Now, under 50 different state constitutions, state courts from Oregon to Georgia will decide who, if anybody, is eligible for an abortion

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On June 24, the U.S. Supreme Court decided that there is no constitutional right to an abortion in Dobbs v. Jackson Women’s Health Organization

Since the Supreme Court overruled Roe v. Wade and Planned Parenthood v. Casey, state laws will now control whether or not someone may lawfully receive an abortion rather than federal law. Additionally, it implies that state Supreme Courts will have a far larger role in determining the legality of abortion-related state laws.

On June 24, the U.S. Supreme Court decided that there is no constitutional right to an abortion in Dobbs v. Jackson Women’s Health Organization.

The majority decision was written by Justice Samuel Alito and said that “the Constitution does not grant a right to abortion; Roe and Casey are overturned; and the authority to control abortion is restored to the people and their elected representatives.”

State legislatures will be free to create their own abortion legislation without the Roe v. Wade precedent’s federal restrictions, limited solely by each state’s constitution.

State supreme courts are important in ensuring that state laws are valid and in accordance with each state’s constitution. However, the public’s focus on the U.S. Supreme Court and other important federal courts frequently overshadows their important function.

As a constitutional law expert, I think that the decision to overturn Roe v. Wade offers an opportunity to learn more about the crucial role state supreme courts play in deciding individual rights, including the right to an abortion.

Since the Supreme Court reversed Roe v. Wade, there will probably be a flurry of lawsuits in state courts challenging those states’ abortion regulations.

The influence of state supreme courts

Samuel Alito’s draft ruling on abortion, which was leaked in May 2022, brought state legislation restricting or outlawing abortion to the public’s attention.

Although abortion rights will now be decided at the state level, not in statehouses, but in state courts, the laser emphasis on state legislation ignores this fact. This is so that state legislation that violate state constitutions may be declared unconstitutional by state courts.

“Abortion raises serious ethical issues. The residents of each State are free to regulate or forbid abortion, as long as they comply with the Constitution. Roe and Casey abused their power. The Court reverses those rulings and transfers the relevant power back to the populace and their elected officials, Alito said in the June 24 judgment.

Depending on the state, there are several selection processes for judges of the state supreme court. In contrast to states like Georgia, Nevada, and Oregon where justices are directly elected by citizens, governors pick state supreme court judges in places like Maine and Massachusetts. With the exception of their anticipated retirement at age 70, these judges can be appointed for terms of six years or no fixed term at all.

According to my own research, state judges who are elected have a tendency to find state legislation unlawful more frequently than state judges who are appointed. However, elected court judges must account to their constituents when it comes to abortion. As a result, conservative states may be less willing to overturn stringent abortion restrictions in accordance with their state constitutions.

Variation in protection

State constitutions vary considerably in how they protect people’s individual rights, like freedom of speech or the right to privacy. One element of privacy rights is the right to get an abortion – as the Supreme Court inferred when it upheld abortion in 1973 and linked the two issues.

Often, state constitutions protect individual rights that are not included in the federal constitution. Privacy rights, for example, are not mentioned in the U.S. Constitution but are spelled out in a number of state constitutions.

Many state courts can look to state constitutions that more explicitly reference privacy or that include other provisions that protect rights in ways not paralleled in the U.S. Constitution.

At present, only 10 state supreme courts, including those in Massachusetts, Kansas and California, have determined that their constitutions protect the right to get an abortion. But it is likely that this issue will be presented to more state supreme courts following the demise of Roe.

State abortion laws

Some state supreme court decisions protecting a right to abortion have generated backlash. In 2019, for example, the Kansas Supreme Court ruled that a person’s decision to end a pregnancy is legally protected under the state constitution.

Currently, pro-abortion groups are working to overturn this ruling and modify the constitution in order to introduce further restrictions on abortion. In August 2022, Kansas citizens will vote on this question.

Similar constitutional amendments were approved by the legislatures of Tennessee and West Virginia in 2014 and 2018, respectively, to overturn earlier rulings by state courts that preserved the right to an abortion.

Roe’s downfall would increase pressure to pass new state constitutional amendments that would render abortion-related rulings by state courts illegitimate.

The way forward

There will also be more pressure on state supreme courts.

The Iowa state supreme court, for example, reversed its own 2018 ruling on June 17, 2022, deciding that the state constitution does not protect abortion rights.

The new state law prohibiting abortions after 14 weeks of pregnancy is currently being debated by Florida’s state supreme court.

State and federal constitutions “provide shockingly diverse solutions” to many matters affecting individual rights, including abortion, according to U.S. Appeals Court Judge Jeffrey Sutton.

After Roe is overturned, reproductive rights will be shaped by state legislation and litigation.
Stefanie Lindquist is an Arizona State University Foundation Professor of Law and Political Science.

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