Without Roe v. Wade, Litigants Look to State Constitutions for Protection of Abortion Rights


The U.S. Supreme Courtroom dominated final week in Dobbs v. Jackson Women’s Health Organization that the U.S. Structure doesn’t assure a proper to abortion. However a number of state supreme courts have rejected abortion bans as inconsistent with state constitutional provisions, and present litigation over new restrictions seeks to ascertain extra such precedents. Some lawsuits don’t declare constitutional safety for abortion rights however as an alternative search to delay implementation of “set off” bans designed to take impact after the reversal of Roe v. Wade, the 1973 precedent that the Supreme Courtroom repudiated in Dobbs. Here’s a rundown of the place issues stand.



In 1997, the Alaska Supreme Courtroom unanimously ruled that the state structure “protects reproductive autonomy, together with the precise to abortion.” The court docket cited Article I, Part 22 of the Alaska Structure, which was adopted in 1972 and says, “The correct of the individuals to privacy is acknowledged and shall not be infringed.”

The justices concluded that “a girl’s management of her physique, and the selection whether or not or when to bear youngsters, includes the type of decision-making that’s “vital for…civilized life and ordered liberty.” They added that “our prior choices assist the additional conclusion that the precise to an abortion is the type of basic proper and privilege encompassed inside the intention and spirit of Alaska’s constitutional language.”


In 1969, 4 years earlier than Roe established a constitutional proper to abortion, the California Supreme Courtroom ruled {that a} state regulation permitting a girl to acquire an abortion solely when it’s “essential to protect her life” was so imprecise that it violated the precise to due course of. It mentioned “a definition requiring certainty of loss of life,” as urged by the federal government, “would work an invalid abridgment of the lady’s constitutional rights,” together with “the lady’s rights to life and to decide on whether or not to bear youngsters.”

The justices reasoned that “the basic proper of the lady to decide on whether or not to bear youngsters follows from the Supreme Courtroom’s and this court docket’s repeated acknowledgment of a ‘proper of privacy’ or ‘liberty’ in issues associated to marriage, household, and intercourse.” They famous that “not one of the events who’ve filed briefs on this case have disputed the existence of this basic proper.”


A 1980 modification to Florida’s structure explicitly protects the “proper of privacy,” saying “each pure individual has the precise to be not to mention and free from governmental intrusion into his non-public life besides as in any other case supplied herein.” That proper, the Florida Supreme Courtroom ruled in 1989, “is clearly implicated in a girl’s choice of whether or not or to not proceed her being pregnant.”

Emphasizing that the Florida Structure’s express safety of privacy extends additional than the provisions on which Roe relied, the justices thought it apparent that Florida’s assure encompassed the choice of “whether or not, when, and the way one’s physique is to turn out to be the car for one more human being’s creation.” In truth, they mentioned, “we will conceive of few extra private or non-public choices regarding one’s physique that one could make in the middle of a lifetime.” The court docket dominated that an abortion regulation can move muster solely whether it is “the least intrusive technique of furthering [a] compelling state curiosity.”

That precedent may very well be in danger. Florida’s Republican governor, Ron DeSantis, appointed three of the Florida Supreme Courtroom’s seven justices. Justice Alan Lawson, who was appointed by Gov. Rick Scott (now a senator) in 2016, is retiring in August, which suggests the court docket will quickly have a majority appointed by DeSantis, who this yr signed into a law a ban on abortion after 15 weeks. DeSantis has said he additionally favors a “heartbeat” regulation that may prohibit abortion after fetal cardiac exercise may be detected, which usually occurs round six weeks right into a being pregnant.

The 15-week ban, which is scheduled to take impact on Friday, would have an effect on lower than 4 % of abortions in Florida, in accordance with data collected by the Facilities for Illness Management and Prevention (CDC). Deliberate Parenthood argues that the regulation nonetheless conflicts with the 1989 abortion precedent and the state structure. John Cooper, a circuit choose in Tallahassee, said on Thursday he would grant the group’s request for a brief injunction, though that may not happen quickly sufficient to stop the ban from taking impact. The regulation could in the end be upheld by the Florida Supreme Courtroom, which may modify or reverse its 1989 choice.


