Abortion Bans Are in Hands of State, Not Federal, Judges in Wake of Dobbs Ruling
Nineteen states are currently considering legal challenges.
The right to procreate is also the right to abort, a lawyer challenging Idaho’s new statute banning abortion said recently.
A so-called trigger law passed in 2020 anticipating the reversal of Roe v. Wade became operative in the state on Aug. 25, 2022, banning abortions in Idaho except in the cases of rape, incest and the life of the mother. But advocates for legal abortion claim the new law violates what they describe as a fundamental right.
“The Idaho Constitution protects the fundamental right to procreation,” Alan Schoenfeld, a lawyer representing Planned Parenthood, told the Idaho Supreme Court during oral arguments in October. “… An obvious incident to the right is the decision whether to procreate, as numerous state courts have recognized.”
“Why is that obvious? It would seem to me that procreation would be the opposite of abortion,” Idaho Justice Gregory Moeller said, interrupting.
“So I think procreation is the right to make choices about whether to procreate or not,” Schoenfeld replied. “I mean, the decision about whether to have your body become a vessel for the birth of a child, I think, is the decision that’s protected by the right to procreate. … The decision whether to procreate, the decision whether to bear a child or not, and the decision about whether to submit one’s body to the 40 weeks of toil entailed in pregnancy, I think, is respected by the constitution and entailed in the right to decide whether to procreate.”
Idaho is one of 19 states where courts are considering challenges to state abortion bans or limitations, five months after the U.S. Supreme Court sent abortion law back to the states by overturning Roe v. Wade. Cases are turning not on federal law, as they have for the past five decades, but on whether a state constitution that doesn’t mention abortion or refer to it directly nonetheless protects it — provoking novel pro-abortion legal arguments like the one employed by Schoenfeld.
How Should Judges Decide?
Monte Stewart, a lawyer representing the state Legislature, urged the Idaho Supreme Court to adopt the same type of analysis U.S. Supreme Court Justice Samuel Alito used in the Dobbs decision that overturned Roe v. Wade in June — that is, not to recognize a right not directly stated in the constitution unless it is part of the history and tradition of the country.
He noted that the territorial legislature of Idaho outlawed abortion in the 19th century and that abortion remained illegal through statehood and until Roe v. Wade legalized abortion nationwide in 1973.
“You need to decide what constitutes Idaho’s concept of ordered liberty. Nobody else’s. Well, how do you determine what Idaho’s ordered liberty means?” Stewart said during oral arguments Oct. 6. “You do have to consider the history and the traditions of this state. Not just narrowly legally. But even more broadly. You know? Socially. Morally. If you don’t do that, you’re going to be afloat without any neutral criteria. And it’s just going to come down to personal policy preferences. And you don’t want that.”
Stewart said court decisions like Roe v. Wade that try to provide detailed public policy on abortion end up usurping the role of state legislators.
“I just think if you say there’s a fundamental right under the Idaho Constitution to an abortion, to your grief, you will immediately become and thereafter remain legislators on this hardest of all issues,” Stewart said.
The 19 states where judges are now considering state court challenges to abortion restrictions are Arizona, Florida, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Minnesota, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, Texas, Utah, West Virginia, Wisconsin and Wyoming, according to Paul Benjamin Linton, a lawyer who has represented pro-life organizations and is the author of a 2020 book called Abortion Under State Constitutions: A State-by-State Analysis (now in its third edition).
Six cases involve “trigger” laws, which were passed before the U.S. Supreme Court overturned Roe v. Wade and were designed to make abortion illegal shortly after Roe became defunct. Two are over so-called “heartbeat laws,” which make abortion illegal after a heartbeat can be detected in an unborn child — typically around six weeks into pregnancy. Two are over abortion bans after 15 weeks into pregnancy. Among the others are post-Roe prohibitions or limitations on abortion, a 24-hour-waiting-period law, and public-funding restrictions.
In Georgia, the state Supreme Court on Nov. 23 reinstated the state’s new ban on abortion after six weeks into pregnancy, using a one-page order to overturn a lower-court judge’s decision to block the law on the basis that the state Legislature passed it when Roe v. Wade was still in effect. The high court there has not taken the case to decide whether the law is constitutional.
North Dakota also has a so-called trigger law, which made abortion illegal in the state in late August, with the exceptions of rape, incest and the life of the mother. The state Supreme Court on Nov. 29 heard oral arguments in a lawsuit challenging the ban. Meanwhile, the state’s one abortion business in August moved from Fargo, which is on the state’s eastern border, over the state line to Moorhead, Minnesota, where abortion is legal and likely to remain so for the foreseeable future.
