Why abortion fight isn’t over if Roe is overturned

Virginia Lyons has served two decades as a state senator in Vermont. For 18 of those years, she was happy with how accessible abortion services were in the state.

Now she wants to go a step further and amend the state constitution.

Abortion access is relatively unfettered in the liberal state. But after watching Republican President Donald Trump get elected in 2016, and then solidify a conservative supermajority on the U.S. Supreme Court by appointing three new justices, she thought the state needed to do more.

Her proposed amendment – which must be passed by the statehouse before going on a statewide ballot next year – would enshrine a constitutional right to abortion in the state. Vermont would become the first state to do so.

“We can all see the writing on the wall,” says Senator Lyons.

Since the Supreme Court recognized a constitutional right to abortion with its 1973 opinion in Roe v. Wade, there’s been a “continued undermining” of the right, she adds, with federal courts permitting states to slowly but steadily restrict access to abortion.

“So I felt that it was critically important to introduce this [amendment], and move the decision-making from law to constitution,” she continues.

For the first time in decades, the federal right to abortion faces an existential threat. On Wednesday, the Supreme Court will hear a case challenging a Mississippi law that bans abortions after 15 weeks of pregnancy. The law violates high court precedents protecting the right to abortion before fetal viability, generally considered around 24 weeks. But the justices have asked to hear arguments on “whether all pre-viability prohibitions on elective abortions are unconstitutional,” suggesting a majority of justices may be willing to further narrow – or perhaps even overturn – the federal right to abortion.

That’s just one of several potential outcomes in the case, Dobbs v. Jackson Women’s Health. In the rare instances the court has overturned a constitutional precedent, it has typically been to expand, not revoke, a right.

Overturning Roe would not criminalize abortion nationwide; it would just make it constitutional for states to do so if they choose. Many would. But with the U.S. Constitution supreme only when it conflicts directly with state constitutions, states would then become the surest method of protecting – or restricting – abortion rights.

In essence, a previously universal and inalienable right would become a location-dependent one. And although state governments are increasingly dominated by one party, without federal constitutional protection the abortion rights debate would inject a polarizing issue into the hitherto low-profile – but relatively volatile and unpredictable – landscape of state constitutional law.

“There would be a much greater degree of political uncertainty,” says Justin Long, an associate professor of law at Wayne State University in Michigan. “What rights exist and what don’t will be evolving and changing faster than it has at the federal level.”

“It’s normal for state constitutions and state high courts to be the site of these kinds of deep value contests,” he adds. But “there’s a dignitary harm that follows from demoting the debate to the state level, as well as the practical harm that follows from having that uncertainty.”

States as laboratories for rights

While the U.S Constitution is the supreme law of the land, functionally it sets a floor for which rights are protected from government interference. State constitutions have thus long functioned as a tool for protecting rights within states above and beyond that federal floor.

Aiding this bedrock feature of American law is the fact that state constitutions are much easier to amend than their federal counterpart. In most states, amending their constitutions requires supermajority approval from the state legislature, the governor’s approval, and ratification via a statewide vote. And 18 states allow voters to directly propose changes and ratify them at the ballot. That’s compared with the U.S. Constitution’s high bar of two-thirds approval in both houses of Congress and ratification by 38 states.

Consequently, while the U.S. Constitution has been amended just 27 times in 233 years (the last time in 1992), the average state constitution has been amended 115 times. In several instances, state constitutions have helped pave the way for the U.S. Supreme Court to enshrine rights nationally.

An overwhelming majority of state constitutions recognized an individual right to keep and bear arms, for example, before the highest court in the land did so in 2008. Many states also gave constitutional protection for same-sex marriage before the high court did in 2015.

“States preexist the U.S. Constitution, and many of them had written constitutions first,” says Emily Zackin, an associate professor of political science at Johns Hopkins University in Baltimore.

“Pieces of [the Constitution] were actually inspired by the original state constitutions,” she adds, including much of the original Bill of Rights. “As American history goes on, the development is kind of linked.”

In other instances, key “rights” within American life have been left entirely to state constitutional protection. There is no right to universal voting or education in the federal Constitution, for example, but many states have constitutional provisions explicitly protecting both.

One might think that would lead to significant state-by-state variance in how people vote or get public education – and in practice that can be the case. But all 50 state constitutions, for the most part, resemble one another.

