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BY KATE ZERNIKE NEW YORK TIMES
WASHINGTON – 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.
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.
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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 U.S. 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.
The Supreme Court's decision has left abortion rights groups with few other options. In their most hopeful scenario, state courts and ballot initiatives to establish constitutional protections would establish a firmer guarantee for abortion rights than the one in Roe, which rested on a protection of privacy that was not explicit in the U.S. Constitution.
But just as abortion rights groups are trying to identify protections in state constitutions, anti-abortion groups are trying to amend those same documents to say they provide no guarantee of abortion rights.
And while the courts may appear to be the last word because their decisions are not subject to appeal, judges in 38 states have to face the voters.
A change on the bench has sometimes meant that the same document found to include a right to abortion suddenly is declared not to include that right, in the space of a few years.
"You're going to see a lot of give and take in the years to come, in ways that may be unpredictable," said Alicia Bannon, the director of the judiciary program at the Brennan Center for Justice, which maintains a tracker of the cases filed to challenge abortion bans that have been enacted since the Supreme Court overturned Roe.
"I don't think it's a dynamic where a court will issue a ruling, and that's the end of the conversation."
Lawyers working to restore abortion rights promise more litigation as legislatures in conservative states reconvene for the first time since the Supreme Court's decision, vowing to pass stricter bans.
Both sides of the abortion debate will also devote new energy to seat and unseat judges and into efforts to explicitly protect or restrict abortion protections in state constitutions, which are far easier to amend than their federal counterpart.
"The terrain has shifted, and it's not just a matter of we're turning our attention from federal to state courts; it's that we're turning our attention to a whole other range of institutions and opportunities which present their own possibilities but also pitfalls," said JohnDinan, a politics professor at Wake Forest and the author of a forthcoming Montana Law Review article on the role of state courts and constitutions in the future of abortion laws.
During the half-century that Roe protected a federal right to abortion, opponents of abortion rights argued that regulation of the issue should be returned to the states, which could set their own laws according to public opinion.
They have objected to state court decisions finding a constitutional right to abortion, saying that laws should be made by the legislatures, not justices.
Murrell Smith, the Republican speaker of the House in South Carolina, wrote on Twitter that the state court's decision "fails to respect the concept of separation of powers and strips the people of this state from having a say in a decision that was meant to reflect their voices."
But opponents of abortion have tried to turn state constitutions to their advantage as well. Even before Roewas overturned, ballot amendments in Tennessee, Louisiana, West Virginia and Alabama changed those states' constitutions to say that nothing in them protected a right to abortion.
Lawmakers in Montana and Alaska are trying similar amendments.
Some opponents of abortion have argued that the rights to liberty in state constitutions should extend not only to women but also to fetuses. Thomas Fisher, the solicitor general of Indiana, said during oral arguments on the case there earlier this month, "There's a failure to recognize that there is something else on the other side of the equation, and that is the unborn life."
The framers of the Constitution earlier wrote constitutions for the 13 colonies that became the first states. They borrowed heavily from those documents and left states free to add rights to their constitutions that don't exist in the federal one.
Wyoming's constitution, for example, protects the opportunity to hunt, fish and trap;New Jersey's includes a minimum wage that increases annually.
State constitutions are easier to change, through ballot measures proposed by citizens or legislatures (allowed in every state but Delaware). And they have been revised far more often than the federal constitution.
"If you went back to the origins of our nation, federal courts were not irrelevant, but there weren't many cases there," said Margaret Marshall, the former chief justice of the Supreme Judicial Court of Massachusetts. "Everything happened in the states."
The lawsuits now rely on a range of rights – and sometimes multiple rights – in state constitutions, reflecting the differences in these documents, as well as the bets that abortion rights supporters are making about which arguments are likely to succeed.
While 11 state constitutions explicitly mention privacy – the basis of the argument for Roe – only two of those are in states that ban abortion. One is South Carolina, where, earlier this month, a divided court found that the right to privacy extended to a right to abortion.
That decision was a happy surprise to abortion rights groups, not least because the justices, while nonpartisan, were appointed by the Republican-controlled state Legislature.
In the other state with an explicit right to privacy, Arizona, abortion rights groups chose to argue their case instead on a state constitutional right to due process, strategizing that the members of the state's Supreme Court would be unsympathetic to the privacy argument.
Other lawsuits argue that a right to abortion falls under state constitutional protections for liberty, for free exercise of religion or for inherent, natural or fundamental rights – provisions that are included in every state constitution and typically go well beyond what the Bill of Rights established.
Roughly half the state constitutions also have equal rights amendments protecting the rights of women, and several cases that have been filed since Roe was overturned rely on those provisions.
And lawsuits in two states, Wyoming and Ohio, argue for a right to abortion based on constitutional amendments the states' voters passed in protest to President Barack Obama's broad overhaul of health care, protecting citizens' rights to make their own health care decisions.
Most of the cases are awaiting trial. Only the state supreme courts in North Dakota, Kentucky and Indiana have already heard arguments.
Preliminary rulings have given some indication of what arguments might establish a right to abortion, even in conservative states.
