Paul Benjamin Linton is an Illinois lawyer and the author of Abortion under State Constitutions: A State-by-State Analysis, now in its third edition (Carolina Academic Press, 2020). Since its first appearance in 2008, it has provided a detailed study of state court jurisprudence related to abortion. Back then, and even through subsequent editions, abortion litigation based on state constitutions was an important but secondary forum for promoting abortion. Although some state courts interpreted their constitutions to go further on abortion than the federal judiciary had (e.g., by finding state-based constitutional “rights” to public funding of abortion or narrowing parental rights to consent or even notification over a minor daughter’s abortion), in general federal courts remained the center-of-action for “abortion rights.”

That paradigm came crashing down with the 2022 Supreme Court decision in Dobbs v. Jackson Women’s Health Organization(597 US 215). Finding that there was no federally constitutionally guaranteed right to abortion, the Supreme Court’s overruling of Roe v. Wade(410 US 113) shifted the gravamen of decision-making about abortion from the federal courts back to the states. While Dobbs was largely assumed to have handed the abortion issue back to the state legislatures, two subsequent phenomena have somewhat challenged that assumption. One is the political effort to codify abortion as a state constitutional right, sometimes through the typical state process of a legislature proposing an amendment that is then normally placed on the ballot, but increasingly through the use of citizen-driven initiative-and-referendum mechanisms to propose constitutional amendments, bypassing in some cases (such as Ohio) pro-life legislatures. The other is a judicial effort to discover abortion rights in state constitutions, using those constitutions to buttress abortion on demand in the absence of a federal constitutional peg. Political mechanisms have so far been prevalent, but recourse to state constitutions through state courts cannot be excluded, especially in states such as Pennsylvania and Wisconsin.

Mr. Linton spoke with the Human Life Review on the state of abortion and state-based constitutional “rights” claims.

Human Life Review (HLR): You are an expert on state constitutional law pertaining to abortion, as well as author and editor of three editions of Abortion under State Constitutions. Under Roe, state constitutions were used in state courts to expand local “abortion rights” in areas where the federal courts had not ventured, such as mandating government funding. Since Dobbs, state constitutions have taken on a whole new significance when it comes to abortion. Can you comment?

Mr. Linton: Since the Supreme Court’s decision in Dobbs, there is no longer a federal constitutional right to abortion. Abortion advocates, therefore, have turned to state constitutions in an attempt to establish a constitutional right to abortion at the state level that would preclude or overturn state legislation protecting unborn human life—including both prohibitions of abortion and most regulations of abortion. That effort has been two-pronged: first, to persuade state courts to recognize a state constitutional right to abortion that is at least as broad as the right recognized in Roe v. Wade (1973), and second, to amend state constitutions to achieve the same objective. Although dozens of state court cases are currently pending, so far abortion advocates have largely failed to persuade state courts, post-Dobbs, to recognize a broad right to abortion. Of the five state supreme courts that have considered the issue, two (Idaho and South Carolina) have rejected a state right to abortion, while the other three (Indiana, North Dakota, and Oklahoma) have recognized only a limited right to abortion. Abortion advocates have been far more successful in proposing and obtaining voter approval of abortion rights state constitutional amendments (in California, Michigan, Ohio, and Vermont).

HLR: Previously, state constitutions were primarily used to mine “abortion rights” out of existing texts, but today abortion advocates seem to be using them to re-“codify” Roe v. Wade at the state level. What do you make of that shift?

Mr. Linton: The difference is between state litigation attempting to establish a state constitutional right to abortion that would be even broader than that recognized in Roe, and state legislation (whether statutes or state constitutional amendments) that codify the right to abortion recognized in Roe. Now that Roe v. Wade has been overruled, there is a much greater effort to create “mini-Roe v. Wade” decisions at the state constitutional level.

