State Constitutions Are the New Abortion Rights Battleground

South Carolina’s second attempt at a six-week abortion ban is headed to the state’s Supreme Court, in a legal challenge that hinges on the scope of a right to privacy enshrined in the state constitution. 

On Friday, a state circuit judge blocked the law – signed Wednesday by Gov. Henry McMaster – from taking effect before South Carolina’s highest court hears a challenge from Planned Parenthood South Atlantic. The latest legal tussle comes after the state supreme court struck down Republicans’ first try at a six-week ban in a 3-2 ruling in January. 

Across the country, state constitutions have emerged as a locus for the reinvigorated abortion battles over abortion rights since the Supreme Court struck down Roe v. Wade last year. Abortion supporters and opponents alike have begun exploring the legal power of these documents, which often include rights beyond those laid out in the federal constitution. 

The past year has seen a flurry of action on this front: 

“I think it's a waiting game to see how states are actually going about this, what it means to have this right [to abortion], and how long term any of this is,” said Quinn Yeargain, a law professor at Widener University. “It’s something that will play out over the next five, ten or twenty years.”

Thrust into the spotlight

State constitutions played a prominent but underappreciated role in shaping abortion access for decades. Alaska, for instance, amended its constitution in 1972, a year before the Roe ruling, to establish a right to privacy, including in medical decisions. Over the subsequent decades, the state’s Supreme Court has repeatedly said that language protects abortion access. 

Since the Supreme Court overturned Roe, a new wave of states have amended their constitutions to include explicit rights to abortion or reproductive freedom, a process that is much easier in most states than at the federal level. Meanwhile, voters in Kansas and Kentucky rejected proposed amendments to restrict abortion access in their states. 

In the wake of that success, abortion rights groups and lawmakers are pushing to get similar amendments on the ballot in an even larger number of states through the 2024 election cycle.  They include states like New York and Maryland that already have broad access to abortion, as well as states like Ohio, Florida and Missouri where the procedure is highly restricted or banned.

In Ohio, where recent polling suggests that just under 60 percent of people support abortion, the procedure is illegal after the sixth week of pregnancy. Amid a drive to get a pro-abortion rights amendment on the 2024 ballot, Republicans in the state legislature are pushing a resolution that would require 60 percent support, rather than a simple majority, for a constitutional amendment to take effect. 

A matter of interpretation

But even when state constitutions don’t spell out a right to abortion, “some state courts have interpreted state constitutional provisions as requiring greater protection for abortion rights than was guaranteed by the U.S. Supreme Court,” said John Dinan, a political scientist at Wake Forest University. Courts have pointed to rights to privacy, personal autonomy and equality as the basis of those protections, often in response to litigation over efforts to restrict abortion in the states. 

In the mid-1990s, Minnesota’s Supreme Court concluded that the right to privacy in the state’s constitution extended to abortion after hearing a suit challenging inequities in state funding for abortions. In 2019, the Kansas Supreme Court ruled that the state constitution protects abortion as a natural right and struck down laws that banned common abortion procedures.

“The actual scope of what’s protected [by these rulings] isn’t clear,” said Yeargain, since many were made against the backstop of Roe v. Wade. With a national right to abortion based on the federal constitution, there was less litigation at the state level, so not as much legal doctrine was developed spelling out specifics beyond asserting a right to abortion, he said, leaving the level of protection unresolved.  

“In Oklahoma, for instance, there is some right to abortion where the mother's life is at risk, but it's unclear what the parameters of that are,” he said. 

Earlier this year, North Dakota’s Supreme Court said the state’s constitution protects abortion rights when the life of the pregnant person is threatened. But it remains unclear what impact that ruling will have on the near-total ban that passed in April, which allows abortions to treat medical emergencies.

Efforts to restrict

Going forward, abortion-rights supporters will likely continue to file lawsuits in states with restrictions, especially where state constitutions reference rights to privacy or autonomy, hoping to develop a fuller precedent of what is and isn’t protected under the state constitution. 

“Instead of using the legislative process, they're trying to undermine the laws and the constitutions of those states,” said Stephen Bill, vice president of state affairs at Susan B. Anthony Pro-Life America, an anti-abortion group. 

But abortion rights opponents have also sought to leverage state constitutions to restrict abortion access. One way to do that is through constitutional amendments that constrain state courts’ ability to issue rulings protecting abortion rights. Such amendments are often proposed in response to rulings that find some protections for abortion in state constitutions, said Dinan. 

For instance, both Tennessee and West Virginia amended their state constitutions to explicitly deny that any protections for abortion existed in the document, in response to rulings that found such protections.

While amendments seeking to explicitly prohibit abortion failed last year in Kansas and Kentucky, similar efforts are likely coming in other states.

And in some states, efforts by abortion rights supporters to establish a right to abortion under the states’ constitution have simply failed. Earlier this year, Idaho’s Supreme Court justices found no such right existed in their constitution, allowing strict bans to remain in place.

Subject to change

One major X factor in the fights over interpreting state constitutions’ implications for abortion is the makeup of state supreme courts. 

They often have more turnover than federal courts, increasing the odds that any given ruling might be reversed. Iowa’s Supreme Court found a right to abortion in the state constitution in 2018, only to reverse itself four years later after four new justices, appointed by Republican Gov. Kim Reynolds, joined the court.

And South Carolina Republicans’ second attempt at a six-week abortion ban came after Justice Kaye Hearn, who wrote the majority opinion blocking the first law, retired. South Carolina now has the only all-male supreme court in the nation. 

While Republican lawmakers say the new bill was written around the earlier ruling, some observers suspect abortion opponents are banking on a friendlier interpretation of the state’s constitution this time around.

The flurry of abortion-related litigation, ballot initiatives and elections playing out across the U.S. make long-term predictions difficult.

“I wouldn't be surprised if what you see in the long run is more reliably liberal courts in liberal states and more reliably conservative courts in conservative states,” said Yeargain. “Maybe all of these idiosyncratic decisions are going to go by the wayside because we are an increasingly polarized country, and we're probably not going to have a renegade court in a state that's maybe a little bit out of step with how it votes normally.”