If the federal right to abortion is erased by the U.S. Supreme Court in a few weeks as expected, the legal spotlight will shift immediately to state courts, where experts say judges in some conservative states could surprise everyone and uphold the right to abortion.
“Hundreds of attorneys for abortion advocates across the country are no doubt poised to go into state courts to block enforcement of multiple state abortion laws the minute the decision comes down,” said Clarke Forsythe, senior counsel at Americans United for Life, which opposes abortion. “There will be attempts in all but a few states to create the equivalent of Roe v. Wade.”
Such challenges can’t happen in Alabama, Louisiana, Tennessee and West Virginia, where lawmakers opposed to abortion rights already have amended the state constitution to clearly say that it does not protect the right to abortion. Kansas will have a similar measure on the ballot in August, and Kentucky in November. A similar proposal is pending in Missouri.
But in all other states, there will be little reason for abortion rights advocates not to file lawsuits in state courts. And in some unlikely places, including Florida, legal experts say previous court decisions indicate some chance of success.
In recent years, the makeup of the Florida Supreme Court has skewed conservative, with three of the seven justices appointed by the state’s current Republican Gov. Ron DeSantis. But in 1989, Florida’s high court struck down a law requiring pregnant girls to get the consent of a parent before getting an abortion, citing the state constitution’s privacy clause.
“Most people have not been thinking about state litigation, but it will become very prominent,” said David Cohen, professor of law at Drexel University. “I think that we’re going to see a lot of lawsuits with outcomes that will surprise everyone.”
Already, courts in two anti-abortion states have ruled in favor of temporarily blocking existing abortion bans.
Last week, the Idaho Supreme Court denied a request from the state’s Republican attorney general to lift a court injunction against a ban on the procedure after six weeks of pregnancy that the legislature passed earlier this year.
And in Michigan, a lower state court granted a preliminary injunction barring enforcement of the state’s dormant 1931 law making it a felony to provide an abortion.
A central underpinning of the leaked court decision overturning Roe is that there’s no explicit right to privacy in the U.S. Constitution.
State constitutions in Alaska, Arizona, California, Florida, Hawaii, Illinois, Louisiana, Montana, New Hampshire, South Carolina and Washington do have explicit privacy provisions, according to the National Conference of State Legislatures. However, legal experts cautioned that there is no guarantee that these state courts would extend that right to cover abortions.
Like the U.S. Constitution, no state constitution specifically confers abortion rights, although Vermont voters will decide in November whether to include such an amendment.
But the Center for Reproductive Rights, which has been active in state and federal abortion litigation for the past three decades, lists Arkansas, Florida, Iowa, Kansas, Massachusetts, Minnesota and Montana as states with implied constitutional abortion rights, based on prior court decisions that found support for abortion rights in the state’s constitution.
Cohen and other legal scholars would include even more states in that list: North Carolina, Ohio and Oklahoma, for example.
Even Mississippi—the state with the 15-week abortion ban currently under review by the U.S. Supreme Court—has a 1998 state Supreme Court ruling that could be interpreted to indicate state constitutional support for abortion rights, according to Forsythe and other legal experts who represent abortion opponents.
Paul Linton, an Illinois attorney who has represented anti-abortion clients in state courts and the U.S. Supreme Court for more than 30 years, said he’s skeptical about abortion rights advocates’ chances of succeeding in most state cases.
Even if they win a case against a state abortion law, he said, they could lose with lawmakers. “If they challenge abortion laws in a conservative state and win the case, they’ve just provided ammunition for the state legislature to amend the constitution to neutralize any implied abortion rights,” he said.
Tennessee in 2014 and West Virginia in 2018 amended their constitutions to remove any implied abortion rights. The Tennessee Constitution, for example, says: “Nothing in this Constitution secures or protects a right to abortion or requires the funding of an abortion."
As of now, existing abortion bans in 26 states are expected to take effect within days of a Supreme Court ruling against Roe v. Wade, if state courts don’t block or overturn them.
Alabama, Arizona, Arkansas, Mississippi, Oklahoma, West Virginia and Wisconsin have dormant pre-Roe laws that would ban most abortions, according to the Guttmacher Institute, which supports abortion rights. Michigan also has a pre-Roe ban that was temporarily blocked from taking effect last week, and Texas has a ban that has been permanently blocked.
Twelve states—Arkansas, Idaho, Kentucky, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah and Wyoming—have more recent abortion bans designed to immediately take effect if Roe is overturned.
On the other side of the issue, 16 states and the District of Columbia have statutes guaranteeing the right to abortion: California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Nevada, New Jersey, New York, Oregon, Rhode Island, Vermont and Washington.
Past is Prologue
In the nearly 50 years since the U.S. Supreme Court established the right to abortion, conservative state lawmakers have been passing restrictions, and advocates have been suing them in federal courts.
Courts have allowed many restrictions, including required waiting periods, parental consent and notification, and costly abortion clinic specifications—such as the width of hallways, complex HVAC systems and down-to-the-inch operating room dimensions—to take effect.
But federal courts routinely have struck down outright bans on the procedure prior to viability, when a fetus is considered able to live outside of the womb.
Dozens of abortion rights battles also were fought in state courts over the decades, but those cases garnered little public attention, said Robert Williams, professor of law emeritus and director of the Center for State Constitutional Studies at Rutgers University-Camden.
That’s about to change.
In a post-Roe world, many people might think it would be pointless to file a lawsuit in say, Oklahoma, to block its strictest-in-the-nation abortion ban, Williams said. “But they would be wrong.”
There’s nothing to stop an abortion rights attorney from asking an Oklahoma Supreme Court judge to establish a right to abortion similar to Roe v. Wade based on the Oklahoma Constitution, he explained.
“We’ve all learned that what the Supreme Court says, goes. But that’s only half right,” Williams said. “When the Supreme Court rules against federal constitutional rights, the states have the sovereign authority to ensure those same rights and more, despite the gravitational pull of the U.S. Supreme Court.”
Over time, courts in some states may decide to disagree with the Supreme Court and set a higher standard of protection for reproductive autonomy, he said.
States have a long history of providing greater protections than the federal government, including many examples in free speech, marriage rights, education equality and criminal justice, he said. “There’s no reason to think that abortion rights will be any different.”