   

During the last three many years, high courts in 11 states have acknowledged that their constitutions defend abortion rights independently from and extra strongly than the U.S. Structure, or have struck down restrictive legal guidelines that the Supreme Court docket has upheld. As outlined in our new report, “State Constitutions and Reproductive Rights,” these opinions haven’t solely protected entry throughout the state, but in addition collectively influenced constructive selections in different states.

Whereas state courts nonetheless have far to go—none have addressed the racial discrimination that undergirds restrictions, for instance, or thought-about the intersection of being pregnant, childbirth and safety for households as a part of reproductive autonomy—they’ve constructed a authorized basis that goes past what the federal courts have allowed.

Demonstrators rally in opposition to anti-abortion and voter suppression legal guidelines outdoors the Texas State Capitol on Oct. 2, 2021 in Austin, Texas. Since Sept. 1, 2021, abortion has been banned within the state after six weeks gestation. (Montinique Monroe / Getty Photographs)

State Traditions of Private Autonomy

One vital means that state courts have averted pitfalls in federal jurisprudence is by expansively deciphering the textual content and historical past of their constitutions to safeguard reproductive rights. This contrasts with many federal courts—whereby the method has been to make use of slender, backward-looking evaluation to reject rights equivalent to intimacy, same-sex marriage and abortion.  

For instance, the Kansas Supreme Court docket acknowledged that the Kansas Constitution protects the right to abortion by analyzing the structure’s unique drafting—and located that its framers supposed to broadly defend rights to non-public autonomy, dignity, bodily integrity and self-determination.

Equally, the Montana Supreme Court docket held that open-ended constitutional language required judges to expansively define and protect procreative autonomy, together with abortion. And when the Iowa Supreme Court docket recognized that abortion was a fundamental liberty and equality right below the Iowa Structure, it famous that restrictions on reproductive rights drew on outdated stereotypes.

State courts have averted pitfalls in federal jurisprudence by expansively deciphering the textual content and historical past of their constitutions to safeguard reproductive rights.

Elementary Proper to Privateness

In contrast to the federal courts, state courts have been extra susceptible to acknowledge that privateness rights defend abortion entry.

The Alaska Supreme Court docket held in a number of rulings that the best to privateness within the Alaska Structure confers the strongest protections for abortion, together with for minors and individuals who obtain Medicaid—teams that U.S. Supreme Court docket decisions have largely deprived of privateness rights. The Florida Supreme Court docket additionally acknowledged that the best to privateness within the Florida Structure protects in opposition to authorities interference in private life, together with restrictions on abortion. Excessive courts in California, Massachusetts, Minnesota, New Jersey and Montana have additionally relied on privateness rights to guard abortion as a basic proper extra strongly than federal case legislation.   

Equality Arguments

Provided that intercourse stereotypes in regards to the position of girls and discrimination in opposition to disfavored teams undergird abortion restrictions, it’s plain to many who the best to determine whether or not to proceed a being pregnant is essential for equality. And but, the Supreme Court docket has not held that abortion restrictions violate equal safety ensures below the U.S. Structure. In a single context, in actual fact, it directly upheld insurance policies that discriminate on the idea of being pregnant as in line with equal safety.

Equality arguments have fared significantly better in lots of states—together with in Alaska, Arizona, California, Iowa, New Jersey and New Mexico. The Alaska Supreme Court docket, for instance, recognizing that low-income folks face unsurmountable obstacles to abortion entry within the absence of public funding, struck down a legislation that excluded abortion from Medicaid protection. And the New Mexico Supreme Court docket used its structure’s equal rights modification to strike down the state Medicaid program’s limitations on abortion funding as intercourse discrimination.

Constructing—and Defending—Precedent

Despite the fact that solely a minority of state courts so far have acknowledged unbiased and stronger protections for abortion rights of their state constitutions, these selections nonetheless have contributed to positive outcomes nationwide. As this physique of precedent turns into extra sturdy, it has the potential to turn into more and more influential.

If not shielded from partisan and ideological assaults, it’s going to turn into even tougher for state courts to construct a stronger and extra inclusive jurisprudence for reproductive autonomy.

Nonetheless, the politics may be perilous. In Florida and Iowa, state Supreme Court docket justices who voted to strike down abortion restrictions had been changed by governors who disfavor abortion rights. In Montana, after virtually 25 years, the state attorney general recently asked the state Supreme Court to overrule its opinion holding that the structure protects abortion. And in Kansas, abortion opponents have positioned an initiative on the ballot to strip abortion rights from the state structure.

If not protected from partisan and ideological attacks, it’s going to turn into even tougher for state courts to construct a stronger and extra inclusive jurisprudence for reproductive autonomy—one which redresses racial and a number of intersecting types of discrimination, and ties collectively abortion with the best to be pregnant and have and lift kids on one’s personal phrases. And state courts might want to transfer ahead below immense stress with 25 states poised to ban or severely restrict abortion if Roe falls.

To safeguard entry, preserve previous positive aspects and construct on the probabilities state constitutions supply to creatively surpass federal case legislation, there have to be concerted efforts to protect and improve state judiciaries. A extra expansive imaginative and prescient for reproductive autonomy is critical—and state courts can paved the way.

Care about reproductive well being, rights and justice? We do too. Sign Ms.’s relaunched “We Have Had Abortions” petition—whether or not you’ve had an abortion, or stand in solidarity with those that have—to let the Supreme Court docket, Congress and the White Home know: We is not going to hand over the best to protected, authorized, accessible abortion. (Or go back to the “Beyond Roe” essay collection.)


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