Constitutional Law: State Constitutions and Reproductive Rights After Dobbs: Navigating the New Landscape in Legal Battles

Written by Teja Lebaka and Moksha Davaloor

Edited by Teja Lebaka, Anna Ramesh, and Liv Moreno

The Supreme Court's decision in Dobbs v. Jackson Women's Health Organization (2022) removed the legal abortion rights established by Roe v. Wade (1973) and Planned Parenthood v. Casey (1992). This change gave states the power to regulate abortion, leading to significant legal and political activity across the United States. State constitutions have become essential battlegrounds as legislatures, courts, and voters work to influence the future of reproductive rights.

Case Background and Legal Shifts

Before the Dobbs ruling, the landmark case Roe v. Wade upheld abortion rights under the Due Process Clause [the "Due Process Clause" is a part of the U.S. Constitution that says the government must follow fair rules and treat people fairly if it wants to take away their life, liberty, or property. In simple terms, it means the government cannot punish or harm someone without giving them a fair chance to defend themselves] of the Fourteenth Amendment, emphasizing the right to privacy. The court's decision on the Dobbs case shifted this perspective by asserting that abortion is not "deeply rooted in the Nation's history and traditions." The ruling clarified that the Constitution does not recognize or protect abortion rights, suggesting that elected officials should determine such policies (Constitution Center, 2024; SCOTUSblog, 2024).

In response to this change, lawmakers swiftly enacted "trigger laws" in thirteen states that either ban most or all abortions, allowing limited exceptions, such as when the life of the pregnant person is endangered. Conversely, states like California and Michigan took proactive steps to safeguard reproductive rights by amending their constitutions to ensure access to abortion explicitly.

Previous cases that set the precedent

Griswold Vs. Connecticut (1965)

At the time, Connecticut had a law that prohibited the use of contraceptives for married couples. Estelle Griswold, the executive director of Planned Parenthood, was subsequently arrested for aiding couples in accessing contraceptives, as well as providing contraceptive devices and advice. This led to concerns that such a law violated the constitutional right to privacy. Since privacy is not explicitly stated as a right in the Constitution, but is instead an implied right (by way of the First, Third, Fourth, and Ninth Amendments), there was some gray area left for the Supreme Court decision. In the end, the law was struck down by a 7-2 majority (the majority opinion written by Justice William O. Douglas), setting a precedent that privacy is a constitutional right to be protected, which becomes even more important given the context of future reproductive rulings.

Eisenstadt vs. Baird (1972)

William Baird was arrested in 1967 for distributing contraceptives to unmarried people (due to a Massachusetts law that only permitted married people to access contraceptives). He argued that the law violated constitutional rights as unmarried people had the right to access contraception. The law was overturned after a 6-1 ruling by the US Supreme Court (majority written by Justice Brennan), which affirmed that the right to privacy protected both married and unmarried individuals. This has major implications for Roe v. Wade as it was foundational to the argument of personal autonomy in reproductive decisions.

Planned Parenthood v. Casey (1992)

Pennsylvania abortion law had several provisions, including (but not limited to) a 24-hour waiting period, parental consent for minors, spousal notification, and informed consent. The case argued that these provisions placed an "undue burden" on women's constitutional abortion rights. The Supreme Court's decision reaffirmed Roe v. Wade (with Justices O'Connor, Kennedy, and Souter writing the joint opinion), but simultaneously upheld most of Pennsylvania's provisions, establishing the "undue burden" standard. This standard refers to a threshold that must be met for abortion law or regulations to be considered unconstitutional (i.e. whether it places a substantial obstacle in the way of seeking out reproductive healthcare and by proxy exercising constitutional rights). This standard essentially became a test/framework to evaluate each individual states' regulation. The "undue burden" test was ultimately discarded in the Dobbs case.

Developments in State Constitutions

Restrictive Approaches

Many states created strict laws on abortion after the Dobbs decision. For instance, Arkansas and Missouri put in place near-total bans on abortion. In Wyoming, courts stopped similar laws, saying they might conflict with a state rule protecting healthcare choices. These legal issues highlight the challenges in states where many people oppose abortion (PolitiFact, 2024).

Protective Measures

States like Michigan and Vermont have taken steps to protect abortion rights by adding amendments to their constitutions. In November 2022, Michigan voters passed Proposition 3, which guarantees reproductive freedom, including access to contraception and abortion. Vermont's Amendment 22 also supports personal choice in reproductive decisions. These laws protect against potential future restrictions (Constitution Center, 2024).

Judicial Interpretations

Some courts have used existing constitutional laws to protect abortion rights. For example, in 2019, the Kansas Supreme Court ruled that its constitution supports bodily autonomy, which includes the right to have an abortion. In 2022, Kansas voters agreed with this ruling by voting against an anti-abortion amendment. These examples show how state courts and voters influenced the situation after the Dobbs decision (Oxford Academic, 2024).

Current Status and Implications

The Dobbs decision has created a mix of abortion laws across the country. In states with strict regulations, groups are challenging these rules in court. Meanwhile, states that protect abortion rights are working to ensure access, even against federal pressure. Advocacy groups on both sides are using ballot initiatives and court cases to shape policies, highlighting the growing importance of actions at the state level. Dobbs has started discussions about the possible effects of reversing long-standing legal decisions. Critics say that the reasons used to end Roe could threaten other rights, like access to birth control or same-sex marriage. However, the Court's majority opinion stated that its decision only affects abortion.