State Constitutions as the Next Battleground for Abortion Rights

Kate Zernike, A Volatile Tool Emerges in the Abortion Battle: State Constitutions? NYT

When the Supreme Court overturned Roe v. Wade and the constitutional right to abortion in June, it declared that it was sending the issue back to the “people and their elected representatives.” But the fight has largely moved to a different set of supreme courts and constitutions: those in the states.

On a single day this month, South Carolina’s highest court handed down its ruling that the right to privacy in the State Constitution includes a right to abortion, a decision that overturned the state’s six-week abortion ban. Within hours, Idaho’s highest court ruled in the opposite direction, saying that state’s Constitution did not protect abortion rights; the ban there would stand.

Those divergent decisions displayed how volatile and patchwork the fight over abortion rights will be over the next months, as abortion rights advocates and opponents push and pull over state constitutions.

For abortion rights groups, state constitutions are a critical part of a strategy to overturn bans that have cut off access to abortion in a wide swath of the country. Those documents provide much longer and more generous enumerations of rights than the United States Constitution, and history is full of examples of state courts using them to lead the way to establish broad rights — as well as to strike down restrictions on abortion. They offer a way around gerrymandered state legislatures that are pushing stricter laws.