In response to Dobbs, abortion-rights activists turn to state constitutions

On June 24, the conservative majority on the U.S. Supreme Court ruled that it couldn’t find protections in the federal Constitution of a woman’s right to abortion and in the process it overturned nearly a half-century of decided law.

Now abortion-rights activists are turning to state courts and arguing that those protections exist in state constitutions. At least temporarily, they’re having some success.

Courts in Ohio, Indiana, South Carolina and North Dakota have in the past two months temporarily blocked enforcement of partial or near-total abortion bans in those states while lawsuits over their constitutionality proceed. 

Meanwhile restrictive laws in Florida, Georgia, Mississippi and Louisiana are being enforced as suits against them brought on state constitutional grounds proceed, the Center for Reproductive Rights reported.

One irony is that the suits are using the same federalist principle that the U.S. Supreme Court used to deny that abortion is a federally protected right.

Writing for the majority in Dobbs v Jackson Women’s Health Organization, Justice Samuel Alito said that the U.S. Constitution owed women no greater protections that it did their unborn fetuses, no matter how undeveloped they are. Instead, he wrote, it’s up to the states to balance those respective rights.

“Abortion presents a profound moral question,” he wrote. “The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion.”

However, when Ohio’s 2019 abortion law suddenly took effect on June 24, some compelling interests to which Alito paid only scant attention were profoundly and quickly affected.

Three pregnant minors — one just 10 years old — were denied abortions even though they had been raped, according to sworn affidavits in the Ohio suit and other information. 

Other women with serious health conditions such as tubal pregnancies and cancer were denied abortions despite provisions in the Ohio law that are supposed to protect their health. And still others were forced to carry pregnancies that can’t be successful despite the emotional toll that would exact and the fact that simply being pregnant is far more dangerous than not being pregnant.

Those stories and others prompted Ohio abortion providers to sue, arguing that the Ohio law violates provisions in the Ohio Constitution protecting life, liberty and property as well as ensuring that “every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law.”

The real-world effects observed during the 11 weeks the Ohio law was enforced show that it “discriminates against women, a suspect class, by expressly singling out ‘pregnant women’ in Ohio, and restricting their bodily autonomy and healthcare choices,” the Ohio suit says. “S.B. 23 also discriminates against women by subordinating them to men based on antiquated notions and stereotypes regarding women’s roles as child-bearers and caregivers.”

Somewhat similarly, the lawsuit by Indiana abortion providers says there doesn’t need to be an express right to an abortion. It’s protected in the section of that state’s Constitution that says “…all people are created equal; that they are endowed by their CREATOR with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness…”

It would seem, then, that abortion-rights groups are hoping that courts in their states will find rights in those constitutions that a 6-3 majority of the U.S. Supreme Court controversially did not find in the U.S. Constitution. And those questions are likely to go up to state supreme courts before they’re decided.

An Ohio justice might have waded into those waters earlier this month when he addressed law students at Ohio Northern University. 

Justice Pat DeWine said that since the Civil War, state supreme courts have been too deferential to the U.S. Constitution. He then highlighted that due-process guarantees under the 14th Amendment are different from those in the Ohio Constitution.

A spokesman clarified that DeWine was not saying state courts could take away rights guaranteed in the U.S. Constitution; they could only add to them.

But it seems unlikely that DeWine would view the Ohio Constitution as protecting abortion rights. His father, Gov. Mike DeWine, signed the state’s abortion restrictions into law and Pat DeWine’s spokesman said the Ohio protections were more limited than those in the 14th Amendment.

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