In North Dakota, Utah, Wyoming and Indiana, the courts blocked abortion restrictions temporarily, saying that the abortion rights cases had a likelihood of success at trial.
The North Dakota court said the state's nearly total ban most likely violated a constitutional provision establishing "certain inalienable rights," including "those of enjoying and defending life and liberty" because of its burdens on doctors and pregnant women. The Utah court said the lawsuit from the abortion rights groups raised "serious issues" about whether the abortion ban violated a constitutional provision granting rights equally to "both male and female citizens."
The court also noted that it had previously recognized a constitutional right to privacy protecting matters "of no proper concern to others," including "things which might result in shame or humiliation, or merely violate one's pride in keeping private affairs to [one]self." That includes a right to determine "family composition."
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FAQs
What constitutional amendments is abortion? ›
On June 24, 2022, the Supreme Court overturned Roe v. Wade, eliminating the federal Constitutional standard that had protected the right to abortion. Absent any federal standard addressing a right to abortion, states may set their own policies banning or protecting abortion.
How did state constitutions protect rights? ›The states protected the rights of their people by following the rule of law established by their constitutions which were drafted on key principles of self-government, separation of powers, limited government, and protected individual rights.
Is the right to choose in the Constitution? ›The Bill of Rights of the United States Constitution guarantees individuals the right to personal autonomy, which means that a person's decisions regarding his or her personal life are none of the government's business.
What are constitutional rights? ›Constitutional rights are the protections and liberties guaranteed to the people by the U.S. Constitution. Many of these rights are outlined in the Bill of Rights; such as the right to free speech in the First Amendment, and the right to a speedy and public trial in the Sixth Amendment.
What does the 14th Amendment say about abortions? ›No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
How does the 9th Amendment protect abortion? ›The Hyde Amendment, passed in 1976, prohibits government funding for abortions with exceptions for rape, incest, or danger to the woman's life (ACLU, 2004). The right to privacy implicit in the Ninth Amend- ment is alive and well in today's world and has an effect on every life in America.
Can states restrict constitutional rights? ›No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Paul v.
Can state constitutions violate the U.S. Constitution? ›Article VI, Paragraph 2 of the U.S. Constitution is commonly referred to as the Supremacy Clause. It establishes that the federal constitution, and federal law generally, take precedence over state laws, and even state constitutions.
Can a state take away your constitutional rights? ›Each state's constitution also outlines rights for its citizens. If a state constitutional right conflicts with a U.S. Constitutional right, the U.S. right prevails. The state constitutions can add rights, but they can't take away any U.S. Constitutional rights.
What does the Constitution say about who has the right to vote? ›Twenty-Sixth Amendment Section 1: The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on a. . .
Can the Constitution be changed Yes or no? ›
Article V of the Constitution provides two ways to propose amendments to the document. Amendments may be proposed either by the Congress, through a joint resolution passed by a two-thirds vote, or by a convention called by Congress in response to applications from two-thirds of the state legislatures.
Is constitutional right is a supreme right? ›A constitutional right is a supreme right guaranteed by our Constitution. In case of any contradiction with Constitutional Rights, that law will be declared null and void.
What is the difference between constitutional right and legal right? ›The constitutional rights are those which are provided in the various provisions of the constitution. The legal rights, on the other hand, are those which are provided in the various laws (acts) of the Parliament and the State Legislatures.
What rights are not listed in the Constitution? ›The Supreme Court has found that unenumerated rights include such important rights as the right to travel, the right to vote, and the right to keep personal matters private.
What are the 3 constitutional rights? ›It guarantees civil rights and liberties to the individual—like freedom of speech, press, and religion. It sets rules for due process of law and reserves all powers not delegated to the Federal Government to the people or the States.
What does the 14th Amendment have to do with women's rights? ›The Fourteenth Amendment affirmed the new rights of freed women and men in 1868. The law stated that everyone born in the United States, including former slaves, was an American citizen. No state could pass a law that took away their rights to “life, liberty, or property.”
Is a fetus protected by the 14th Amendment? ›The Rhode Island Supreme Court upheld that law in its May 2022 decision, relying in part on Roe v. Wade, to find that fetuses are not entitled to protection under the 14th Amendment and that they were not “persons” who could bring legal claims. With the Supreme Court's Dobbs decision overturning Roe v.
What does Roe vs Wade actually say? ›Roe v. Wade, 410 U.S. 113 (1973), was a landmark decision of the U.S. Supreme Court in which the Court ruled that the Constitution of the United States conferred the right to choose to have an abortion.
Does the Constitution protect reproductive rights? ›The U.S. Constitution requires the government to respect—and courts to protect—the human right to reproductive autonomy.
Why is the 9th Amendment ignored? ›Historically, the courts have mostly ignored the Ninth Amendment, only citing it as a way to read the Constitution rather than an explicit right. However, Griswold v. Connecticut opened up the possibility of using the Amendment to expand the rights of the people beyond what the Constitution lists.
What does the 9th amendment mean in simple words? ›
The Ninth Amendment was part of the Bill of Rights that was added to the Constitution on December 15, 1791. It says that all the rights not listed in the Constitution belong to the people, not the government. In other words, the rights of the people are not limited to just the rights listed in the Constitution.
