When the Supreme Court overturned Roe v. Wade, they returned the battle over abortion rights to the states. Since then, there has been a lot of activity in state legislatures either to expand or restrict abortion. Some state laws that pre-dated Roe, or which were passed in anticipation of its downfall, are springing to life.
In the aftermath of Dobbs v. Jackson Women’s Health, increasing attention is also being paid by both pro-lifers and abortion advocates to state constitutions. So it’s important to understand the lay of the land and what may be happening in this crucial area.
State constitutions emerge from the shadows
Over the past 70 years, the Supreme Court vastly expanded the reach of the federal constitution over state laws and actions. There was a revolution in jurisprudence in areas like criminal procedures (for instance, the privilege against self-incrimination), free speech, religious freedom, and establishment of religion. The Fourteenth Amendment’s provisions guaranteeing due process and equal protection of the laws have become the dominant vehicle for litigation over civil rights.
The dominant legal theory for interpreting these provisions was called “living constitutionalism.” This theory holds that the Constitution is not fixed in meaning but rather evolves along with society and must adapt to contemporary values.
Roe was probably the best example of “living constitutionalism.” All the sexual revolution decisions by the Supreme Court and lower federal courts were based on this open-ended theory of constitutional law—Griswold v. Connecticut (contraception), Lawrence v. Texas (homosexual sex), and Obergefell v. Hodges (same-sex marriage).
Concentrating on the federal constitution had a side effect—state constitutional law tended to fall by the wayside. This was particularly true about abortion. Roe swept away the abortion laws of all 50 states and made clear that the federal constitution—or at least the so-called “right to privacy” that is in its “penumbras”—was what mattered.
To stay with the terrible analogy, state constitutions were at least partially eclipsed when it came to abortion. There were some state court decisions on abortion that followed Roe‘s example and invented a state constitutional right to abortion under a variety of amorphous theories as “privacy” or “autonomy.” But the federal constitution was still the dominant field of battle.
Now that abortion has gone back to the states, that is no longer the case. State constitutions aren’t in the shadow anymore.
A status quo in flux
Now, there is a lot more to pay attention to—fifty different constitutions—in order to understand where things stand in abortion law. This is complicated and can change at any time with a court ruling.
Some states like Arizona can be interpreted in different ways. In 2002, their high court held that restrictions on public funding for abortion violated their state Equal Protection Clause, but specifically declined to say if the state constitution generally protected abortion. After Dobbs, their Supreme Court struck down the state’s pre-Roe statute, but their legislature went on to pass a fifteen-week ban that is in effect and is being enforced. So some sources list Arizona as having strong pro-abortion protections, while others consider it pro-life.
Where each state stands on abortion
Nevertheless, it is possible to do a reasonably reliable head-count of the states. The following numbers are based on the pro-abortion Center for Reproductive Rights and the Brennan Center, and pro-life expert Paul Benjamin Linton.
Thirteen state constitutions have been held to protect abortion rights. Prior to Dobbs these were: Alaska, California, Florida, Kansas, New Mexico, Massachusetts, Minnesota, Montana, and New Jersey. There was a high court decision in New York that stated this, but only in passing and not as a definitive holding, but I would still count it. After Dobbs, South Carolina’s Supreme Court joined the list, and voters in Michigan and Vermont passed a pro-abortion constitutional amendment.
Six states have a constitutional provision that that a right to an abortion is not protected (so-called “neutrality amendments”): Alabama, Arkansas, Louisiana, Tennessee, Rhode Island, and West Virginia. Two additional states, Idaho and Iowa, have court rulings that thir constitution is neutral on abortion. Three states, Kansas, Kentucky, and Montana, failed to pass neutrality amendments in 2022.
Two states have constitutional provisions limiting or regulating abortion in some way, such as a ban on state funding (Colorado) and requiring parental notification (Florida).
No state constitution has explicitly guaranteed the right to life of an unborn child or recognized them as legal “persons” with rights to equal protection and due process of the laws.
So as I add it up, thirteen states constitutionally guarantee abortion, eight explicitly do not. In the remaining 29 states, the question has not yet been decided.
To complicate matters even further, there has been a torrent of litigation in the aftermath of Dobbs. The count changes constantly, but over three dozen cases in over twenty states have been filed in the last year, seeking recognition of a state constitutional right to abortion. These cases will take years to resolve.
Which theory will prevail?
The dominant theory for interpreting the U.S. Constitution, “living constitutionalism,” has been challenged in recent years by a competing theory—”originalism.” We have seen this at confirmation hearings for Supreme Court justices, and in numerous recent decisions, including Dobbs. That debate is now spreading to the states.
Originalism holds that the Constitution should be interpreted according to its original public meaning at the time of its ratification by “we the people.” For example, terms like “liberty” and “due process of law” in the Fifth and Fourteenth Amendment should be given the same meaning that they had in 1789 and 1867 respectively. This approach currently is held by a majority of the Supreme Court, as evidenced by the decisions in Dobbs and other cases.
Originalism was developed by conservative scholars in response to “living constitutionalism.” Conservatives justifiably saw that theory as a transparent excuse for judges to legislate from the bench to implement their personal political views. Of course, liberals accuse originalists of the same fault.
This debate is crucial for how state high courts interpret their constitutions regarding abortion. If state high courts follow originalism, they will hold in virtually every state that there is no constitutional right to an abortion.
Look at the history. Forty-six states enacted their constitutions prior to Roe. Two of those constitutions (Massachusetts and New Hampshire) pre-date the federal constitution. Thirty-two were enacted prior to 1900, at which time every state treated abortion as a crime. No court recognized a state constitutional right to abortion before Roe.
In fact, no state constitution explicitly recognized a right to an abortion prior to Dobbs, and six explicitly excluded it. Only after Dobbs did three states (California, Michigan, and Vermont) adopt pro-abortion amendments.
So it is absurd to contend that the original public meaning of forty-seven state constitutions guarantees a right to abortion.
On the other hand, if living constitutionalism continues to guide courts, then “anything goes” and history is irrelevant. Terms like “liberty,” “privacy,” “autonomy,” and “equal protection” can be twisted and bent to mean almost anything if a judge has total discretion to adapt them to contemporary (i.e., his own) values.
It’s worth remembering that legal education at every level has been dominated by liberalism for decades. The ideological imbalance has grown worse in recent years, particularly at elite law schools. As a result, living constitutionalism remains deeply influential on lawmakers and judges.
Originalism, as promoted by groups like the Federalist Society, has been catching up on the federal level. But it is almost certainly far behind in state judiciaries. For example, courts in conservative states like Montana and South Carolina have invented a right to abortion out of whole cloth after Dobbs.
In the next few years, we will see this fight over constitutional interpretation intensify in the states. The results will hinge on what many would consider an academic debate over legal theories. But, of course, the reality is that lives are at stake.