A Roe by many other names
Regardless of how the U.S. Supreme Court rules in this summer’s big abortion case, pro-life efforts in several states will be stunted by state-level court rulings that declared an implicit right to abortion in the state constitutions
ON A CHILLY and overcast Saturday morning in April, two young men and a blonde woman with a GoPro strapped on over her puffy black coat stood on the sidewalk by a busy five-way intersection in Grand Rapids, Mich. Next to them, a large A-frame sign displayed a picture of a bloody and mangled aborted baby to the surrounding businesses and restaurants. Over the swishing of passing cars and squealing of brakes, a woman shouted from a vehicle, “Shame on you! My body, my choice!”
Kayla Pomper, the blonde with the GoPro, is a 25-year-old wife and mom of two. She has been doing these twice-a-month volunteer “outreaches” with the pro-life group Protect Life Michigan for a little more than a year. The idea is to start conversations about abortion with people on the street in hopes of helping them understand why abortion is wrong.
Compared to downtown Grand Rapids, where that kind of angry opposition is more common, she said people she meets in Eastown tend to be more apathetic about abortion: personally pro-life but not wanting to intrude on a woman’s decision. With people like that, she’s been trying to bring up a new talking point lately: the pro-abortion efforts to add an “abortion right” to the state constitution. “It does seem to change people’s hearts,” said Pomper. “And they realize the extremes that our state is starting to go to to make [abortion] legal.”
One possible way this could happen is through an amendment: Pro-abortion groups have until July to collect enough signatures to get an abortion rights amendment on the November ballot. Another common avenue in other states is through a court ruling. Recent lawsuits over a dormant Michigan pro-life law prod the majority pro-abortion state Supreme Court to read that “abortion right” into the existing language of the constitution. Either avenue could open the door to even late-term abortions—currently illegal in Michigan.
Efforts like that have Pomper more concerned than excited about the future of the unborn in her state following the expected release of the U.S. Supreme Court decision in the abortion case of Dobbs v. Jackson Women’s Health Organization. A leaked draft of a majority opinion suggests the court may overturn the 1973 Roe v. Wade decision that legalized abortion nationwide. If that ruling stands, it could allow pro-life laws currently unenforceable under Roe to take effect. Pro-lifers in Michigan hoped their state’s 1931 law banning abortion except to save a mother’s life would be one of those. But on May 17 the judge in a case brought by Planned Parenthood temporarily ruled to prevent its future enforcement, bringing the state one step closer to a court-invented right to abortion.
In some states, the possibility pro-lifers face in Michigan has already become a reality. Since Roe, a number of state Supreme Courts have issued rulings declaring abortion rights to be implicit in the language of state constitutions—basically state-level versions of Roe v. Wade. Even in majority pro-life states, such court opinions have stunted pro-life efforts for years and will continue to shield abortion access against legislative attempts regardless of the ruling in the Dobbs case. While pro-life activists work to reverse the effects of those existing rulings, pro-lifers in other states are watching cases unfold that could lead to similar state-level versions of Roe and are doing what they can to fight back.
A FEW HUNDRED PRO-LIFERS left a rally in the Montana State Capitol building for the 2022 annual state March for Life on a sunny January day in snow-covered Helena. Instead of marching around the capitol as they would in a normal year, the gathered pro-lifers carrying signs walked to the state Supreme Court building. There, they stood by the front steps as Jeff Laszloffy, president of the Montana Family Foundation, explained why they were deviating from their normal route: The Montana courts have been preventing enforcement of pro-life laws passed by the legislature, and pro-life Montanans want that to stop.
“We know that if we win Dobbs and Roe v. Wade is overturned, then it kicks the issue back to the states, and that means that Montana is going to have to come up with a mechanism to be able to outlaw abortion in the state that actually sticks,” Laszloffy said later. “We went over to the [state] court … to put the court on notice: We understand that Dobbs could go our way.”
The same month as the Helena march, the Montana attorney general filed a brief asking the Montana Supreme Court to allow the state to enforce three 2021 pro-life laws held up by court order and to overturn Armstrong v. State, a state Supreme Court ruling that in 1999 read a right to abortion into the state constitution.
At issue in Armstrong was a law prohibiting physician assistants from performing abortions. The doctors, physician assistants, and abortion facility that filed the lawsuit claimed the law violated the Montana Constitution’s right to privacy, and the state Supreme Court agreed. In the years since, Laszloffy has seen the effects of that 1999 decision on pro-life legislation: “Armstrong is always the hinge point that gets our legislation defeated.”
John Stemberger, president of the pro-life Florida Family Policy Council, told a similar story of a 1989 case in his state known as In re T.W. In the decision, the Florida Supreme Court ruled that a 1988 law requiring minors to get parental consent before obtaining an abortion violated the right to privacy that the people of Florida had voted to add to the state constitution in 1980. “We’ve been living with that since 1989,” Stemberger said.
