State constitutions in the spotlight as U.S. Supreme Court reconsiders Roe v. Wade

A decision by the U.S. Supreme Court reversing Roe v. Wade and declaring that the U.S. Constitution does not protect abortion rights would return the issue to the 50 states and put the spotlight on state constitutions, according to Wake Forest Politics professor John Dinan, who has written extensively about state constitutions.

State court rulings: Some state supreme courts have interpreted their state constitutions – drawing on privacy, liberty, and equal protection provisions – to protect abortion rights independently of the U.S. Constitution.  A U.S. Supreme Court decision declaring abortion rights are not protected by the U.S. Constitution would have no effect on state courts’ ability to rely on state constitutions to protect abortion rights and would lead to increased litigation in state courts seeking to guarantee access to abortion.

State constitutional amendments: Some state constitutions contain provisions dealing explicitly with abortion and in a way that limits state courts’ ability to protect abortion rights.  The Rhode Island, Tennessee, Alabama, West Virginia, and Louisiana constitutions include language stipulating that state constitutional provisions should not be understood as protecting abortion rights.  Later this year, voters in Kansas and Kentucky will consider approving similar amendments limiting state courts’ ability to protect abortion rights.

At the same time, voters in other states will consider adopting a very different set of constitutional amendments that would expand protection for abortion rights.  None of the 50 state constitutions currently contains provisions explicitly protecting abortion rights.  However, later this year voters in Vermont and possibly Michigan (if supporters collect enough signatures in support of a ballot measure) will consider adopting amendments providing explicit protection for reproductive freedom.

Dinan is editor of Publius: The Journal of Federalism, author of the book, State Constitutional Politics, and writes an annual review of state constitutional developments.