In 2013, the Illinois Supreme Courtroom rejected the argument {that a} proper to abortion is protected by the state structure’s privacy clause, which says, “The individuals shall have the precise to be safe of their individuals, homes, papers and different possessions towards unreasonable searches, seizures, invasions of privacy or interceptions of communications by eavesdropping units or different means.” However the court docket concluded that “our state due course of clause” gives “protections, with respect to abortion, equal to these supplied by the federal due course of clause” as interpreted in Roe.


In 2019, the Kansas Supreme Courtroom ruled that the state structure’s Invoice of Rights, which says “all males are possessed of equal and inalienable pure rights, amongst that are life, liberty, and the pursuit of happiness,” protects “a girl’s proper to determine whether or not to proceed a being pregnant.” It mentioned the Invoice of Rights “affords safety of the precise of private autonomy, which incorporates the power to regulate one’s personal physique, to claim bodily integrity, and to train self-determination.” That proper, in flip, “permits a girl to make her personal choices relating to her physique, well being, household formation, and household life—choices that may embrace whether or not to proceed a being pregnant.”


In 1981, the Supreme Judicial Courtroom of Massachusetts affirmed that abortion entry is protected by the state structure’s assure of due course of. It famous a 1974 decision during which “we held {that a} pregnant lady’s husband had no proper, whether or not constitutional or at frequent regulation, to declaratory and injunctive reduction designed to stop her from securing an abortion.” In that case, “we emphasised the precept of private autonomy inherent in these instances.” The court docket additionally cited its 1977 decision overturning an area ban on abortion clinics, saying the federal government ought to take a impartial place on the difficulty, which “forbids the State to interpose materials obstacles to the effectuation of a girl’s counselled choice to terminate her being pregnant through the first trimester.”


In 1995, the Minnesota Supreme Courtroom ruled that “the precise of privacy below the Minnesota Structure encompasses a girl’s proper to determine to terminate her being pregnant.” It mentioned “each events agree that ladies have a basic proper to acquire an abortion earlier than fetal viability below the Minnesota and United States Constitutions.”


In 1999, the Montana Supreme Courtroom ruled that the “proper of privacy” assured by the state structure protects “procreative freedom,” together with the precise to acquire a pre-viability abortion. It mentioned the Montana Structure “broadly ensures every particular person the precise to make medical judgments affecting her or his bodily integrity and well being in partnership with a selected well being care supplier free from authorities interference.”

New Jersey

In 1982, the New Jersey Supreme Courtroom recognized “the basic proper of a girl to regulate her physique and future,” together with “the selection to terminate a being pregnant or bear a baby.” It cited Article I, Paragraph 1 of the New Jersey Structure, which says, “All individuals are by nature free and unbiased, and have sure pure and unalienable rights, amongst that are these of having fun with and defending life and liberty, of buying, possessing, and defending property, and of pursuing and acquiring security and happiness.” That language, the court docket mentioned, “protects the precise of privacy,” which incorporates “a girl’s proper to decide on whether or not to hold a being pregnant to full-term or to endure an abortion.”



A 1901 law, enacted when Arizona was nonetheless a territory, bans abortion besides when vital to save lots of a pregnant lady’s life. That regulation was enjoined after Roe however continues to be on the books, which has led to considerable confusion about whether or not it may be enforced.

John Keenan, authorized director on the ACLU of Arizona, says “abortion stays authorized in Arizona” so long as the pre-Dobbs injunction stays in place, however “suppliers have been compelled to cease medical abortion care to keep away from the chance of prosecution.” Gov. Doug Ducey and Lawyer Normal Mark Brnovich, each Republicans, disagree about whether or not the 1901 ban may be enforced: Brnovich says it may, whereas Ducey says it may’t.

In March, Ducey signed into law a ban on abortion after 15 weeks of gestation apart from medical emergencies. That law, which is analogous to the Mississippi ban upheld in Dobbs, takes impact in September. It doesn’t have an effect on the overwhelming majority of abortions: In 2019, in accordance with the CDC’s data, 95 % of Arizona abortions have been carried out at 15 weeks or earlier.

The Arizona Structure contains an express privacy clause: “No individual shall be disturbed in his non-public affairs, or his dwelling invaded, with out authority of regulation.” In 2002, the Arizona Supreme Courtroom ruled that state restrictions on Medicaid protection of abortions violated the state structure’s “equal privileges and immunities” clause. Nevertheless it didn’t affirm a decrease court docket’s ruling that the privacy clause protects a girl’s proper to terminate a being pregnant, saying the case was “not about the precise to an abortion.”


