Protecting women’s choice post-Dobbs: State constitutional law

With the federal constitutional protection of a woman’s right to choose now gone following the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health, some commentators have urged choice advocates to direct their energies toward state judiciaries. As Alicia Bannon recently put it, “state courts and state constitutions are about to be more important than ever.”

Notwithstanding the understandable focus in the mainstream media on the U.S. Constitution and the U.S. Supreme Court’s interpretation of the nation’s founding document, state courts have for many years been addressing the meaning of individual rights commitments under their own state constitutions. In many instances, these courts have concluded that these rights provisions provide individuals broader protection than would be available under the federal constitution, and in some cases provide protections with no federal equivalent.

Consider a 1972 case, San Antonio Independent School District v. Rodriguez, in which the U.S. Supreme Court concluded that the U.S. Constitution does not protect a right to public education either expressly, or implicitly within the meaning of “due process” under the Fourteenth Amendment. A majority of state constitutions contain some reference to public education, and after San Antonio, education rights advocates began addressing their arguments to state courts. Over the past 50 years, many state courts have held that their constitution guarantees children some kind of educational benefit.

Of course, as with the U.S. Constitution, questions about how state constitutional protections should be interpreted and applied have been the subject of much litigation. State constitutions, moreover, are subject to change through processes that are substantially easier to navigate than in the federal system. This means that litigation may not be the only way to solidify the protection of individual rights under a state constitution. Indeed, under most state charters, both the legislature and the citizenry may seek constitutional amendments to address unanswered questions of state law or respond to unpopular federal rulings.

We have seen examples of each of these features of state constitutional development in recent weeks. In Florida, a county judge, ruling on a challenge to a state law prohibiting choice after 15 weeks, interpreted a state constitutional provision protecting privacy to encompass a woman’s right to choose. And in New York, the state Senate passed a measure that proposes to amend that state’s constitution to protect a woman’s right to choose and to prohibit discrimination on the basis of a number of characteristics, including race, ethnicity, national origin, disability, sex, sexual orientation, gender identity and expression, and pregnancy.

Both the litigation in Florida and the proposed amendment in New York represent potential responses to the U.S. Supreme Court’s decision in Dobbs.

The ability to pursue these state-law paths flows from the constitutional separation of powers between the state and federal governments. With their status as co-equal sovereigns comes the authority of states to offset unpopular federal policies within their borders, no matter the branch of the federal government in which such policies originate. These efforts may in turn serve as models for people in other states who are similarly frustrated by these federal policies.

Notwithstanding the importance of state constitutions as a means to counter federal laws and decisions, what protections they may provide may be seen, as Erwin Chemerinsky has observed, as “a second best way to advance individual rights and liberties.” The United States today, after all, is not the nation the framers of the U.S. Constitution envisioned in 1787. “We the people” is a more inclusive term than it was at the founding, and the changes to the constitutional structure wrought by the Civil War — as well as by geographical expansion, population growth, technological developments and the nation’s ascendancy to the world stage — all emphasize the need to ensure that basic constitutional protections extend across state lines.

The day may come when a majority of the Supreme Court understands this reality. Until then, we still have state constitutional law.

Lawrence Friedman is a professor of privacy and constitutional law at New England Law in Boston and is the series editor of the Oxford Commentaries on the State Constitutions of the United States.