A similar ruling came to pro-lifers in Iowa almost two decades later. In 2018, a decision from the Iowa Supreme Court in the case of a 72-hour waiting period law took Pulse Life Advocates Executive Director Maggie DeWitte by surprise. She didn’t realize until a meeting with pro-life attorneys later that summer what exactly it meant. “[They] basically said, ‘What just happened for you is your Roe v. Wade here in Iowa,’” remembered DeWitte. The next year, the courts used the precedent to strike down Iowa’s 2018 heartbeat bill.
Pro-lifer Brittany Jones had been a lobbyist in Kansas for only four months when the 2019 decision in Hodes & Nauser v. Schmidt came down in April. At issue in that case was a 2015 law protecting unborn babies from a common form of second-trimester abortions known as dilation-and-evacuation or dismemberment abortion. The justices ruled that the law was unconstitutional.
According to the court opinion, Section 1 of the Kansas Constitution Bill of Rights, which states “All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness,” guarantees women the right to decide whether or not to continue their pregnancies. The ruling invalidated any state effort to regulate abortion, even late-term abortions.
“Quite frankly, it made me cry,” said Jones, now the director of policy and engagement for the Kansas Family Voice. “Really, we haven’t been able to pass any or even introduce any pro-life legislation because we know that it will be struck down,” said Jones. And because of that ruling, she said, the outcome of the Dobbs decision won’t really affect Kansas, even though the state has a majority pro-life legislature and Jones said she sees pro-life momentum among voters.
According to a count by Americans United for Life, these are only four of the nine or 10 similar rulings from state Supreme Courts, mostly in the 1980s and 1990s, that continue to block pro-life efforts. Pro-lifers in Pennsylvania expect they’ll be next in line.
The law in question there is the state’s 1989 Abortion Control Act, the legislation behind the U.S. Supreme Court’s 1992 Planned Parenthood v. Casey decision. The act set up a number of abortion restrictions, including a stipulation that Medicaid funds can only be used for abortions in cases of rape, incest, or threat to the life of the mother. In Allegheny Reproductive Health Center v. Pennsylvania Department of Human Services, the abortion facilities acting as plaintiffs argue that abortion law in Pennsylvania violates the Equal Rights Amendment and equal protection standards because only women can get pregnant and because abortion restrictions unfairly punish low-income women.
“This is their golden goose strategy,” said Jeremy Samek, senior counsel for the Pennsylvania Family Institute in Harrisburg, Pa. The group filed a friend-of-the-court brief in the Allegheny case. “They’re asking not just for the court to invent the right to taxpayer funding of abortion. They’re also asking for the court to invent a right to abortion in our state constitution.”
Based on the liberal leanings of the court, pro-lifers in Pennsylvania expect the justices will side with the abortion providers in the case. The state Supreme Court has not yet scheduled oral arguments—likely holding out until a decision comes down in Dobbs. But Pennsylvania pro-life groups are working on a long-term solution: Senate Bill 956, colloquially known as the Life Amendment, which simply states that there is no right to abortion or to funding of abortions. One of the bill’s sponsors, Sen. Judy Ward, emphasized that the amendment wouldn’t introduce any new protections for unborn babies: It would only preserve the status quo. That could boost its chances of bipartisan success.
The legislature, currently led by Republicans, has to pass the bill within two consecutive sessions and could be before voters as early as 2023. Using this avenue, the legislature would be able to bypass Democrat Gov. Tom Wolf’s likely veto. A House supporter of the amendment, Rep. Paul Schemel, called the amendment “an antidote to vetoes and inventing constitutional rights.”
In Florida, the pro-life legislature has been passing laws in hopes of attracting lawsuits that could make it to the now-conservative state Supreme Court, which would then likely uphold the pro-life laws and overturn that 1989 decision. But Stemberger at the Florida Family Policy Council observed that pro-abortion groups have been slow to litigate pro-life laws recently—including a law protecting unborn babies after 15 weeks that Gov. Ron DeSantis signed in April. Abortion groups have threatened to sue over that law but haven’t so far. Stemberger is skeptical that they ever will, since they can also count justices and recognize the case could topple the 1989 decision.
In Montana, Laszloffy said pro-lifers there want to put their state courts on the record supporting the abortion agenda, since Montanans elect their judges and justices. Even though he doesn’t expect the court to heed the solicitor general’s calls to overturn Armstrong, whatever they do decide can help pro-life voters know which judges foil pro-life laws.
Iowa is waiting on its remade Supreme Court to rule in the case of a 24-hour waiting period law from 2020 that has potential to overturn the 2018 precedent in the 72-hour waiting period case. DeWitte said her group expects a ruling in June, the same month as the expected Dobbs decision. Although none of the new justices have ruled on abortion-related cases, she and other pro-lifers are hopeful. If that doesn’t pan out, pro-life groups are pushing for a constitutional amendment that the pro-life legislature last year approved for the ballot. It needs approval from the next General Assembly, either in 2023 or 2024, before it can come before voters.