On Thursday, a state choose issued a restraining order that quickly blocks enforcement of Kentucky’s “set off” regulation, which took impact after Roe was overturned. That law, enacted in 2019, prohibits abortion at any stage of being pregnant. The one exception is for instances the place an abortion is “vital in cheap medical judgment to stop the loss of life or substantial threat of loss of life resulting from a bodily situation, or to stop the intense, everlasting impairment of a life-sustaining organ of a pregnant lady.”

Jefferson County Circuit Choose Mitch Perry, whose order additionally covers a six-week ban enacted in 2019, was responding to a lawsuit by the ACLU and Deliberate Parenthood. They argue that the bans violate the state structure by “infringing on Plaintiffs’ sufferers’ rights to privacy and self-determination.”

The lawsuit cites Sections 1 and a pair of of the Kentucky structure. Part 1 says “all males are, by nature, free and equal, and have sure inherent and inalienable
rights,” together with “the precise of having fun with and defending their lives and liberties” and “the precise of looking for and pursuing their security and happiness.” Part 2 forbids “absolute and arbitrary energy over the lives, liberty and property of freemen.”

Perry’s order doesn’t tackle the deserves of the plaintiffs’ claims, which Kentucky Lawyer Normal Daniel Cameron says haven’t any authorized foundation. He promises that “we’ll do every little thing doable to proceed defending this regulation and to make sure that unborn life is protected within the Commonwealth.”


Louisiana’s 2006 trigger law makes abortion unlawful besides when it’s “vital in cheap medical judgment to stop the loss of life or substantial threat of loss of life resulting from a bodily situation, or to stop the intense, everlasting impairment of a life-sustaining organ of a pregnant lady.” Another trigger law enacted this yr added just a few extra narrow exceptions, which don’t embrace pregnancies attributable to rape or incest.

These legal guidelines took impact instantly after Roe‘s reversal. However on Monday, a state choose issued a restraining order that quickly blocked their enforcement. Orleans Parish Choose Robin M. Giarrusso was responding to a lawsuit by abortion suppliers who argued that the set off legal guidelines are “unconstitutionally imprecise.” They are saying the legal guidelines “fail to supply discover of what conduct is prohibited, what exceptions are permitted, and what penalties connect.” Moreover, they “don’t present discover of when any one of many Set off Bans, or all of them collectively, are literally in pressure whereas concurrently purporting to be instantly efficient” after Roe‘s reversal.

“In a surprising state of affairs, the day Dobbs was issued, state and native officers issued conflicting statements about whether or not and which set off legal guidelines have been really in impact and thus what conduct—if any—was prohibited,” the plaintiffs said. “Due course of requires extra.”

A listening to within the case is scheduled for July 8. Citing abortion regulation historian Mary Ziegler, The Washington Publish says “the injunction on Louisiana’s set off ban will nearly actually be lifted.”


In Could, responding to a problem by Deliberate Parenthood, a state choose quickly enjoined enforcement of a 1931 regulation that bans abortion until it’s essential to “protect the life” of a pregnant lady. Michigan Courtroom of Claims Choose Elizabeth Gleicher mentioned there was a “sturdy probability” that Deliberate Parenthood would prevail.

Gleicher thought it was clear that “the precise to be not to mention—the precise to bodily integrity—was understood by the ratfiers of the 1963 Michigan Structure as a basic element of due course of.” The correct to bodily integrity, she mentioned, features a proper to abortion.

“The hyperlink between the precise to bodily integrity and the choice whether or not to bear a baby is an apparent one,” Gleicher wrote. “Compelled being pregnant, and the concomitant compulsion to endure medical and psychological dangers accompanying it, contravene the precise to make autonomous medical choices. If a girl’s proper to bodily integrity is to have any actual which means, it should incorporate her proper to make choices concerning the well being occasions most probably to alter the course of her life: being pregnant and childbirth.”

Gleicher’s injunction bars Michigan Lawyer Normal Dana Nessel, the defendant, from implementing the abortion ban. It additionally applies to “anybody performing below defendant’s management and supervision.” Nessel, a Democrat who was not inclined to implement the 1931 regulation anyway, says that means “offering abortion care in Michigan can’t be prosecuted.” The Michigan Division of Licensing and Regulatory Affairs concurs.

