State courts from Oregon to Georgia will now decide who – if anyone – can get an abortion under 50

State supreme courts have a relatively low profile in the US. That’s going to change now that they will be under political pressure to decide whether abortion is protected in state constitutions.

By Stefanie Lindquist Published on Jun 24, 2022.
Temporary security fencing surrounds the U.S. Supreme Court building, ahead of its decision on abortion. Stefani Reynolds/AFP via Getty Images

The U.S. Supreme Court overturned Roe v. Wade and Planned Parenthood v. Casey on June 24, 2022, ruling that there is no constitutional right to abortion.

“The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives,” Justice Samuel Alito wrote in the majority opinion.

This means that state laws, rather than federal law, will now determine whether someone can legally get an abortion. It also means that state supreme courts will become much more important in deciding the validity of state laws on abortion.

Without the federal constraint of the Roe v. Wade precedent, state legislatures will be free to craft their own abortion regulations, subject only to each state constitution.

State supreme courts play a key role in ensuring that state laws are legal, aligned with individual state constitutions. But their key role is often overshadowed by public attention on major federal courts – especially the U.S. Supreme Court.

As a scholar of constitutional law, I believe that the overruling of Roe v. Wade is a chance to better understand the important role state supreme courts play in determining individual rights, including abortion rights.

Now that the court has overturned Roe v. Wade, there’s likely to be a flood of litigation in the state courts, as people try to invalidate state laws on abortion.

A man holds a sign that says pray to end abortion and dismantle Roe outside the gated Supreme Court
An anti-abortion demonstrator prays in front of the U.S. Supreme Court building on June 21, 2022. Stefani Reynolds/AFP via Getty Images

The power of state supreme courts

Supreme Court Justice Samuel Alito’s leaked draft opinion on abortion in May 2022 focused public attention on the importance of state legislation regulating or banning abortion.

The laser focus on state legislation, however, neglects how abortion rights will now be decided at the state level – not in statehouses, but in state courts. This is because state courts have the power to declare state laws unconstitutional if they are inconsistent with state constitutions.

“Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. The Court overrules those decisions and returns that authority to the people and their elected representatives,” Alito wrote in the June 24 opinion.

State supreme court judges are selected in different ways, depending on the state. While judges are directly elected by voters in Georgia, Nevada and Oregon, for example, governors appoint state supreme court judges in states that include Maine and Massachusetts. These judges can serve anywhere from six years to no fixed term, aside from expected retirement at the age of 70.

My own research indicates that elected state judges tend to find state laws unconstitutional more often than appointed state judges do. Nevertheless, in the context of abortion, elected court judges have to answer to their constituencies. In conservative states, that means they may be more hesitant to invalidate restrictive abortion laws under their state constitutions.

A large court building is shown in front of blue skies with pillowy clouds
The Florida Supreme Court building in Tallahassee is pictured in 2018. Mark Wallheiser/Getty Images

Variation in protection

State constitutions vary considerably in how they protect people’s individual rights, like freedom of speech or the right to privacy. One element of privacy rights is the right to get an abortion – as the Supreme Court inferred when it upheld abortion in 1973 and linked the two issues.

Often, state constitutions protect individual rights that are not included in the federal constitution. Privacy rights, for example, are not mentioned in the U.S. Constitution but are spelled out in a number of state constitutions.

Many state courts can look to state constitutions that more explicitly reference privacy or that include other provisions that protect rights in ways not paralleled in the U.S. Constitution.

At present, only 10 state supreme courts, including those in Massachusetts, Kansas and California, have determined that their constitutions protect the right to get an abortion. But it is likely that this issue will be presented to more state supreme courts following the demise of Roe.

State abortion laws

Some state supreme court decisions protecting a right to abortion have generated backlash. In 2019, for example, the Kansas Supreme Court ruled that a person’s decision to end a pregnancy is legally protected under the state constitution.

Anti-abortion groups are now trying to undo this precedent and amend the constitution to allow for new laws that would restrict abortion. Kansas residents will vote on this issue in August 2022.

Two other state legislatures – Tennessee and West Virginia – passed similar constitutional amendments in 2014 and 2018 to invalidate previous state court decisions that protected abortion rights.

With the demise of Roe, there will be more pressure to introduce new state constitutional amendments that would invalidate state court decisions on abortion.

A person in white pants streaked with red on the inside is handcuffed to a fence outside the Supreme Court. Police are seen removing their handcuffs.
Police detain a pro-choice demonstrator after they handcuffed themself to the security fencing outside of the Supreme Court on June 21, 2022. Stefani Reynolds/AFP via Getty Images

The way forward

There will also be more pressure on state supreme courts.

The Iowa state supreme court, for example, reversed its own 2018 ruling on June 17, 2022, deciding that the state constitution does not protect abortion rights.

Florida’s state supreme court is also considering whether it should uphold the state’s recently enacted ban on abortion after 14 weeks of pregnancy.

As U.S. Appeals Court Judge Jeffrey Sutton has observed, state and federal constitutions “give surprisingly different answers” to many issues involving individual rights, including abortion.

State-level litigation, as well as legislation, will shape reproductive rights now that Roe is eliminated.

Stefanie Lindquist does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.

Read These Next