The Supreme Court’s undoing of Roe was, in some ways, like watching a car crash in slow motion. You could see the disaster coming but either felt powerless to stop it or simply looked away in hopes it would not occur. With the confirmation of Justices Neil Gorsuch and Brett Kavanaugh, the SCOTUS die was cast; Justice Amy Coney-Barrett just provided greater impetus for conservative justices to destroy a right in place for nearly 50 years. The legal and political wars are not over, but for the moment they are shifting to separate battlegrounds in the 50 states, each of which have different constitutions, traditions, political leadership, and local identities. What will emerge is difficult to predict, though it is clearer than ever before that when it comes to reproductive rights, states matter!
Here are likely the four most important states to watch over the next 12 months:
Kansas. The Roe decision, like Griswold before it (establishing a right to contraception), relied on the “right of privacy” that is not explicit in the U.S. Constitution, but is instead included in “penumbra of rights” implied by a reading of the document and its amendments. Strict constitutionalists like former Justice Antonin Scalia and Justice Samuel Alito, the author of Dobbs, have attacked this reasoning for years, with the latter opining that Roe “was egregiously wrong from the start.” Unlike the U.S. Constitution, 11 state constitutions include an explicit “right of privacy,” and the Sunflower State is one of them. In 2019, the state’s Supreme Court used this provision to hold that the Kansas constitution protects the right to an abortion. Conservative legislators were incensed and have now placed an initiative on the ballot to strip abortion rights from the state constitution. The vote will occur on August 2, designed to coincide with a hotly contested GOP primary, which will already drive many conservatives to the polls. This will be the first test of voters’ reactions to Roe’s undoing.
Michigan. Like its neighbor Wisconsin, Michigan has laws on the books deeming abortion illegal, including a 1931 abortion ban that criminalizes the procedure. With Roe extinguished, women could be prosecuted for having an abortion. Whether this will occur or not is an open question, but it is prompting political and legal action on several fronts. Michigan Gov. Gretchen Whitmer (D) recently filed a motion asking the state Supreme Court to recognize abortion as a right under the Michigan constitution. Conservatives that control both legislative chambers have already introduced bills to further punish abortion providers in the state. And citizens are gathering signatures that could insert a right to abortion into the state constitution. If they can garner the needed 425,000 by July 11, the measure will be on the ballot this fall, when Whitmer will stand for reelection.
Florida. In 1980, 60 percent of Florida voters amended the state’s constitution to explicitly establish a “right to privacy,” and that provision was cited by Florida Supreme Court justices more than three decades ago to overturn a state law requiring parental consent for abortion (the state just passed a law reinstating the requirement, which is now being challenged in the federal courts). The explicit right to privacy is now being used in an effort to overturn a recent state measure that would prevent abortions after 15 weeks without exception for rape or incest. A similar challenge has also been mounted by Jewish groups who argue the failure of the new bill to include an exception to protect the life of the mother violates their religious rights. Preliminary rulings in these cases could be issued soon, but final decisions will likely be determined by a state Supreme Court that has become markedly more conservative with the recent appointment of three justices by Gov. Ron DeSantis. And a huge election to elect a new governor looms this November.
Virginia. The Commonwealth has changed dramatically since the state’s “transvaginal ultrasound” controversy in 2012. Democratic governors in the last decade have prevented anti-choice legislation from becoming law and were able to repeal many of the regulations that created further burdens for women seeking abortion. In 2020, Democrats gained control of the House and Senate, and made many changes in the law. Unlike some nearby states, Virginia no longer mandates counseling, ultrasounds, or waiting periods prior to obtaining an abortion. The procedure is currently lawful during the first and second trimesters of a pregnancy; in the third trimester, it is permitted but only if three doctors say that that continuing the pregnancy “is likely to result in the death of the woman” or “substantially and irremediably impair [her] mental or physical health.”
All of this could change—with the flip of one seat in the state Senate in the next election in 2023.
Virginia Gov. Glenn Youngkin (R) says that he will seek an abortion ban after 15 weeks of pregnancy, and continues his attempts to deny public funding for the procedure. At present, these could not pass because Democrats have a 21-19 majority in the Senate and control committee assignments. But if Republicans gain one vote, they can control decisions in this area, because the Republican lieutenant governor would cast the deciding vote.
The overturning of Roe is a tremendous blow to those who have sought to preserve a women’s ability to obtain a safe abortion. States like Oklahoma and Tennessee now have bans that affect women even before they know they are pregnant; others prevent abortion even in case of rape or incest. Some states will undoubtedly pass protections like those articulated by Roe and its progeny. In some instances, advocates may be able to utilize state constitutional provisions to defeat draconian legislative action putting women at risk. Elections may turn on the issue. But no longer will there be any overarching federal protections, further exacerbating the already deep divisions between the states and within the country itself. There is much work to do.