This would likely not be the case with abortion rights, and indeed hasn’t been with other politically charged rights that don’t have robust protection under the federal Constitution. Voting restrictions vary widely across the country, for example, as do labor rights.

Twenty-seven states in the country have “right-to-work” laws, meaning workers can’t be required to join a union in order to get or keep a job. Nine states have amended their constitutions to guarantee that right, according to the National Conference of State Legislatures.

Tennessee will vote to add a similar amendment to its state constitution next year. In Illinois, voters will decide whether to do the opposite, amend its state constitution to effectively make “right-to-work” laws unconstitutional. And a similar dynamic has begun to emerge concerning abortion rights in state constitutions.

While Vermont is seeking to become the first state to amend its constitution to guarantee a right to abortion, 13 state supreme courts have interpreted their constitutions to protect abortion rights. Four states, meanwhile, have amended their constitutions to explicitly state that abortion rights aren’t protected. Two states – Kansas and Kentucky – will vote to ratify similar amendments next year.

Many Americans may prefer to have individual states determine for themselves the extent to which they want to protect abortion rights. But any rights holder “would prefer to have their rights protected by the federal Constitution than 50 state constitutions,” says Joseph Blocher, a professor at Duke University School of Law in North Carolina. 

“The relative brevity and stability of the federal Constitution lends a special cultural, and I think legal, force to the rights that it guarantees,” he adds.

The case of Kansas

Kansas offers a glimpse of the future that abortion rights could face post-Roe.

Two years ago, the state Supreme Court ruled that its constitution protects a woman’s reproductive rights. Any kind of state law limiting abortion access – including dozens of bipartisan restrictions enacted by the Legislature in recent years – was now in jeopardy. State Sen. Molly Baumgardner was one of many anti-abortion Kansans shocked into a reaction, and she began pushing for a constitutional amendment confirming that abortions rights aren’t protected in the state.

“If we were not to have [a] constitutional amendment, then all of those laws are essentially null and void,” she says.

In 2020, the amendment failed to pass the statehouse by four votes. Four moderate Republicans who voted against it lost their seats in the next election, and the reintroduced amendment successfully passed the Legislature earlier this year.

Next August, Kansans will vote whether to ratify it.

“We’re not waiting for the Supreme Court to make a ruling that may or may not impact the different laws that we do have,” says Senator Baumgardner. “We want to make sure the laws passed by those individuals duly elected by Kansans, [who] represent Kansan values, are upheld.”

Indeed, what a post-Roe landscape would certainly bring, state constitutional experts say, is intensified attention – and funding – on state politics and constitutions.

“It would make that issue salient in campaigns for state legislatures and state governors,” says Professor Long from Wayne State University. “It would definitely draw more money and attention to the races for state high court judges, which is almost never a good thing.”

State constitutional volatility may be diluted somewhat if state governments continue to be controlled by one party. Whereas there were 19 “trifecta” states in 1992 – where one party controls the entire state government: House, Senate and governor’s mansion – there are now 37.

A state government with unified policy priorities may prefer passing legislation to the relatively arduous constitutional amendment process, particularly in GOP-controlled states. But if partisan dominance continues in state governments, the abortion rights landscape may not change as often, but it would likely divide the country into pro- and anti-abortion states.

Vermont and Kansas seem to be beginning to form that landscape already.

“We don’t know what will happen at the federal level,” says Vermont state Senator Lyons. But abortion rights are “something we have all taken for granted for nearly 50 years.”

“That pretty well sums up the need,” she adds. A constitutional amendment “is not only reassuring, but it is important to do.”

Justice Ruth Bader Ginsburg, a liberal icon, once said that she thought the Supreme Court’s decision in Roe came too quickly. She would have preferred that abortion rights be secured gradually, including through state-level change, she said.

Abortions rights are now poised to make that journey, only in reverse. Absent federal constitutional protection, some states may step in to protect the right to abortion. But the right would be diluted and perpetually subject to change.

That “intuitively rubs many people the wrong way,” says Dr. Zackin, author of “Looking for Rights in All the Wrong Places: Why State Constitutions Contain America’s Positive Rights.”

But that kind of volatility has both benefits and drawbacks, she argues.

State constitutions “are more responsive to popular pressure and democracy. Majorities get their say,” she adds. But if you want certain rights protected from majoritarian influence, as America’s founders did, she continues, “a state constitution can’t do that as well.”