A Forgotten Battleground

In Roe v. Wade and Doe v Bolton, twin cases decided the same day in 1973, the Supreme Court held that the federal Constitution granted a woman a right to abortion. In doing so, the Court overruled laws prohibiting or limiting abortion then in force in almost every state and, in effect (through the “health exception”), required states to allow abortion throughout pregnancy. 

In the immediate aftermath, but continuing until today, those seeking to protect the fundamental right to life of the unborn (and the health of women exploited by the abortion industry) have sought for a way to “reverse Roe.” Some strategies sought to amend the Constitution either to make it clear that it did not provide for abortion, or expressly to leave the issue to the states to decide. 

While those efforts did not succeed, many current strategies focus on the Supreme Court itself, seeking to confirm justices to the Court who understand that the Constitution does not provide a right to abortion under either an implied privacy right or a mystical liberty interest.  Some strategies seek to bring future “test cases” to the Court, to widen the narrow margin opened by the Court in Gonzales v. Carhart in 2007, which upheld the Partial Birth Abortion Ban Act and seemed to allow legislatures to make laws on disputed abortion-related issues. (We will see in future cases if the Court meant what it seemed to say.)  

All these strategies focus on the national level.  They seek to “reverse Roe” itself, that is, they seek to ensure that there is no federal constitutional “right” to abortion.  I personally have no doubt that they will one day succeed, that is, one day the United States Supreme Court will overrule Roe and Doe (if not in one case, then in a series of cases). 

But what then?  Pro-life forces will likely move for either a federal law or a constitutional amendment protecting life (just as you may be certain that anti-life forces will move to ensure a federal right to abortion).   

The fight to end abortion in the United States, however, cannot be restricted to the federal Constitution and the U.S. Supreme Court. State law and legislation also pose significant challenges. In the wake of Roe and Doe, a number of states changed their abortion prohibitions to abortion regulations, in other words, accepting abortion as a legal – if restricted – right. State courts also built upon Roe’s foundation and overturned many legislatively enacted limitations on abortion.  

Sixteen states in particular face a greater battle in the fight against abortion than their fellows. This is an underappreciated aspect of the challenge we face.  The courts of Alaska, Arizona, California, Connecticut, Florida, Idaho, Massachusetts, Minnesota, Mississippi, Montana, New Jersey, New Mexico, New York, Tennessee, Vermont, and West Virginia have found abortion to be a right protected by the state constitution.

These court decisions protect abortion as much or to a greater extent than it is protected under Roe and Doe.  Some courts, like those of Alaska, rely on an explicit privacy grant in the state constitution to uphold abortion as a favored right. Other states, like Tennessee, have broadened the scope of their privacy clauses and found that abortion is fundamental to the idea of ordered liberty.  

These sixteen state constitutional protections have been used to overturn parental notification and consent statutes, remove prohibitions on abortion funding, and prohibit legislation mandating a waiting period before procuring an abortion. Unlike states whose legislatures enacted abortion regulations, which can be repealed by the normal legislative process, the laws in these sixteen states can be “overruled” only by either a state supreme court decision or a state constitutional amendment.

Thus, if neither occurs, the state constitutions of these sixteen states would continue granting “abortion rights” even after Roe and Doe are reversed.

Therefore, an important part of the effort to build a culture of life is to reverse these state supreme court decisions.  And it is in this context, that I am happy to report a recent success in Tennessee. 

In May, the Tennessee legislature approved a referendum for the 2014 ballot that will allow the citizens – not the courts – to determine what the state constitution says about abortion.  The referendum reads: “Nothing in this Constitution secures or protects a right to abortion or requires the funding of an abortion. The people retain the right through their elected state representatives and state senators to enact, amend, or repeal statutes regarding abortion, including, but not limited to, circumstances of pregnancy resulting from rape or incest or when necessary to save the life of the mother.”  

We must hope and pray the referendum succeeds.  Though the referendum will encounter strong opposition from anti-life organizations, its mere existence highlights opportunities to challenge state court decisions through the legislative process and, ultimately, by the people themselves.

If the referendum is successful in Tennessee, it will not only give back to the people of that state the opportunity to determine how abortion will be handled, but will create momentum do so in the other fifteen states as well.  Doing so is an important part of our effort to build a culture of life in all fifty states, unfettered by either state or federal judicial activism. 

It is good that Tennessee has started this massive ball rolling. 

William Saunders

William Saunders is Senior Vice President of Legal Affairs at Americans United for Life. A graduate of the Harvard Law School, he writes frequently on a wide variety of legal and policy issues.