Even the Republican-controlled legislature, which desires the ban to take impact, complains that Gleicher’s injunction bars “the Lawyer Normal and all county prosecutors” from implementing it. However Kent County Prosecutor Chris Becker and Jackson County Prosecutor Jerard Jarzynka, each Republicans, claim the injunction doesn’t constrain them as a result of they’ve unbiased authority, as regionally elected officers, to implement state regulation.


In 2019, Ohio enacted a six-week ban that may apply to roughly three-quarters of abortions carried out in that state. On Wednesday, the ACLU of Ohio challenged that ban in a lawsuit that argues the precise to abortion is “assured by the Ohio Structure’s broad protections for particular person liberties.”

The criticism cites the “due course of regulation” clause, which the Ohio Supreme Courtroom has held “protects substantive in addition to procedural due course of rights.” The ACLU notes choices during which Ohio courts have mentioned these substantive rights embody “issues involving privacy, procreation, bodily autonomy, and freedom of selection in well being care choice making.” The lawsuit argues that the Ohio Structure subsequently ensures a “basic proper to an abortion.” The ACLU says Ohio’s abortion ban additionally violates the state structure’s assure of equal safety as a result of it “discriminates towards ladies.”


A six-week ban, which evaded early judicial intervention by charging non-public litigants with enforcement, took impact in September. On Tuesday, a state choose issued a restraining order that temporarily blocks enforcement of a 1925 regulation that bans abortion besides to save lots of the mom’s life. Harris County Choose Christine Weems mentioned implementing that regulation, which was deemed unconstitutional in Roe, would “inevitably and irreparably chill the supply of abortions within the very important final weeks during which safer abortion care stays accessible and lawful in Texas.”

Weems was responding to a lawsuit during which abortion suppliers argue that the pre-Roe ban was “repealed expressly or by implication.” Additionally they argue that “the declaratory judgment in Roe that the Pre-Roe Ban is unconstitutional stays in impact until and till the judgment is reopened and vacated.” The criticism says permitting enforcement of the 1925 ban would violate the precise to due course of as a result of “basic uncertainty” concerning the regulation’s standing “authorizes or encourages arbitrary and discriminatory enforcement and fails to supply honest warning of whether or not its prohibitions exist in order that peculiar individuals could conform their conduct accordingly.”

Texas additionally has a trigger law, enacted in 2019, that bans abortion besides when persevering with a being pregnant poses a threat of loss of life or “substantial impairment of a serious bodily perform.” That regulation is meant to take impact 30 days after Roe‘s reversal. Lawyer Normal Ken Paxton says the countdown doesn’t begin till the Supreme Courtroom points its judgment (versus its opinion) in Dobbs, which suggests the ban will not take impact till about two months from now.


Utah’s 2020 trigger law permits abortion when it’s vital to save lots of the mom’s life or keep away from “a critical threat of considerable and irreversible impairment of main bodily perform.” The regulation additionally contains exceptions for instances involving rape, incest, or a fetus with a “uniformly diagnosable” and “uniformly deadly” defect or a “extreme mind abnormality” leading to a “mentally vegetative state.” In any other case, abortion is prohibited.

On Monday, a state choose in Salt Lake Metropolis issued a restraining order that temporarily blocks enforcement of Utah’s set off regulation. Third District Choose Andrew Stone mentioned the regulation “upsets the longstanding establishment on which Utah ladies and their households have relied for at the very least 5 many years.” If the ban is enforced, he mentioned, it “will pressure many Utahns to proceed carrying a being pregnant that they’ve determined to finish, with all the bodily, emotional, and monetary prices that entails.”

Stone was responding to a lawsuit during which Deliberate Parenthood and the ACLU argue that the abortion ban violates a number of rights assured by the state structure. They are saying the Utah Supreme Courtroom has acknowledged that the state structure protects “the rights inherent in household relationships,” which the ban violates as a result of it “prevents people from making basic choices about learn how to organize their household relationships.”

The lawsuit additionally argues that the set off regulation violates the precise to equal safety as a result of it “disproportionately limits ladies’s bodily autonomy and liberty”; the “substantive due course of proper to bodily integrity,” which is “violated every time one’s well being and security is imperiled with out one’s consent”; “the prohibition on involuntary servitude” by “forc[ing] individuals who turn out to be pregnant to undertake the psychological and bodily labor of being pregnant and childbirth towards their will”; and “the precise to privacy,” which the Utah Supreme Courtroom has said contains “these facets of a person’s actions and method of dwelling that may typically be thought to be being of such private and personal nature as to belong to himself and to be of no correct concern to others.”

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