What are 3 examples of limits that the Constitution puts on state powers? ›Article I, Section 10 of the Constitution of the United States puts limits on the powers of the states. States cannot form alliances with foreign governments, declare war, coin money, or impose duties on imports or exports.
What powers are the States denied by the Constitution? ›No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title ...
When can the government take away your rights? ›The government cannot take away your life, liberty, or property without following the law. 15. The government cannot take your private property from you for public use unless it pays to you what your property is worth.
What happens if a state law violates the Constitution? ›State laws can be struck down by the U.S. Supreme Court if the court feels that those laws are unconstitutional. This is because Article IV Clause II of the U.S. Constitution, as well as the 14th Amendment, make federal law the supreme law of the land.
What happens when a state law contradicts the Constitution? ›When state law and federal law conflict, federal law displaces, or preempts, state law, due to the Supremacy Clause of the Constitution. U.S. Const. art. VI., § 2.
What if a federal law violates a state constitution? ›The U.S. Constitution declares that federal law is “the supreme law of the land.” As a result, when a federal law conflicts with a state or local law, the federal law will supersede the other law or laws.
What did the founding fathers say about voting? ›Allow the right [to vote] exclusively to property [owners], and the rights of persons may be oppressed... . Extend it equally to all, and the rights of property [owners] ... may be overruled by a majority without property.... Eventually, the framers of the Constitution left details of voting to the states.
What is No 1 constitutional Amendment? ›The First Amendment provides that Congress make no law respecting an establishment of religion or prohibiting its free exercise. It protects freedom of speech, the press, assembly, and the right to petition the Government for a redress of grievances.
What are two rights of everyone living in the United States? ›Every human being has the right to life, liberty and the security of his person. Right to life, liberty and personal security. Article II. All persons are equal before the law and have the rights and duties established in this Declaration, without distinction as to race, sex, language, creed or any other factor.
Can the Supreme Court overturn a constitutional amendment? ›
The United States Supreme Court has never invalidated a constitutional amendment on the grounds that it was outside the amending power. It has, however, considered the content of an amendment as presenting a justiciable question.
How many times has the Constitution been changed? ›More than 11,000 amendments to the Constitution of the United States have been proposed, but only 27 have been ratified. The first 10 amendments, known as the Bill of Rights, were ratified in 1791.
When was the last amendment to the U.S. Constitution? ›With no time limit on ratification, the Twenty-seventh Amendment was ratified in May 7, 1992, when Michigan approved it.
What are the 5 constitutional rights? ›The five freedoms it protects: speech, religion, press, assembly, and the right to petition the government. Together, these five guaranteed freedoms make the people of the United States of America the freest in the world.
What legal actions can you take if your constitutional right is violated? ›When your constitutional rights are breached during the criminal justice process, and the breach contributes to a guilty conviction, you can pursue an appeal based on an error in the criminal procedure or jury misconduct, or file a motion for a new trial.
What are the 10 constitutional rights? ›| 1 | Freedom of religion, speech, press, assembly, and petition. |
|---|---|
| 7 | Right of trial by jury in civil cases. |
| 8 | Freedom from excessive bail, cruel and unusual punishments. |
| 9 | Other rights of the people. |
| 10 | Powers reserved to the states. |
The 13th Amendment abolished slavery. The 14th Amendment gave citizenship to all people born in the US. The 15th Amendment gave Black Americans the right to vote.
What are the 13th 14th and 15th amendments considered? ›The 13th, 14th, and 15th Amendments to the Constitution, sometimes known as the Reconstruction Amendments, were critical to providing African Americans with the rights and protections of citizenship. The 13th Amendment formally abolished slavery.
What are the 9th and 14th Amendment? ›The 14th Amendment provides, in part, that no state can "deny to any person within its jurisdiction the equal protection of the laws." Title IX specifically prohibits sex discrimination.
How does the 14th Amendment apply to a woman's right to privacy? ›Wade (1973), the Supreme Court held that the Fourteenth Amendment's Due Process Clause “protects against state action the right to privacy, including a woman's qualified right to terminate her pregnancy,” and that “though the State cannot override that right, it has legitimate interests in protecting both the pregnant ...
Does the 14th Amendment protect women's rights? ›
The Fourteenth Amendment affirmed the new rights of freed women and men in 1868. The law stated that everyone born in the United States, including former slaves, was an American citizen. No state could pass a law that took away their rights to “life, liberty, or property.”
What does the Constitution say about women's rights? ›Passed by Congress June 4, 1919, and ratified on August 18, 1920, the 19th amendment granted women the right to vote. The 19th amendment legally guarantees American women the right to vote. Achieving this milestone required a lengthy and difficult struggle—victory took decades of agitation and protest.
Why did the 14th Amendment fail? ›Due to judicial and executive inaction, the amendment was not interpreted as anything more than a reiteration of the Thirteenth Amendment's declaration of emancipation for slaves, and it did not guarantee African Americans any civil rights as citizens of the United States.
What is the 24th Amendment say? ›The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or ...
What did the 17th Amendment allow? ›Seventeenth Amendment: The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote.