State court protection of reproductive rights: the past, the perils, and the promise.

• Author: Johnsen, Dawn
• Position: Marriage Equality and Reproductive Rights: Lessons Learned and the Road Ahead

1. Introduction

   In the United States constitutional system, the protection of individual rights depends upon the federal and state judiciaries. The role of the federal courts in protecting reproductive rights provides a particularly well known, if controversial, example. Roe v. Wade is among the most widely recognized of all judicial decisions. (1) The U.S. Senate, for example, routinely questions Supreme Court nominees about their views on Roe, as well as Roe's principal precedent, Griswold v. Connecticut. (2) Although the Supreme Court's invalidation in Roe of Texas's criminal abortion ban continues to be debated, Griswold's invalidation of a Connecticut law that made it illegal for even married couples to use contraception stands as a pillar of modern constitutionalism. (3)

   The courts of the fifty states also possess broad authority to safeguard or diminish reproductive autonomy and, as a consequence, the status of health care, reproductive justice, and the well-being of women, children, and families in their jurisdictions. State courts interpret the meaning of state laws--constitutional provisions paramount among them--that may provide greater protection for individual rights than the federal Constitution. The movement for marriage equality provides a powerful and related example: the first states to allow couples of the same sex to marry did so only after a state court interpreted a state constitutional guarantee to require what increasingly is recognized as a matter of right. (4)

   Americans regularly have battled governmental intrusions on their reproductive rights in state as well as federal courts, dating back to when not only abortion and contraception were illegal, but so, too, was the distribution of information about how to prevent unintended pregnancy. (5) Now, more than forty years after Roe and fifty years after Griswold, state courts are as important as at any time since those landmark decisions. Overlapping factors converge to create special urgency for attention to state courts. A brief review of five such factors helps situate this Essay's analysis of the contemporary relevance of state courts to the fight for reproductive justice.

   First, this is a time of heightened threat to the availability of legal abortion services, which diminishes the effectiveness and availability of women's health care services more generally. (6) Several facts illustrate this trend:

   * State legislatures enacted more abortion restrictions in the last three years (2011-2013) than in the previous decade. (7) * Between 2000 and 2013, the proportion of women living in states hostile to abortion rights nearly doubled, from 31% to 56% (as measured by the Guttmacher Institute). (8)

   * The number of abortion providers in the United States has fallen over 40% since 1982 (9) and has declined 4% between 2008 and 2011 alone; 89% of all United States counties lack an abortion clinic. (10)

   * The number of providers will continue to fall from 2011 levels unless courts enjoin new restrictions, as illustrated by the situation in Texas where in 2014 the number of clinics shrunk from forty-one to nineteen and threatened to fall to seven. (11)

   * In six states, only a single clinic remains open in the entire state, (12) placing them at special risk of soon becoming, as abortion opponents describe their aspiration, "abortion free." (13)

   Second, women increasingly depend upon state courts not only to protect their rights to terminate pregnancies but also to safeguard their liberty, equality, and dignity during pregnancy. The assault on reproductive rights seeks broadly to define fertilized eggs, embryos, and fetuses as persons possessing rights independent of pregnant women. (14) National Advocates for Pregnant Women has documented hundreds of instances since Roe in which states have used criminal and civil law in efforts to specially punish or control women because they had an abortion, experienced a miscarriage or stillbirth, or engaged in behavior a prosecutor or physician deemed harmful to embryonic or fetal development. (15) Women have been subjected to arrest, criminal prosecution, incarceration, civil commitment, and forced medical treatment. Broad definitions of personhood that encompass fertilized eggs also threaten women's access to the most effective and personally appropriate methods of contraception. (16) Because these misguided efforts are actually detrimental to healthy pregnancies, leading medical associations have joined in opposition to what the New York Times recently condemned as "criminalizing expectant mothers." (17)

   Third, in the years since Griswold and Roe, the federal courts have become far less hospitable to the protection of reproductive rights. Ultimately, rights related to pregnancy should be protected at the federal level and not vary state-by-state. However, a long-term partisan effort to overrule Roe has rendered the federal courts more likely to uphold governmental restrictions and intrusions. Forty years ago abortion was not a partisan issue: Roe's seven-Justice majority included five Republican-appointed Justices. (18) But beginning in 1980, the Republican Party platform has stated: "We will work for the appointment of judges at all levels of the judiciary who respect traditional family values and the sanctity of innocent human life." (19) As of 2014, Republican presidents have appointed twelve of the last sixteen Justices to the U.S. Supreme Court. (20) The present Roberts Court is sharply divided, with the five Republican appointees supportive of abortion restrictions that the Court previously held unconstitutional. (21)

   Fourth, coinciding with the increased need for state court protection, opponents of Roe have ramped up efforts to populate state courts with like-minded judges. These efforts are supported by the launching of the Republican State Leadership Committee's state-focused "judicial fairness initiative" (22) and take two principal forms. (23) As at the federal level, some state Republican Party platforms expressly call for the selection of judges who oppose Roe, and state anti-abortion organizations regularly target particular judges and nominees. This tactic became well known in the related issue of marriage equality when self-described "pro-family" organizations targeted for electoral defeat state court judges who had held that prohibitions on the ability of same-sex couples to marry violated state constitutional protections. (24) An emerging, second form of activism opposes entire systems of judicial selection viewed as interfering with the ability to select judges based on prospective judges' opposition to reproductive rights. In the last few years, anti-abortion organizations in Ohio, Pennsylvania, Minnesota, and Tennessee have opposed judicial selection systems premised on consideration of judicial candidates' merit, in favor of systems of direct elections in which they can "hold accountable" "elitist" judges who protect reproductive rights. This move against merit selection has profound implications for the full range of issues that come before state courts: the rights of criminal defendants, the indigent, persons of color, and corporations, to name a few of the most affected. Making judges stand for election exposes them to mounting general threats to elections and democracy--encouraged by recent decisions of a U.S. Supreme Court closely divided on the same partisan lines as in the abortion decisions. (25) Unprecedented levels of money in politics and new barriers to voting will disproportionately disadvantage and disenfranchise those who lack the resources and practical ability to take equal, effective part in American politics. These are the same individuals who tend to be especially harmed by abortion and pregnancy-related restrictions and most in need of judicial protection.

   A fifth factor contributing to the urgent need for state court independence is public opinion. Although a majority of Americans support Roe and oppose criminal abortion bans, (26) many current forms of abortion restrictions were specially designed to attract majority support by disguising their true nature and purporting to protect women's health. (27) Moreover, the harms and indignities of abortion restrictions, today and pre-Roe, fall disproportionately on women who lack the resources to overcome them: poor women, young women, women of color, immigrant women, and women who reside in rural areas or in the middle of the country or the South, in "red" or "purple" states with ideologically conservative politics. (28) To protect and realize reproductive justice, all persons--regardless of personal identity, race, economic status, or geography--must be able to access and freely choose reproductive healthcare, which in turn depends, in part, upon the judiciary. (29) Judges, of course, are obligated to protect rights regardless of local political sentiment. At the same time, judges--especially elected judges, dependent on votes, endorsements, and campaign contributions--typically do not stray far from public opinion.

   Two examples help show how these five factors converge. The connections between money in politics and reproductive rights can be seen in the enterprise of Indiana lawyer James Bopp. (30) Bopp is a principal architect of current efforts to use the First Amendment of the U.S. Constitution to invalidate regulations imposed on campaign contributions and increase the amount of money in politics--including in the selection of state judges. (31) Not entirely coincidentally, "the man behind Citizens United" (32) has also, for thirty-six years, served as general counsel to the National Right to Life Committee and has helped craft a strategy to gut Roe. Bopp believes Roe should be overruled but recognizes that an express overruling is unrealistic at this time. He instead endorses making abortion unavailable, state-by-state, through cumulative restrictions that shut down clinics and otherwise make...