In a series of decisions over the past three decades, the Supreme Court has seriously undermined Roe v. Wade's promise of full and meaningful federal constitutional protection for women's access to abortion. While the new Obama administration will enhance protection for reproductive rights at the federal level, the reality remains that reconstituting the Supreme Court with a majority of Justices amenable to fully restoring Roe's strict protections will likely take many years. This Article considers whether state constitutions are a promising avenue for enhancing protection for abortion rights.
This Article looks back on thirty years of reproductive rights litigation under state constitutions to evaluate the strategy of using state constitutions to advance protection for abortion rights. Part I of the Article provides an overview of the major jurisprudential developments on abortion at the federal level, highlighting the steady erosion of protection under the Due Process Clause of the Fourteenth Amendment and the multiple obstacles to successful legal challenges under current law. Part II reviews the sources of protection for abortion rights available under state constitutions and describes the history of reproductive rights litigation in the state courts, highlighting both selected state court decisions that have provided expansive protection for abortion rights and those that have not. Part III evaluates the advantages and drawbacks of a state constitutional law litigation strategy and offers suggestions for future reproductive rights litigation in the state courts. The Article concludes that state constitutions are playing an important role in safeguarding abortion rights in individual states in an era of diminished federal constitutional protection and hold promise for influencing a return to expanded protection at the federal level. Although independent state constitutional adjudication is not without limitations and pitfalls, it offers a fruitful alternative venue for continued litigation as one component of a broad-based strategy that includes litigation in federal courts, legislative advocacy, public education, political action, and grass roots organizing.