As it toppled the national abortion precedent, the pro-life movement should fight to ward off state-level Roes and Caseys.
As it toppled the national abortion precedent, the movement should fight to ward off state-level Roes and Caseys.
I n Dobbs v. Jackson Women’s Health, the Supreme Court divested itself of an enormous power. The decision overturned the Court’s abortion precedents of Roe v. Wade and Planned Parenthood v. Casey. In doing so, it got the Court out of its longstanding project of overseeing abortion regulation across the country.
Justice Samuel Alito wrote in his opinion to whom this power now should go. “The authority to regulate abortion must be returned to the people and their elected representatives,” he said. The political branches, elected and installed by voters, would take over the task of legislating on this important and controversial matter. In particular, the people and political branches of the states would take the lead. This shift in authority rang true in the immediate aftermath of the landmark Dobbs ruling. Abortion restrictions passed in various state legislatures went into effect, including laws for which federal judges lifted existing stays. Missouri was the first to implement its ban, with states such as Arkansas and Kentucky following closely behind.
Yet we see another trend emerging that might thwart this shift in power to the people. A new set of judges stands ready to step in to once again strike down abortion regulations. These judges are not federal but state judges. Pro-choice groups such as Planned Parenthood will try to win state-level versions of Roe and Casey. Since Dobbs declared that abortion is not a judicially enforceable right found in the Constitution, pro-choicers will make the case that state constitutions protect abortion. State voters, legislators, and governors, then, may run up against roadblocks in the mission to restrict abortion.
In fact, the Kansas Supreme Court made that move back in 2019, three years before Dobbs. It found that Kansas’s constitution not only protected the right to abort an unborn child but that the state constitution provided more protection for abortion than the Supreme Court had claimed existed in the U.S. Constitution. Thus, even though Roe and Casey have fallen, Kansas still cannot act to protect unborn children. Planned Parenthood now will hope for similar results in other states.
The judicial battle over abortion in state constitutions will spread across the country over the next few years. Already, a judge in Utah and one in Louisiana have stayed the implementation of those states’ abortion restrictions. Planned Parenthood, which filed the Utah suit, looked to that state’s equal rights amendment to support a state-level abortion right. A lower-court judge in Michigan recently came to the same conclusion about that state’s constitution. The news isn’t all one-way, though. Iowa’s Supreme Court recently found no such right in its governing document, permitting the state governor and legislature to act as they saw fit after Dobbs’s release.
Pro-lifers must not merely turn their attention to statehouses. They must continue to battle in the courtroom for the cause of the unborn. Most state constitutions contain language about liberty much like that found in the U.S. Constitution. Those words must not be twisted to reinstate abortion on demand in states where the people and their representatives wish to protect life in the womb. Thankfully, in the Dobbs opinion, we have ample templates for making the case in state courts. Justice Alito’s opinion argued that no text, history, or tradition existed for an abortion right. He made that case in large part by turning to the legislative history of the states, pointing out how when the 14th Amendment was ratified in 1868, 28 out of 37 states banned abortion throughout pregnancy. By the early 20th century, nearly all states had imposed such a ban.
Pro-lifers in each state should expand on this start. They should point out to their judges how no text in their state constitutions supports a right to an abortion. They should dig into the history, too, showing how no tradition exists for an abortion right in their state, either. In fact, text and tradition both point much more toward abortion’s prohibition. Those states’ liberty was one that respected unborn life. Today’s lawmakers should have the same freedom and exercise the same wisdom.
The judicial battle over state constitutions also makes state judicial appointments and elections crucial. Pro-lifers should look to place judges on each state’s highest bench who are committed to their state constitutions’ text as originally understood by their framers. This commitment will reap benefits beyond the issue of abortion. But on that issue, it should keep the courts from thwarting pro-life efforts on behalf of the unborn.
Finally, pro-life groups must consider state constitutional amendments supporting life or at least denying an abortion right (Kansas will vote on the latter on August 2). Those efforts might be especially necessary where judges go beyond their state constitutions and construct an abortion right. That task might prove hard. But it would clear up any attempts to read ambiguity into states’ text and history to start making judicial policy.
Dobbs was a massive judicial relinquishment of power. It made room for the people and elected branches of states to protect the right to life legislatively. But the pro-life movement should not be blindsided by the state courtroom. As it toppled the national abortion precedent, the movement should fight to ward off state-level Roes and Caseys.