New Type of Legal Argument
Abortion has been continuously litigated since the late 1960s, but these days, the arguments are different. Gone are familiar abortion-rights legal appeals to privacy, penumbras or liberty using the U.S. Constitution’s 14th Amendment and Bill of Rights. That’s because the cases that stated those rights — including Roe v. Wade in 1973 and Planned Parenthood v. Casey in 1992 — are no longer operative. In June 2022, the U.S. Supreme Court overturned them in Dobbs v. Jackson Women’s Health Organization, ruling that the U.S. Constitution “does not confer a right to abortion.”
So legal arguments that abortion is a right have to be made under a state constitution and state statutes. That has removed a comfort zone for state court judges who previously had federal Supreme Court decisions to fall back on, Linton told the Register.
“Now if you want to postulate a state right to abortion, you’re out there by yourself. There’s no longer any federal underpinning to a right to abortion,” Linton said.
It has also expanded the possibilities for pro-life advocates.
“It’s easier, in that there’s no automatic federal veto,” said Teresa Stanton Collett, a professor of law at the University of St. Thomas School of Law in Minneapolis and director of the school’s Prolife Center. “There was a rule that abortion was constitutional, and the question was: ‘How much can we regulate it?’ Now, we can argue that abortion is not constitutional and is the most fundamental violation of an unborn child’s dignity. For 50 years, we could not make that argument successfully.”
One problem for supporters of pro-life laws, Collett told the Register, is unequal representation in state courts. State statutes that draw lawsuits are typically defended by staff lawyers in the state attorney general’s office, some of whom are unenthusiastic about such laws and many of whom are inexperienced in abortion cases.
“And they are always up against lawyers who have literally done only abortion for decades. So I do think our side is at a huge disadvantage,” Collett said.
State attorney general offices could bring in outside expert lawyers of their own, Collett noted, but they usually don’t.
As an example, she pointed to a pending case in Minnesota, where the state Supreme Court in 1995 ruled that the state Constitution includes a right of privacy that includes abortion. About 10,000 abortions were performed in Minnesota in 2021.
Even so, the state Legislature has enacted several measures that regulate abortion and promote alternatives to it.
Among them: Only physicians can perform abortions, abortions for adult women can take place only after a 24-hour waiting period, abortions after the first trimester must take place in a hospital, women must be informed about abortion alternatives, women seeking abortions after 20 weeks must be informed of the development of the unborn child and of its ability to feel pain, and a minor girl seeking an abortion must have her parents notified and wait 48 hours or get permission from a judge.
In May 2019, those laws were challenged in a lawsuit filed in state court by a doctor who performs abortions, a nurse who wants to perform abortions, and the First Unitarian Society of Minneapolis. This past summer, on July 11, a state district-court judge in St. Paul ruled that most of the challenged abortion limitations violate the state Constitution.
As of now, an appeals court hasn’t heard the case because the state attorney general opted not to appeal it.
Collett represents a group of mothers with minor daughters who want to join the case to defend the abortion limitations. The group is called Mothers Offering Maternal Support (MOMS). The judge has scheduled a hearing on the group’s request for Jan. 5, 2023.
In a brief filed Nov. 14, Collett argued that the state attorney general’s office provided “fatally deficient” representation of the abortion limitations by providing underwhelming experts and scanty evidence.
The attorney general of Minnesota is Keith Ellison, a Democrat, who supports legal abortion and in August issued a “consumer alert” against pro-life crisis pregnancy centers.
But Ellison rejects the argument that he didn’t forcefully defend the state statutes limiting abortion. In a written statement in July, Ellison said he “vigorously defended” the laws, even though he disagrees with them, and that he opted not to appeal the trial court’s decision because he felt the state would not win the case. He said his office spent 4,000 hours and more than $620,000 on the case and that Minnesota residents deserve finality on abortion law.
The federal government isn’t completely out of abortion litigation. In Idaho, for instance, the U.S. Department of Justice on Aug. 2 filed a federal lawsuit against the state, arguing that abortion is necessary to treat some pregnancy-related “emergency medical conditions” and that banning abortion outright therefore violates the federal Emergency Medical Treatment and Labor Act of 1986, which requires emergency-room doctors to stabilize the condition of patients at hospitals that take Medicaid before discharging them.
On Aug. 24, the day before Idaho’s abortion ban was scheduled to go into effect, a federal judge, B. Lynn Winmill, a Clinton appointee, issued a preliminary injunction preventing state officials from enforcing the ban on abortion in cases where a woman’s health would be put at risk.
Lawyers for the state Legislature are asking the judge to reconsider, but he hasn’t yet ruled on their motion.
But most of the action in coming months will be in state courts, not federal courts.
Pro-life advocates expect some courts will go one way and some will go another, although Linton told the Register he expects “more wins than losses.”
Carol Tobias, president of the National Right to Life Committee, said she’s worried about activist judges inventing a state guarantee of abortion where it doesn’t exist.
“Everything is just in flux right now. We’ve got some judges that are trying to force the state constitutions to provide a right to abortion,” Tobias told the Register. “Hopefully, more judges will realize that this is not their decision to make.”