PDFJudicial Activism Also Plagues the States:

State court-created constitutional rights to abortion

 

By Clarke D. Forsythe

President, Americans United for Life

 

Since 1973, courts in an increasing number of states have manipulated their state constitutions to find abortion rights that have no basis in the history of the state or its constitution. These court decisions currently block important regulations of abortion in those states. And these decisions threaten to restrict the right of the people to self-government when Roe v. Wade1 is overturned.2

 

The U.S. Constitution contains a "supremacy clause" which declares that the federal constitution and laws, including United States Supreme Court (USSC) decisions interpreting those laws, are supreme over state law. However, court decisions by state courts may create more expansive rights under the state constitution than exist under the U.S. Constitution.3 Thus, the USSC allows state courts to create broader rights to abortion than exist under Roe v. Wade, Planned Parenthood v. Casey,4 and Stenberg v. Carhart.5 In many of these state cases, courts have manipulated privacy clauses in the state constitutions to create an unprecedented right to abortion.

 

There are at least 16 states with state constitutional rights to abortion, which would block prohibitions—and also probably some regulations—in those states. In effect, this means that state courts have invalidated under the state constitution state laws like parental consent and informed consent that the USSC has allowed under Roe v. Wade and its progeny. Only an amendment to the state constitution or an overruling decision by the state supreme court can change such state court decisions.

 

State legislators and policy groups need to monitor attempts to challenge protective legislation in state courts under the state constitution (as well as closely monitor state judicial elections and judicial appointments). When pro-abortion organizations do not think they can successfully invalidate pro-life legislation in federal court (because USSC decisions allow such regulations under the federal constitution), they will often challenge state laws in state court. The 16 states with court-created state constitutional rights to abortion are: Alaska, Arizona, California, Connecticut, Florida, Idaho, Massachusetts, Minnesota, Mississippi, Montana, New Jersey, New Mexico, New York, Tennessee, Vermont, and West Virginia.

 

Alaska:

State v. Planned Parenthood, 35 P.3d 30 (Alaska 2001); State v. Planned Parenthood of Alaska, Inc., 28 P.3d 904 (Alaska 2001) (state denial of funding for abortion violated state constitution equal protection provision); Valley Hosp. Ass'n v. Mat-Su Coalition for Choice, 948 P.2d 963 (Alaska 1997) (state supreme court recognized abortion right in Medicare access case). As of late 2007, a challenge to the constitutionality of Alaska's parental consent for abortion law was pending before the Alaska Supreme Court. State v. Planned Parenthood, No. S-11365 (argued March 2005).

 

Arizona:

Simat Corp. v. Ariz. Health Care Cost Containment Sys., 56 P.3d 28 (Ariz. 2002) (under privileges and immunities clause of state constitution, state could not refuse to pay for "medically necessary" abortions for indigent women when it funded other abortions).

 

California:

Am. Acad. of Pediatrics v. Lungren, 940 P.2d 797 (Cal. 1997) (state constitution protects right to abortion, holding parental consent law unconstitutional under state constitution); Comm. to Defend Reprod. Rights v. Myers, 625 P.2d 779 (Cal. 1981) (struck down budget regulations restricting funding of abortions).

 

Connecticut:

Doe v. Maher, 515 A.2d 134 (Conn. Super. Ct. 1986) (overturned regulation that put limits on state-funded abortions).

 

Florida:

N. Fla. Women's Health Serv. v. State, 866 So.2d 612 (Fla. 2003) (parental notice law unconstitutional under state constitution, but overturned by November 2004 ballot initiative and subsequent legislation implementing a parental notice law); In re T.W., 551 So.2d 1186 (Fla. 1989) (holding state parental consent statute unconstitutional under state constitution). See alsoRenee B. v. Fla. Agency for Health Care Admin., 790 So.2d 1036 (Fla. 2001) (held that "rules banning public funding of most abortions did not violate the privacy clause of the Florida constitution, as the state was not placing obstacles in the path of a woman's exercise of her freedom of choice by declining to fund that choice").

 

Idaho:

Roe v. Harris, 917 P.2d 403 (Idaho 1996) (allowing attorneys fees for prevailing plaintiff in litigation invalidating state abortion funding restrictions for state constitutional and statutory reasons).

