Did the abortion debate jump from one high court to 51?
A call to action in the cause of life—and in the courts
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It has been six months since the Supreme Court handed down its opinion in Dobbs, reversing Roe v Wade. Justice Samuel Alito, in his majority opinion, promised the decision would “return the issue of abortion to the people’s elected representatives,” most importantly, to the elected officials of the states. In many states, that promise has gone unfulfilled and the issue has simply fractured from the federal Supreme Court to the high court of each state.
In ruby-red South Carolina, the state Supreme Court has just struck down a ban on abortions after six weeks, a “heartbeat” bill, by a 3-2 vote. The same week, in equally ruby-red Idaho, the state high court upheld a series of abortion restrictions by a 3-2 vote. Over the course of the next few years, we can expect dozens more rulings in red and purple states testing new abortion restrictions under each state constitution.
In short, in most of America, the issue of abortion will be finally decided not by voters or state legislators, but by a different set of black-robed rulers. In four states, the state constitution explicitly outlaws abortion and authorizes legislative enforcement of that principle. Perhaps in the wake of the win in Dobbs, several other red states will go this route. But in the rest of the country, any state statute limiting abortion access will be tested under generic rights provisions of state constitutions before state courts.
The right of state courts to interpret their state constitutions is as old as the nation itself—before we had our national constitution in 1787, all of the initial thirteen states had their own charters and laws subject to interpretation and application by their state courts. We live in a nation with 51 constitutions, as Judge Jeff Sutton reminds us.
The power of state courts came to the fore in the 1970s and ’80s, after a Harvard Law Review article by U.S. Supreme Court Justice William Brennan. Leader of the Court’s liberal wing, Brennan was deeply frustrated as the glory days of the Warren Court were replaced by the conservative majority of the Burger Court. In his article, he called state supreme courts to begin actively relying on their own state constitutions for expansive rights claims. Brennan asked state high courts to ignore his own court’s rulings on cognate provisions of the U.S. Constitution’s Bill of Rights and extend greater protection through sheer force of judicial will.
Numerous state court justices took up his call to arms, and began issuing sweeping rulings against the death penalty or in favor of broad free speech rights. Eventually conservatives also got in on the act, finding state constitutional provisions useful tools to protect religious liberty and property rights after disappointing federal decisions like Employment Division v. Smith (on religious liberty) and Kelo v. New London (on private property rights).
Prior to South Carolina’s abortion ruling, only eight state high courts had found a right to abortion under their state constitution, but many others have not plumbed the depths of their constitutions as to abortion because Roe relieved them of much need to do so. But even red or purple states Alaska, Florida, Kansas, and Mississippi, are among those with state court rulings finding state constitutional protections for abortion access.
With Roe gone, pro-lifers must now care about dozens of state high courts, composed of hundreds of justices, with each court having its own unique doctrines and precedents. And state judicial selection, which has often been a higher priority for business conservatives than for social conservatives, takes on profound new importance. This includes not only which judges are chosen, but the rules by which they are selected.
Many red states, especially in the West and Midwest, use the “Missouri Plan” to select judges, which turns power over to bar association insiders and produces judiciaries often markedly to the left of a state’s overall populace. Perhaps the silver lining will be that liberal judiciaries in places like South Carolina, which have generally operated under the radar, will finally be exposed by wrong rulings on abortion, leading to long overdue reform.
The win in Dobbs is a God-send for which the faithful had been praying for decades. But that decision will not end the fight against judicial activism. It will simply shift us to a new phase with 50 fronts in the same struggle to ensure every child is welcomed in life and protected in law.
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