HLR: State constitutions can usually be amended in one of two ways: by action of a state legislature (always requiring a vote of the people to approve the amendment, except in Delaware) or directly by popularly initiated referenda, bypassing the legislature. How are these two methods being used to promote abortion at the state level? Also, do you have any thoughts on the use of popular-initiated referenda as a way of circumventing pro-life legislatures? Mr. Linton: This is the arena where the abortion battles will be (and are being) fought. It is extremely unlikely that any pro-life state legislature would place an abortion rights state constitutional amendment on the ballot for the voters to consider. The only alternative for abortion advocates in these states (where it is an option) is to use a “citizen initiative” to bypass the state legislature. Abortion advocates have also been successful in using citizen initiatives to overturn abortion legislation in both Michigan and Ohio, and they will be attempting to do so in many other states—among them Arizona, Arkansas, Florida, Missouri, Nebraska, and South Dakota. Defeating pro-abortion citizen initiatives should be a priority of the pro-life movement. That said, some perspective is called for here. Only a third of the states allow citizen initiatives to be used to propose state constitutional amendments; two-thirds of the states do not allow citizen initiatives to be used for that purpose, and that includes two-thirds of the eighteen states that have enacted laws prohibiting abortion throughout pregnancy (subject to limited exceptions). Of those eighteen states, a citizen initiative to amend the state constitution is an option in only six—Arizona, Arkansas, Missouri, North Dakota, South Dakota, and Oklahoma. It is not an option in the other twelve—Alabama, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Tennessee, Texas, Utah, West Virginia, Wisconsin, and Wyoming. And of the seven states that prohibit abortion for most, but not all, of pregnancy, only three—Florida, Nebraska, and Ohio—allow citizen initiatives for state constitutional amendments. The other four—Georgia, Iowa, North Carolina, and South Carolina—do not.

HLR: Back in 1973, prolifers initially put their efforts into a federal Human Life Amendment until an “incremental” strategy—seeking smaller legislative victories and changes in the federal courts through judicial nominations—replaced that thrust. Since Dobbs, pro-abortionists seem to have gone full force behind state pro-abortion amendments. Compare those two situations.

Mr. Linton: There is an obvious difference in the level of difficulty in proposing a federal constitutional amendment and a state constitutional amendment. The former requires two-thirds of the Senate and the House of Representatives to propose an amendment and three-fourths of the states to ratify any amendment. As former Judge Richard Posner once said, it takes only one committee in one chamber of thirteen state legislatures to defeat a federal constitutional amendment. A “federalism” amendment—returning the issue of abortion to the states—might have been possible at some point after Roe was decided, but the conflict in the pro-life movement between a “neutrality” amendment and a “pro-life” amendment helped to doom that effort. [Both “human life” and “state’s rights” amendments on abortion were rejected by the Democratic-controlled Senate Judiciary Committee in 1975. With Republican control of the Senate from 1981-87, an amendment by Sen. Orrin Hatch of Utah declaring there is no “right” to abortion but empowering states to regulate it failed on the Senate floor 49-50, on June 28, 1983—Ed.]. At the state level, proposing amendments is far easier. Although there are exceptions, generally speaking a simple majority (not a super-majority) of the legislature is sufficient to propose a state constitutional amendment, and (with the exception of Florida) a simple majority is sufficient to pass an amendment. And, as noted above, a third of the states allow citizen initiatives to be proposed to amend a state constitution, thereby bypassing a state legislature that would be unwilling to consider a particular amendment.

HLR: So far, state constitutional amendments ensconcing abortion-on-demand have been enacted in several states. Some, like California or Vermont, were to be expected. Others, like Ohio and maybe Michigan, were not. Do you have any general observations about these amendments?

