In 2000, the Tennessee Supreme Court ruled that a woman's decision to have an abortion is "a vital part of privacy guaranteed by the Tennessee Constitution."įourteen years later, Tennessee voters approved a constitutional amendment that says, “Nothing in this constitution secures or protects a right to abortion or requires the funding of an abortion."Īs for abortion rights groups, many say they're not putting all their eggs in the legal basket. "Carving out protection (for abortion rights) is a possibility in a place like Michigan," Ziegler said.įorsythe, of the Americans United for Life, said efforts to get state supreme courts to recognize the right to abortion could backfire, as one did in Tennessee. In anticipation of Roe's repeal, Planned Parenthood in April challenged an unenforced, pre-Roe ban on abortion that could go into effect after the Supreme Court ruling comes down.Ī local judge last month issued an injunction against its enforcement, saying abortion is protected under the state constitution. The state Supreme Court has four elected Democratic justices and three appointed Republican members. The Midwestern state of Michigan could go the other way, Ziegler said. "And so, we're likely to see in that state the door open to much more sweeping restrictions," Ziegler said. But Ziegler said Republican Governor Ron DeSantis has transformed the court with conservative appointments. In 1989, the Florida Supreme Court recognized abortion as a fundamental right under the state constitution. Take Florida, where Planned Parenthood recently mounted a constitutional challenge to the state's recently enacted 15-week ban on abortion that is set to take effect July 1. Ziegler, of UC Davis, said the outcome of the state court cases is far from certain and would depend in large part on the composition of a given state's supreme court. "In states where we've identified a path to challenging abortion bans with our local partners, I think we can expect to see challenges filed following the issuance of any Supreme Court decision that would overturn Roe,” she said, without naming the states. These provisions have been interpreted by some state supreme courts in recent decades to uphold abortion rights.īurrows said the ACLU is “investigating each state constitution to get a sense of the claims that we could bring." To be sure, legal challenges won't be feasible in every state, experts and advocates say.Įleven states, including Florida, have the right to privacy enshrined in their constitutions, while several others, such as Arizona, have equal protection clauses. ![]() "Obviously, the stakes will be higher because it won't be as a sort of supplement to federal protections," Ziegler said. ![]() But with abortion rights no longer protected under the federal constitution, their focus would now shift to state courts. In recent decades, abortion rights groups have mostly turned to federal courts to block new state laws restricting the procedure. "But I think at the end of the day, only perhaps a handful or less may create a state right to abortion," Forsythe said in an interview. Part of the ACLU's legal strategy would be to challenge abortion bans in state courts, Burrows said.Ĭlarke Forsythe, senior counsel with Americans United for Life, an anti-abortion group, said he expects legal challenges in two to three dozen states over the next couple of years. Anti-abortion demonstrators celebrate outside the United States Supreme Court as the court rules in the Dobbs v Women’s Health Organization abortion case, overturning the landmark Roe v Wade abortion decision in Washington, U.S., June 24, 2022.
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