Jurisprudence

A Post-Roe Road Map

The Iowa Supreme Court shows how judges can protect abortion rights when the federal judiciary won’t.

A white government building with a green dome.
The Iowa Supreme Court in Des Moines.
CTF83!/Wikipedia/Creative Commons

Two days after Justice Anthony Kennedy announced his retirement from the U.S. Supreme Court—ensuring the imminent reversal of Roe v. Wade—abortion rights advocates won a striking victory in Iowa: For the first time, the state’s Supreme Court ruled that the Iowa Constitution protects “reproductive autonomy,” including the decision to terminate a pregnancy. The court went on to define this constitutional right far more robustly than the U.S. Supreme Court currently does, subjecting all abortion restrictions to stringent scrutiny and, in the process, invalidating a mandatory 72-hour waiting period for abortion patients.

The Iowa Supreme Court’s 5–2 decision in Planned Parenthood v. Reynolds is an unmitigated triumph for progressives agonizing about Roe’s impending demise. It also points a way forward for abortion rights. Once the U.S. Supreme Court hollows out or overturns Roe, a number of states will quickly ban or severely limit abortion, leaving women to rely upon their state judiciaries to protect their access to reproductive health care. State supreme courts can fill the void that will soon be created by their federal counterpart. Given that shift in power to the states, pro-choice activists should become as invested in their state judiciaries as abortion opponents have been in the U.S. Supreme Court.

It wasn’t clear how the Iowa Supreme Court would rule when Planned Parenthood challenged the state’s 72-hour waiting period under the state constitution. Four of the court’s seven members were appointed by former Republican Gov. Terry Branstad, a fierce abortion foe who signed the waiting period bill into law. And while the court has often been at the forefront of social justice—it struck down racial segregation in education 86 years before Brown v. Board of Education—its justices have faced dire consequences for their courage. In 2010, after the court voted unanimously to invalidate the state’s ban on same-sex marriage, voters recalled three justices, sowing uncertainty about the Iowa’s Supreme Court’s ability to function as an independent check on the Legislature.

Chief Justice Mark Cady dispelled those concerns in his Reynolds decision. Rooting the right to abortion access in the state constitution’s guarantees of due process and equal protection, Cady explained the profound burden an unwanted pregnancy may place on a woman. (His opinion is far more sympathetic to pregnant women than any decision made by the U.S. Supreme Court—ironic given the fact that Cady’s court is composed entirely of men.)

“Parenthood,” Cady wrote, encompasses “social and moral expectations that demand a parent takes responsibility to provide for his or her child. Well into the twenty-first century, this expectation continues to fall disproportionately upon the child’s mother.” And whether a woman is ready for these “life-altering obligations and expectations is a decision about which the government has scarce insight.”

“Autonomy and dominion over one’s body,” the chief justice continued, lie at the heart of the liberty and equality guaranteed by the Iowa Constitution. And so a woman’s decision to terminate a pregnancy qualifies as a “fundamental right” upon which the state may not lightly tread.

Progressives have dreamed of hearing these words from the U.S. Supreme Court for decades. Instead, the justices have given us the endlessly malleable “undue burden” test, which merely prohibits states from placing a “substantial obstacle” in the path of women seeking abortions. Under this standard, the court has permitted mandatory waiting periods, asserting that the state’s interest in “fetal life” outweighs the intrusion on the patients’ constitutional rights.

In Reynolds, the Iowa Supreme Court explicitly rejected this reasoning. Rather, it declared that, because abortion is a fundamental right, restrictions on the procedure must be subject to strict scrutiny—that is, narrowly tailored to further a compelling government interest.
The 72-hour waiting period cannot survive this test, Cady held, as it “indiscriminately subjects all women to an unjustified delay in care” and “imposes blanket hardships upon all women.” He concluded with an encomium to women’s equality under the Iowa Constitution. “Laws that diminish women’s control over their reproductive futures,” he wrote, “impermissibly invade” their right to equal protection of the law.

The two dissenters would have applied the undue burden test to Iowa’s waiting period and upheld the law. They criticized the majority for lacking “balance and perspective” while conveying “an undertone of moral criticism toward abortion opponents.” And they questioned whether the court’s sweeping decision functioned as “perhaps a stepping stone toward a ruling that Iowa’s Medicaid program must fund abortions.” (Expect the U.S. Supreme Court to deploy similar reasoning if it dilutes the undue burden standard to the point of meaninglessness.)

Cady is not alone in looking beyond the U.S. Constitution to find a state-based right to abortion access. A number of other state courts have issued similar rulings rooted in their own states’ constitutions. In 2016, the Alaska Supreme Court issued a 4–1 decision striking down a law requiring parental notification for minors seeking an abortion, holding that it ran afoul of the Alaska Constitution’s equal protection guarantee. That same year, the Kansas Court of Appeals struck down a ban on second-trimester abortions, holding that it violated the state constitution’s Due Process Clause. A year later, the Florida Supreme Court blocked a 24-hour waiting period as a violation of the right to privacy under the state constitution. And back in 1999, the Montana Supreme Court found a right to “procreative autonomy,” striking down a law that forbade physician assistants from performing abortions.

Progressive advocates have also relied upon state courts to void limitations on the use of public funds to cover reproductive health care. The state supreme courts of Arizona, New Mexico, and West Virginia have compelled their states’ Medicaid programs to cover “medically necessary” abortions. And the American Civil Liberties Union of Maine recently argued before the state Supreme Court that the Maine Constitution’s Equal Protection Clause compels the state to cover abortion costs for low-income women. (The case is still pending.)

There is one obvious problem with relying upon state courts to protect abortion rights: Their decisions are much easier to overturn than those of the U.S. Supreme Court. After the Florida Supreme Court struck down a parental notification law in 2003, for instance, voters added the measure to the state constitution. And in November, West Virginia will vote on the “No Constitutional Right to Abortion Amendment,” which would overturn the landmark decision extending the state’s Medicaid funds to reproductive care. When the right to abortion access is based in a state constitution, it is always vulnerable to a certain degree of majoritarian backlash, through constitutional amendments or judicial elections.

But that’s no reason for progressives to give up the fight, and this year’s midterm elections will offer liberal voters the chance to bolster state-level protections in several additional states. In Michigan, Samuel Bagenstos and Megan Cavanagh are running for the state Supreme Court as proud progressives who could give the court a 4–3 liberal majority. In North Carolina, Anita Earls is running for the state Supreme Court on an unabashed civil rights platform. And back in April, Democrat Rebecca Dallet easily won a seat on the Wisconsin Supreme Court, shrinking Republicans’ stranglehold on the state judiciary.

There are no strong progressive candidates, however, in a number of states with supreme court seats in play. If the U.S. Supreme Court overturns Roe, Democrats will likely begin to contest far more judicial elections—and abortion will be a key issue, as advocates pursue their claims exclusively under state law. Bagenstos, the Michigan candidate, told me that if Roe does get overturned, “We can expect many more cases like this to be heard by state courts.” These courts, he added, shouldn’t shrink from their duty “to enforce the full scope of rights protected by their state constitutions.”

This plan is not ideal. It is far more difficult to develop 50 different strategies in 50 different states than it is to secure a nationwide rule from the U.S. Supreme Court. But reproductive rights activists will soon have little choice but to seek refuge in state constitutions. And Americans who support abortion access will have to start paying a great deal more attention to the composition of their states’ high courts.