 

Massachusetts:

Moe v. Sec. of Admin. & Fin., 417 N.E.2d 387, 399 (Mass. 1981) (struck down state abortion funding restriction under due process clause of state constitution). See also Kudish v. Bd. of Registration in Med., 248 N.E.2d 264, 266 (Mass. 1969) (state law allows abortion for "life or health" by judicial interpretation).

 

Minnesota:

Women of the State of Minn. by Doe v. Gomez, 542 N.W.2d 17 (Minn. 1995) (right of privacy in Minnesota state constitution includes right to abortion). 

 

Mississippi:

Pro-Choice Miss. v. Fordice, 716 So.2d 645, 653 (Miss. 1998) (state constitution's right of privacy includes "an implicit right to have an abortion," but upheld state informed consent law, 24-hour waiting period, and two-parent consent law).6

 

Montana:

Armstrong v. State, 989 P.2d 364 (Mont. 1999) (woman's right to obtain a pre-viability abortion protected under Montana constitution).

 

New Jersey:

Planned Parenthood v. Farmer, 762 A.2d 620 (N.J. 2000) (state parental notification statute unconstitutional under state constitution's equal protection clause); Right to Choose v. Byrne, 450 A.2d 925 (N.J. 1982) (state restriction on Medicaid funding violated state constitution).

 

New Mexico:

N.M. Right to Choose/NARAL v. Johnson, 975 P.2d 841 (N.M. 1998) (state rule denying payment for "medically necessary" abortions under state Medicaid program violated Equal Rights Amendment of NM Constitution), cert. denied, 526 U.S. 1020 (1999). See also N.M. Right to Choose/NARAL v. Johnson, 986 P.2d 450 (N.M. 1999).

 

New York:

Hope v. Perales, 634 N.E.2d 183 (N.Y. 1994) (due process provision in state constitution protects right to abortion).

 

Tennessee:

Planned Parenthood of Tenn. v. Sundquist, 38 S.W.3d 1 (Tenn. 2000) (abortion is a fundamental right under the state constitution, requiring strict scrutiny).

 

Vermont:

Beecham v. Leahy, 287 A.2d 836 (Vt. 1972) (established state constitutional obstacle to state abortion regulations).

 

West Virginia:

Women's Health Ctr. v. Panepinto, 446 S.E.2d 658 (W. Va. 1993) (state failure to fund abortion violates state constitution).

One other state court decision deserves notice: In Oregon, Planned Parenthood Assn. v. Dep't of Human Res., 687 P.2d 785 (Or. 1984) (dealt with funding abortions, but was decided on administrative law grounds, not constitutional grounds).

 

Courts in other states have rejected the claim that the state constitution contains a right to abortion or have postponed the issue to a future day: Clinic for Women, Inc. v. Brizzi, 837 N.E.2d 973 (Ind. 2005) (upheld Indiana informed consent for abortion statute but did not definitively decide whether state constitution contains right to abortion); Mahaffey v. Attorney Gen., 564 N.W.2d 104 (Mich. Ct. App. 1997), review denied, 616 N.W.2d 168 (Mich. 1998); Pre-term Cleveland v. Voinovich, 627 N.E.2d 570, 575 (Ohio Ct. App. 1993).

 

These 16 states cited represent nearly a third of the states. Nominations or appointments to state supreme courts are as important to self-government as nominations to the USSC. It may be relatively easier to prevent such decisions in other states than to overturn them (by state constitutional amendment or reversal by the state supreme court) after the fact.

 

Endnotes

1 410 U.S. 113 (1973).

 

2 See generally, Paul Benjamin Linton, Enforcement of State Abortion Statutes After Roe: A State-by-State Analysis, 67 U. Det. L. Rev. 157, 161 (1990).

 

3 Jankovich v. Ind. Toll Road Comm'n, 379 U.S. 487 (1965); Lynch v. New York, 293 U.S. 52 (1934).

 

4 505 U.S. 833 (1992).

 

5 530 U.S. 914 (2000).

 

6 Fordice was cited and understood by the Indiana Supreme Court as holding that the "state constitutional right of privacy . . . includes ‘an implied right to choose whether or not to have an abortion.'" Clinic for Women, Inc. v. Brizzi, 837 N.E.2d 973, 987 (Ind. 2005).