Mr. Linton: The results in California and Vermont, while regrettable, were not unexpected and of course neither state was going to consider enacting any pro-life legislation of any kind. The results in Michigan and Ohio, however, were devastating, overturning decades of successful pro-life work in both states. There will be many more such challenges going forward, perhaps in as many as a dozen states this year. The difficulty is that abortion advocates have the ability to far outspend pro-life supporters, they have no compunction about misrepresenting what their proposals would actually achieve, and they present their arguments as an “either-or” choice for the voters: Either you support their amendment constitutionalizing abortion rights or the legislature will ban all (or virtually all) abortions. Abortion advocates like to speak in generalities and euphemisms about “reproductive rights” or “reproductive choice.” They also like to focus on the “hard case” reasons for abortion, particularly rape, incest, and fetal anomaly, for which many state abortion prohibitions make no exceptions. They assiduously avoid any acknowledgment that their proposals would allow abortion for any reason throughout all (or most) of pregnancy and bar the state from requiring parental consent or notice, imposing a short waiting period, mandating detailed informed consent, regulating abortion facilities, or restricting public funding.

HLR: Pro-abortionists seem to be settling on certain outlines to these state constitutional amendments. All practically guarantee abortion-on-demand through birth. Some speak only of abortion, while others weave abortion into a broader mix of “reproductive decision-making” that almost always mentions contraception. Why the difference? Does “reproductive decisionmaking” also smuggle artificial reproduction and surrogacy into constitutionally protected territory?

Mr. Linton: Depending upon the language in a given amendment, the answer to the last question is “Yes.” The drafters of amendments that specifically mention contraception may wish to convey the (entirely unwarranted) notion that “contraceptive rights” are on the line and that only by approving these amendments will the state be barred from interfering with such rights— even though no state has any interest or intent in doing so, and even though the federal constitutional right to use contraceptives was left untouched by the Supreme Court’s decision in Dobbs. The February 16 decision of the Alabama Supreme Court, holding that the state’s wrongful death statute applies to the wrongful destruction of “frozen embryos,” has been misrepresented in the media. The decision does not in any way prohibit in vitro fertilization (IVF) technology and has no application to the law of any other state. Further, the Alabama legislature is likely to amend the state’s wrongful death statute to modify or overturn the state’s supreme court decision.

HLR: Almost all of these amendments give nominal lip service to “viability,” yet in the end that restriction proves meaningless. Why? And if it’s nugatory, why go through the Kabuki theater?

Mr. Linton: Abortion advocates want to create the illusion, but not the reality, that their proposed amendments would allow the state to prohibit postviability abortions. They think that the illusion is necessary (at least in some cases) to convince the public that their amendment is reasonable and an acceptable compromise on the issue of abortion. Of course, even assuming that their amendments did permit meaningful restrictions on post-viability abortions, those abortions account for far less than 1 percent of all abortions. As to the illusion, these amendments do not actually permit the state to restrict post-viability abortions, because they mandate an open-ended “health” exception that swallows the rule. Moreover, some of these amendments employ a very narrow definition of “viability,” further limiting the scope of any permissible state legislation.

HLR: Many of these amendments incorporate provisions that make decisions about the necessity of an abortion unreviewable determinations by one’s “health care provider.” Is there a danger to that, and why the hesitation to speak of “physicians?”

Mr. Linton: Abortion advocates have argued for a long time that health care professionals other than physicians should be allowed to perform abortions. They have had some success in promoting that argument, either by virtue of litigation (as in Montana and other states) or by legislation (as in California and other states). No doubt a strong influencing factor here is that very few physicians, including very few obstetricians and gynecologists, are willing to perform abortions. To address the perceived “problem” of access, abortion advocates want to expand the population of persons permitted to perform abortions to include nurse practitioners, physician assistants, and other health care professionals.

HLR: Many of these amendments have also jettisoned talk of a pregnant “woman” and speak instead of a pregnant “patient,” “person,” or “individual.” What significance should we attribute to the incorporation of this “gender-neutral” language into amendments?

Mr. Linton: This language may be intended to expand the scope of “reproductive” rights (of various sorts) to men as well as women, although it may more likely be simply a result of the “Brave New World” in which “men,” as well as “women,” are deemed capable of becoming pregnant.

