Red State Roes

Katie Short

As this issue of Lifeline went to print, we were still awaiting a decision from the Supreme Court in Jackson Women’s Health Organization v. Dobbs, the Supreme Court case that could curtail or overturn Roe v. Wade and Planned Parenthood v. Casey. The decision will allow states much greater leeway in passing laws to protect babies in the womb.

In the meantime, two generations of SCOTUS-dictated abortion on demand have coincided with, if not directly caused, radical changes in attitudes toward abortion. Just the thought of Roe being overturned has led several states to declare their commitment to an abortion license even broader than that required under Roe. In the past two years, New York, Virginia, New Jersey, and Massachusetts have passed laws prohibiting any meaningful restrictions on killing infants living in the womb, emerging from the womb, and arguably beyond.

Desperate to find new ways to make abortion more accessible and convenient in California, Governor Gavin Newsom, as well as other Democrat politicians, have declared their intention to make the state a “sanctuary” for abortion. Their plans include not only paying for abortions for women coming from out of state, but also paying for their travel and lodging.

But not all the momentum has favored abortion. Many state legislatures have become more pro-life in recent years and are anxious to pass life-saving laws.

Even if Roe is overturned, though, many pro-life legislatures will face another obstacle: their own state courts. In these states, including red states such as Alaska, Iowa, Kansas, Montana, and Mississippi, the state supreme court at some point in the past four decades decided that the right to abortion is independently protected by some provision in the state constitution, usually a right to “privacy,” but sometimes the equal protection clause or another provision. Whether those courts would affirm that stance today is another question.

To take one example, in 1989, the Florida supreme court decided that a 1980 amendment to the Florida state constitution guaranteeing to every person “the right to be let alone and free from governmental intrusion into the person’s private life,” encompassed a right to abortion. Unfortunately, unlike the tortured readings other state supreme courts have given to their constitutions, the Florida high court’s decision may very well have correctly recognized the intent of the voter-approved constitutional amendment, i.e., to enshrine in the Florida constitution a Roe v. Wade style right to abortion.

Reading this decision more than 30 years after it was written, I was struck by the court’s justification of using the “point” of viability as a demarcation and particularly its description of the fetus.

Until this point [of viability], the fetus is a highly specialized set of cells that is entirely dependent upon the mother for sustenance. No other member of society can provide this nourishment. The mother and fetus are so inextricably intertwined that their interests can be said to coincide.1

After decades of educational efforts by pro-life advocates, it is difficult to imagine anyone saying with a straight face that a fetus at six weeks, much less six months, is a “highly specialized set of cells.”

In a subsequent decision, the Florida supreme court went even further than the U.S. Supreme Court and struck down a parental notification law.2 In response, Floridians amended the state constitution specifically to authorize the Legislature to pass laws requiring parental notification, which the Legislature promptly did.

In 2016, the Florida legislature passed an informed consent law with a 24-hour reflection period. Again, the Florida supreme court struck the law down, this time issuing a even more sweeping interpretation of the state constitutional right:

Any law that implicates the right of privacy is presumptively unconstitutional, and the burden falls on the State to prove both the existence of a compelling state interest and that the law serves that compelling state interest through the least restrictive means.3

Even the most minimal and commonsense regulation of abortion is unlikely to survive such an exacting test. Although the case was remanded for a trial (scheduled for April 2022), as a practical matter the Florida Supreme Court must reconsider its prior rulings or the voters must again amend the state constitution before real pro-life progress is possible.

To take another example, in 2018 the Iowa Supreme Court found a right to abortion in the due process and equal protection clauses of that state’s constitution. While denying that they were straying from their proper role, five activist judges struck down a 72-hour reflection period, pompously pronouncing:

Autonomy and dominion over one’s body go to the very heart of what it means to be free. At stake in this case is the right to shape, for oneself, without unwarranted governmental intrusion, one’s own identity, destiny, and place in the world. Nothing could be more fundamental to the notion of liberty. We therefore hold, under the Iowa Constitution, that implicit in the concept of ordered liberty is the ability to decide whether to continue or terminate a pregnancy.4

This past February, the court heard argument on a 24-hour reflection period statute. Legislators and the governor urged the court to overrule its 2018 precedent.

In 2019, the Kansas Supreme Court struck down a state ban on partial birth abortion after discovering a right to right to abortion in the state’s Bill of Rights, enacted in 1861. The Kansas legislature responded by voting with a two-thirds majority to place on the ballot an amendment declaring that the state constitution does not guarantee a right to abortion. Voters will decide that issue in their primary election this coming August.

Pro-lifers in Kentucky are proactively seeking to prevent such judicial activism by adding a provision to their constitution stating that it does not guarantee a right to abortion. That initiative will be on the November ballot. If Kansas’s and Kentucky’s amendments pass, they will join four other states with similar provisions preventing judicial interference with anti-abortion legislation.

As these states show, the fall of Roe v. Wade will be a huge victory in the fight to end abortion, but not the end of the fight. Pro-lifers should be preparing for battles at the state level and increasing our efforts to shift public opinion against abortion.

[Published in Spring 2022 issue of Lifeline.]

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1In re T.W., 551 So.2d 1186, 1193 (Fla. 1989)

2North Florida Women’s Health & Counseling Services, Inc. v. State, 866 So.2d 612 (Fla. 2003)

3Gainesville Woman Care, LLC v. State, 210 So.3d 1243, 1256 (Fla. 2017)

4Planned Parenthood of the Heartland v. Reynolds ex re. State, 915 N.W.2d 206, 237 (Iowa 2018)

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