Kansas was just the beginning: Abortion-rights activists turn to states — and they're winning

A surprising twist on states' rights: After Dobbs, pro-choice advocates look to state courts — and it's working

Published August 23, 2022 6:00AM (EDT)

Abortion rights advocates demonstrate in front of the Supreme Court of the United States in Washington, DC, United States on December 01, 2021. (Yasin Ozturk/Anadolu Agency via Getty Images)
Abortion rights advocates demonstrate in front of the Supreme Court of the United States in Washington, DC, United States on December 01, 2021. (Yasin Ozturk/Anadolu Agency via Getty Images)

In a surprising development last week, the South Carolina Supreme Court stopped the state from enforcing a law banning abortion after the sixth week of pregnancy. That law was enacted in 2021 in the run-up to the U.S. Supreme Court's Dobbs decision which overturned Roe v. Wade. Proponents of the law expected that in a post-Roe world it would end abortion in South Carolina.

But the 2021 law mysteriously included a provision that its enactment "must not be construed to repeal, by implication or otherwise, Section 44-41-20 [(the codification of Roe)] or any otherwise applicable provision of South Carolina law regulating or restricting abortion."  

So litigation was brought by Planned Parenthood in South Carolina to enforce that provision. In granting the injunction, the court recognized what it called a "conflict in the law" and questioned "the constitutionality of the Act under our state's constitutional prohibition against unreasonable invasions of privacy."

No one would ever mistake South Carolina — one of the most conservative states in the nation — for a hotbed of support for reproductive rights. But the court's decision is a reminder that state constitutions, even in bright red states, often afford protections and freedoms that go well beyond what the federal Bill of Rights provides.

Although no state constitution contains an explicit guarantee of reproductive freedom, all over the country, defenders of reproductive rights are carrying on their fight at the state level, often by reference to state constitutional protections of privacy, autonomy and dignity. 

For example, the National Conference of State Legislatures notes that constitutions in Alaska, Arizona, California, Florida, Hawaii, Illinois, Louisiana, Montana, New Hampshire, South Carolina and Washington contain specific provisions relating to a right to privacy, a word that does not appear  in the U.S. Constitution or Bill of Rights.

Alaska's constitution, for example, declares that "The right of the people to privacy is recognized and shall not be infringed." Section 23 of Florida's constitution says that "Every natural person has the right to be let alone and free from governmental intrusion into the person's private life except as otherwise provided herein." 

Montana's constitution includes this expansive provision: "The right of individual privacy is essential to the well-being of a free society."

The Supreme Court's Dobbs decision unquestionably changed the legal landscape at the national level. It returned the abortion issue to the states, with Justice Samuel Alito arguing that the people in each state should decide what he described as a deeply divisive "moral" issue. What Alito didn't discuss was how those decisions would fare in light of the rights recognized by state constitutions.

For the foreseeable future, the battle to protect reproductive freedom is going to be carried out with reference to those rights. 

Progressives have historically taken a jaundiced view of federalism and states' rights, but now hope to turn them to their advantage. They are winning significant victories.

The Center for Reproductive Rights notes that before the Supreme Court overruled Roe, "the high courts in 10 states recognized that their state constitutions protected abortion rights independently from and more strongly than the federal constitution or had struck down restrictions that the U.S. Supreme Court upheld even under Roe…."

It is no wonder, therefore, that progressives, who historically have taken a jaundiced view of federalism and states' rights, now hope to use them to their advantage.  

As in South Carolina, they are winning some significant victories.

Last Friday, a Michigan judge enjoined county prosecutors from enforcing the state's 1931 ban on abortion. 

Earlier this month, abortion-rights defenders made headlines with an overwhelming victory in a Kansas referendum, as voters soundly rejected a proposed amendment to the state constitution that would have allowed the legislature to ban abortion. 

Want a daily wrap-up of all the news and commentary Salon has to offer? Subscribe to our morning newsletter, Crash Course.

In the aftermath of that vote, the New York Times reported that "The Kansas vote implies that around 65 percent of voters nationwide would reject a similar initiative to roll back abortion rights, including in more than 40 of the 50 states."

The proposed amendment was a response to a little noticed 2019 ruling by the Kansas Supreme Court, which found that the state's constitution protects the right to an abortion. 

That ruling is instructive about the role that state constitutions will play in the ongoing battle over abortion.

The case was brought by two abortion providers who challenged a 2015 state law that prohibited dilation and evacuation, an abortion procedure frequently used in the second trimester of pregnancy.

The Kansas court said that Section 1 of the Kansas Constitution Bill of Rights "acknowledges rights that are distinct from and broader than the United States Constitution and that our framers intended these rights to be judicially protected against governmental action that does not meet constitutional standards."

That provision states that "[a]ll men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness." 

"Among the rights," the court said, "is the right of personal autonomy," which it called "fundamental." That right, it went on to say "allows a woman to make her own decisions regarding her body, health, family formation, and family life — decisions that can include whether to continue a pregnancy."

Since the Dobbs decision, abortion rights organizations have filed lawsuits  claiming to find a right to reproductive freedom under state constitutions across the country, including in Utah, Kentucky, Idaho and Mississippi.

Reminding us of the intricacies of America's federal system, NPR observes that those lawsuits are "not identical. Each appeals to specific lines of legal theory unique to each state, citing different state provisions and different case histories to support their arguments."

The Idaho litigation alleges that banning abortion "violates the Idaho Constitution's guarantee of the fundamental right to privacy in making intimate familial decisions." The Kentucky litigation contends that an abortion ban violates "Sections One and Two of the Commonwealth's Constitution" by infringing on women's rights to "privacy and self-determination."

Federalism is not necessarily a good in and of itself, and it is certainly no substitute for a robust, nationwide guarantee of women's bodily integrity and reproductive rights. But in the wake of the Supreme Court's attack on those rights, state constitutions may provide the grounds for protecting them.  

In 2020, Gurbir S. Grewal, the attorney general of New Jersey, and Jeremy Feigenbaum, the state's solicitor, urged progressives to "take a page from our conservative friends and forge a new form of progressive federalism." The ongoing litigation of pro-choice groups is a prime example of that effort.

More than four decades ago, at the dawn of an earlier era of conservative judicial activism on the Supreme Court, Justice William Brennan aptly described the stakes in this strategy when he wrote that "The legal revolution which has brought federal law to the fore must not be allowed to inhibit the independent protective force of state law — for without it, the full realization of our liberties cannot be guaranteed."

By Austin Sarat

Austin Sarat is William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. His most recent book is "Lethal Injection and the False Promise of Humane Execution." His opinion articles have appeared in USA Today, Slate, the Guardian, the Washington Post and elsewhere.

MORE FROM Austin Sarat