HLR: Ohio prolifers tried to derail last November’s pro-abortion constitutional amendment by attempting to adopt an interim amendment, raising the requirement to pass the amendment from a simple to a three-fifths majority, mirroring the threshold required in the legislature to enact amendments. Although formal amending processes usually require some form of super-majority, many initiative-and-referendum amendment processes only demand a simple majority. Do you see problems with this?

Mr. Linton: As I previously noted, for the most part, proposing a state constitutional amendment requires only a simple majority of a state legislature (although sometimes it requires the amendment to be proposed in two separate sessions or with an intervening election in between). Some state constitutions (such as Kansas, Tennessee, and Ohio, to name only three) do require a super-majority, however. And with respect to the public vote, Florida is the only state I am aware of that requires a super-majority (60 percent) to approve an amendment, though some states require that the total votes cast on a proposed amendment meet a certain threshold level. In the case of Ohio, I think the proposal to increase the margin of votes necessary to approve an amendment was viewed as a proxy vote on the abortion amendment itself, and failed for the same reason.

HLR: How far do you think these attempts to nail down Roe through state constitutional amendments are likely to go?

Mr. Linton: Keeping in mind, again, that only a third of the states allow citizen initiatives to amend their state constitutions, and that no pro-life legislature is likely to propose an abortion rights amendment, abortion advocates will continue to pursue citizen initiatives in those states where such initiatives are allowed, and in liberal states will seek to have the legislature propose abortion rights amendments (as in the case of California, Maryland, New York, and Vermont). The citizen initiatives are currently the biggest challenge to the pro-life movement.

HLR: Writing fifty years ago about Roe in his Yale Law Review article “The Wages of Crying Wolf” (reprinted in the Winter 1975 issue of the Human Life Review), Prof. John Hart Ely opined that although he thought the ruling was wrongly decided, he also thought it had “staying power.” In fact, Roe stayed forty-nine years, and arguably these amendments are an effort to prolong it. What do you think is the “staying power” of these amendments and how do they affect the pro-life struggle in those states?

Mr. Linton: An abortion rights amendment, once adopted, would be extremely difficult to overturn (at the state level). Whether such an amendment, once adopted, could be overturned by another amendment that would constitutionalize a right to abortion in the “hard cases” but otherwise allow the legislature to prohibit abortion is an interesting question, but not one that arises now. As Doug Johnson, the former federal legislative director for the National Right to Life Committee, told me many years ago (long before Dobbs), the ultimate solution to state constitutional rights to abortion would be a federal statute prohibiting abortion, which, under the Supremacy Clause, would override contrary state constitutions and statutes. Enacting such a law, of course, is not on the political horizon for the foreseeable future. It would require a strong pro-life majority in the House of Representatives, sixty votes in the Senate, and the support of the president.

HLR: In late January 2024, the Pennsylvania Supreme Court overturned its own precedent and apparently cleared the way for Medicaid funding of abortion in the Keystone State. Separately, the pro-abortion executive branch in Wisconsin is hoping to use that state’s supreme court to overturn Wisconsin’s former abortion law, which is now enforceable, as well as preclude the pro-life legislature from enacting new restrictions. Any views on either case? Mr. Linton: In the Pennsylvania case, a three-justice majority of five justices participating in the case overturned a unanimous judgment of seven justices handed down more than thirty-five years ago. The reasoning adopted by the court—rejecting the “unique physical characteristics” test that the earlier case had adopted for interpreting the state equal rights provision—finds almost no support in the law of other states with equal rights guarantees except New Mexico. The overwhelming majority rule followed by virtually all states with equal rights guarantees in their state constitutions is that a classification based upon and directly related to a physical characteristic that is unique to one sex does not violate the state ERA. As for Wisconsin, we will have to wait to see what the Wisconsin Supreme Court does with the case from Dane County, where a trial court judge decided that the nineteenthcentury abortion statute does not apply to physicians, an utterly absurd interpretation of the law that is indefensible.

HLR: Thank you.