Abortion Goes to the States: Legal Expert Discusses State-Level Efforts
Paul Benjamin Linton, a Catholic attorney in Illinois, is author of ‘Abortion Under State Constitutions,’ a comprehensive state-by-state analysis of the status of abortion.
Paul Benjamin Linton, a Catholic attorney in Illinois, is author of Abortion Under State Constitutions (Carolina Academic Press), a comprehensive state-by-state analysis of the status of abortion as a state constitutional “right,” now in its third edition. A graduate of Loyola University of Chicago’s Law School, he has been general counsel for Americans United for Life and submitted friend-of-the-court briefs in many high-profile Supreme Court abortion cases.
With the June 24 Dobbs decision that overturned the claim that abortion is a federally protected “right,” the abortion debate — barring congressional interference — will likely shift to the 50 states. Since each state has its own constitution, it’s also likely that efforts to invent a “right” to abortion at the state level will also be pushed. Linton spoke to the Register on July 7.
Do you think there is going to be an effort to create “abortion rights” under state constitutions?
There’s no question that there will be an effort in many states to persuade state supreme courts to recognize a “right” to abortion that is separate from, and independent of, the federal right to abortion that the Supreme Court recognized in Roe v. Wade (1973) and just overturned in Dobbs. Such litigation has already been filed in Idaho, Kentucky, Michigan, Ohio, Oklahoma, Pennsylvania, Texas and Utah and may be expected in other states. That list does not include the approximately 12 states that have already recognized such a “right.”
Some state supreme courts early on defined “abortion rights” in conjunction with secondary aspects of the federal “right” that’s now gone, e.g., that states had to pay for abortions under their own Medicaid or health-care programs. Do you think, with the federal “right” now overturned, some of those state decisions could be revisited?
Yes, in some cases. Both the Arizona and West Virginia Supreme Courts required some public funding of abortions. Those decisions were based on the existence of a federal “right” to abortion. Neither court recognized a state right, and the West Virginia Constitution was amended to preclude such recognition. I don’t think adverse state supreme court funding rulings in other states (Alaska, California, Massachusetts, Minnesota, New Jersey or New Mexico) or unappealed state trial-court decisions in Connecticut or Montana will be revisited. The Indiana Supreme Court required the Hoosier State to expand its coverage of Medicaid abortions without recognizing a state “right” to abortion. That decision might be revisited at some point.
With Roe almost 50 years old, how likely is it that states will “discover” a state right to abortion after failing to do so for a half-century?
Some states adopted new constitutions or constitutional amendments since Roe was decided that might be used to assert a “right” to abortion. All state supreme court decisions recognizing a state “right” to abortion followed Roe, except for the 1969 Belous decision in California. Both the Iowa and Kansas Supreme Courts recognized a state constitutional right to abortion in just the last four years, although the Iowa decision has been overruled in a very recent decision of their state supreme court, and the Kansas decision may be overturned in a measure that will appear on the Kansas ballot in August. I mentioned the eight states above where new cases have been filed.
Politicians in places like New York, New Jersey and California have “codified” abortion under state law. All of them already had state supreme court rulings asserting a “right” to abortion under state constitutions. So what does “codification” in those states gain?
Codification of abortion “rights” in these states signaled that the legislatures agreed with Roe and the state’s own supreme court decision(s) recognizing a parallel state right to abortion. In several instances, “codifications” of Roe actually have gone beyond Roe, repealing or limiting regulatory measures that were constitutional under federal precedents even before Dobbs overruled Roe.
What recourse do people have if a state supreme court “pulls a Roe” on them? Do we have examples of such pushback?
Basically, there are two options. You can adopt a state constitutional amendment that overturns an adverse state court ruling, as has already happened in Tennessee and West Virginia (and may happen shortly in Kansas). Or you can try to persuade the state supreme court that it was in error and should revisit and overrule its prior precedent, as has happened most recently in Iowa and may happen in the foreseeable future in Florida and Mississippi if the court is asked to do so.
Indeed, during the week of July 4, a Mississippi state trial court held that the state supreme court’s decision recognizing a state right to abortion is no longer controlling because that decision relied on Roe and Casey, which have now been overruled in Dobbs. The amendment process, however, would usually be the only real option in many states in order to overturn an adverse state supreme court decision. I do not believe efforts to recall judges are particularly helpful. What is helpful is making sure that the right candidates are appointed or elected as judges in the first place.
Many states have ambiguous language in their constitutions that courts have used to insert themselves in policy debates. Do you see similar opportunities for state courts to try that on abortion?
Most state courts that have recognized a state “right” to abortion have derived it from either an express right of privacy in the state constitution or an implied right of privacy that the court found. These and other theories that have been cited in support of state-level abortion “rights” are discussed in depth in my book, Abortion Under State Constitutions.
What inspired you to write that book, and, in the wake of Dobbs, what are your future writing plans?
I saw the need for a comprehensive treatment of abortion as a state constitutional right. When I began working on the first edition, before 2008, there were already a slew of state supreme court decisions recognizing a state right to abortion. These decisions often had an impact on the constitutionality of regulatory measures that were permissible under the federal constitution, like public funding or parental involvement. They also precluded any measures prohibiting abortion, in the event Roe was reversed, as it now has been.
Having just published a law-review article on how states should approach state constitutional amendments, I do not have any immediate writing plans, though I am continuing to consult with states on legislation and amendments and will be involved in some of the post-Dobbs state litigation. I plan on publishing a fourth edition of my book in the next two or three years to take into account developments post-Dobbs.
- roe v. wade
- united states
- planned parenthood v. casey
- Dobbs v. Jackson Women’s Health Organization
- paul linton