Scott Moss on Abortion Rights Under State Constitutional Law

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Feminist Law Professor Scott Moss has a new piece available about abortion rights under state constitutional law.   The premise, that with the ever-more-conservative Supreme Court state courts are going to be the better outlet for protecting abortion rights, echoes Justice Brennan’s 1980s call for state court protection of constitutional rights in the face of the then-newly-conservative Supreme Court.   Moss takes Brennan’s call and focuses on abortion rights litigation in this new era.   It sounds quite interesting!   The abstract is below.

As the decline of Roe v. Wade inspires renewed efforts to restrict federal constitutional abortion rights, the serious shortcomings of abortion rights advocates’ strategies for preserving such rights will become increasingly apparent. Continued reliance on Roe is likely to fail with an increasingly unsympathetic Supreme Court. Even abortion rights supporters have begun to criticize the decision for weak reasoning, which is difficult to remedy at this late stage of federal abortion jurisprudence. Moreover, although autonomy and gender equality arguments for abortion rights would improve upon Roe’s privacy rationale, such arguments would require abrogating substantial precedent and are, therefore, of limited tactical use in federal litigation.

This Article critically evaluates an emerging abortion rights strategy of relying on state constitutional law. Because Roe arrived early in the abortion debate, there is little state constitutional jurisprudence on abortion, little writing on state constitutional law on abortion, and no scholarship on the state court prospects of the autonomy and gender equality alternatives to Roe’s privacy rationale. Unlike most articles on abortion (which neglect state law) and most articles on state law (which neglect abortion), this Article will delve into various states’ constitutions in order to analyze the intersection of the two. Compared to the Federal Constitution, many state constitutions are textually broader, or evidence a broader intent, to protect autonomy or gender equality and even where state and federal provisions are identical, states might still interpret theirs more broadly. Indeed, such arguments have experienced some success where a federal right declines and a broader state ruling would preserve the right – exactly the situation facing abortion rights advocates in light of Roe’s decline. Moreover, with state constitutional law typically more sparse than federal law, arguments based on autonomy or gender equality are less likely to require abrogating precedent.

Of course, state constitutional arguments for abortion rights face significant objections: they might provide limited protections, they will fail in states with narrow constitutions or strict constructionist courts, and in most states abortion rights would be merely implied (as opposed to expressly textual), giving rise to judicial restraint arguments that enforcing implied rights is undemocratic. Yet, even an imperfect state litigation strategy may be the best option for abortion rights advocates who need to accept that the strong Roe regime is a thing of the past. Further, judicial restraint arguments are less persuasive as to state than federal rulings because in most states, voters retain some control over their judges and constitutional text; a state-federal difference often ignored by even well-informed commentators.

This shift to the states would be a strong dose of federalism, but in atypical ways. First, preserving reliance on precedent is a key reason for stare decisis, yet new state jurisprudence would be preserving rights previously protected by federal law. Second, abortion rights supporters pressing new state law would illustrate the ideological indeterminacy of federalism – popularly but inaccurately viewed as a conservative idea. Third, a federal-to-state shift would be a sort of reverse federalism, with states serving not as laboratories of democracy experimenting with policy first, but rather as repair shops of democracy, replacing a declining federal regime only after reviewing the federal experience with constitutional abortion law.

In sum, this Article aims to predict, and to be a part of, the emerging possibility of state constitutional law on abortion, which seems increasingly likely and is highly intriguing as a matter of both litigation tactics and constitutional theory.

- David S. Cohen

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