Kansas is further along in the process. Its pro-life amendment received approval from the pro-life legislature in 2021 and will appear on an August ballot. “Kansas is ground zero for what the abortion culture will look like in a post-Dobbs world,” said Jones with the Kansas Family Voice. “We are the first ballot test. … If we can’t stop them in Kansas, it’s gonna be really difficult to promote life around the country.”
BACK IN MICHIGAN, seven minutes west of where Kayla Pomper stood in Eastown, Grand Rapids, next to the sign of the aborted baby, a four-story, red-brick building in downtown Grand Rapids houses the office of one of the defendants in a court case that could lead to a court-created right to abortion in that state.
Christopher Becker, a tall, middle-aged man with sand-colored hair, is on his second term as the Kent County prosecuting attorney. On an April Wednesday at noon, stacks of papers and overstuffed binders sat on the desk in his office. “That’s a double homicide. That’s a homicide,” he said, looking at the piles of police reports and case files. Homicide and domestic violence cases are the kinds he deals with in a typical month.
But recent months have not been typical. He’s handling a police shooting case that has attracted the attention of civil rights groups nationally, and in April Michigan Gov. Gretchen Whitmer sued Becker and 12 other prosecuting attorneys in counties with abortion facilities over the dormant 1931 abortion law, the same day Planned Parenthood sued pro-abortion Michigan Attorney General Dana Nessel over the law.
Becker called the governor’s move “a political stunt”: “We haven’t even enforced this law, never thought about this law, but all of a sudden, here we are getting sued.” Unlike Nessel and seven of the county prosecuting attorneys, though, Becker said, “I don’t know how I wouldn’t,” when asked if he would enforce the law if it were allowed to take effect. “The legislature sets the laws,” he said, adding that making a blanket decision as a county prosecuting attorney to ignore a law you disagree with is “going down a slippery slope.”
Although filed in the Oakland County Circuit Court, Whitmer is trying to use her executive powers to fast-track the case to the Michigan Supreme Court. In the lawsuit, she calls on the courts to declare the 1931 law unconstitutional and to declare that the state constitution, which says nothing about abortion, guarantees a right to abortion under the Due Process Clause. The Planned Parenthood case makes similar arguments, but a May 17 ruling in that case does not settle abortion’s constitutionality. It only temporarily prevents state officials like Becker from enforcing the law if the U.S. Supreme Court overturns Roe.
David Kallman, a white-haired attorney with offices in Lansing, is a part of the Great Lakes Justice Center, the legal team representing Becker and another of the county prosecuting attorneys in the Whitmer case. His legal team argues that the governor and Planned Parenthood have no reason to sue since the U.S. Supreme Court has not overturned Roe yet (the leaked Supreme Court opinion is still just a draft) and none of the defendants have attempted to enforce the 1931 law. But he also pointed out the fundamental problem with the approach that Whitmer and Planned Parenthood have taken: “It’s the legislature’s prerogative to change a law. It’s the people’s through a petition.”
In March, a coalition of pro-abortion groups started collecting signatures on a citizen’s petition to put an “abortion rights” constitutional amendment on the ballot in November. The goal: to gather the required 425,059 signatures before the July 11 deadline. The proposed amendment declares abortion a “fundamental right,” saying that the state can regulate abortions after fetal viability, usually around 24 weeks, but only if it allows for broad health exceptions, including the mental health of the mother, which in some cases can allow abortion for social and familial reasons. Current Michigan law only allows post-viability abortions if the mother’s life is in danger.
The petition effort, Kallman said, is “legal and proper.” But this petition and the lawsuits look contradictory in juxtaposition. If the governor and Planned Parenthood are right in arguing that the Michigan Constitution protects the right to abortion, then why have a petition drive to add that right to the constitution? “Those two things don’t add up,” said Kallman.
Michigan pro-life groups have filed briefs or motions in both lawsuits against the 1931 abortion law. But, other than that, there’s not much they can do to counteract these court-level efforts. So, many Michigan pro-lifers are focusing on educating voters about the amendment petition—and about what abortion is.
Back in Grand Rapids, Kayla Pomper and her fellow volunteers are taking it one conversation at a time. On that Saturday morning in April, some of the people they approached with the question, “Can I get your thoughts on abortion?” stopped to talk. Most kept on walking, but even some who kept going by looked at the photo of the aborted baby. Occasionally, someone would say “gross” as they kept walking.
“Our goal is to take it a day at a time and make abortion unthinkable on the level of just having conversations with people,” said Pomper. She said a lot of those conversations right now should be about what it actually means to have a right to abortion. In her mind, “that means that we’re giving mothers the right to kill their offspring,” she said. “Not only is that detrimental to the child but it’s harming our mothers … it’s lying to the woman.”
—with reporting from Carolina Lumetta in Harrisburg, Pa.
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