Abortion and Original Jurisdiction

Whether the justices meant it or not, one claim of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health was that the issue of abortion should be returned to the states. But what does it mean to return an issue to the states? There isn’t one clear answer to this question. Instead, the decision left the issue to myriad state and local political processes.

Two of those processes engage state supreme courts sitting in their original jurisdiction — that is, higher courts’ authority to hear and decide cases directly without requiring them to first go through lower courts. How supreme courts rule on challenges to both state abortion laws and abortion-related ballot measures will determine the fate of reproductive rights in some states, and they reveal something about how our system of federalism works (or doesn’t).

Original Jurisdiction 

As I have discussed previously, state supreme courts routinely decide cases of public importance in their original jurisdiction. Most of the work of state supreme courts is in their appellate jurisdiction, when they review decisions of lower courts on appeal. But supreme courts also may be authorized to exercise original jurisdiction, where they sit as courts of first instance, hearing cases directly filed in the high court. 

In a new article, I surveyed the constitutional and statutory law of original jurisdiction in state supreme courts, including recent cases and legislation. Among the findings are that state supreme courts frequently hear cases of public significance in their original jurisdiction. Sometimes these cases will be within specific grants of original jurisdiction, such as jurisdiction over challenges to ballot initiatives. Other times these cases will be under broader grants of original jurisdiction, such as jurisdiction to hear petitions for certain types of court orders (such as the writ of mandamus).

Abortion and Original Jurisdiction

The most direct way that state supreme courts engage with abortion is in cases seeking to challenge state laws regulating abortion. Though not all these cases are original actions, many have been. And those cases reflect the different ways state courts can engage with the issues as well as the different ways original jurisdiction can work.

The Supreme Court of South Carolina, for example, heard an original-jurisdiction challenge by Planned Parenthood and its allies to the state’s near-total ban on abortion. In January, the court held the ban unconstitutional under state law. But then in late August, after a switch in court personnel, the court approved an updated version of the state’s abortion ban. Back on the same day as the first South Carolina decision, the Idaho Supreme Court went the other way, upholding its state’s law, also in an original action. In two original actions, the Oklahoma Supreme Court held that the state’s constitution protected a limited right to abortion. And in Ohio, the supreme court exercised its discretion — common in original jurisdiction — to decline to hear a case raising issues of abortion rights.

The discretion relied upon by the Ohio Supreme Court is common for many grants of original jurisdiction in state supreme courts. The Oklahoma court in one of the abortion decisions expanded on why it chose to exercise jurisdiction, and its reasoning is consistent with the law in many states:

Two themes run through most cases where original jurisdiction has been assumed: 1) the matter concerns the public interest, i.e., the case is publici juris in nature; and 2) there must be some urgency or pressing need for an early decision. Here there is no question whether the matter is publici juris in nature, dealing as it does with laws that affect the right of a woman to terminate a pregnancy. We also believe there is a pressing need to rule on this matter as soon as possible due to the many challenges to laws which affect abortion following the recent Dobbs opinion and their effects on the people of this state.

Abortion, Elections, and Original Jurisdiction

Abortion also has come to state supreme courts in original actions related to elections. My study of original jurisdiction found that more than half of the states authorize original jurisdiction for some aspect of election law, and others can hear election-related challenges under a broader grant. A common use of these powers relates to proposed initiatives and referenda.

Around the country, abortion has been put on the ballot — sometimes by abortion rights supporters, sometimes by those seeking to restrict abortion. Shortly after Dobbs, Kansas voters rejected a proposed constitutional amendment that would have severely restricted abortion in the state. Meanwhile, supporters of abortion rights have sought to put abortion on the ballot in states where those rights are potentially more popular than the legislative process might suggest.

In Michigan, abortion rights supporters put forward a ballot proposal for the November 2022 election to protect abortion in the state. Opponents challenged the petition on the grounds that the petition circulated did not include sufficient space between the words. The board of elections deadlocked on the issue, so challengers went to the state supreme court in its original jurisdiction. The supreme court rejected the challenge, over two dissents. In a separate opinion, Chief Justice Bridget Mary McCormack referred to the challenge as “a game of gotcha gone very bad” and “a sad marker of the times.”

In Ohio, abortion rights supporters also proposed a state constitutional amendment protecting the right to abortion. The state agreed to put the amendment on the ballot, but opponents filed multiple challenges, again in the original jurisdiction of the state supreme court. One challenge claimed the proposal violated the rule limiting petitions to a single subject. The other claimed that the initiative failed to properly specify the existing language that would be amended. The state supreme court rejected both challenges. Meanwhile, the Ohio legislature unsuccessfully tried to change the rules for constitutional amendments to make it more difficult for this one to pass.

Finally, in Texas, a proposed amendment to the San Antonio city charter sought to limit prosecutions related to abortion, among others. Challengers sought to keep it off the ballot using various procedural arguments, including the single-subject rule and the claim that the language was misleading. The state supreme court, in its original jurisdiction, rejected these challenges, though the ballot measure ultimately failed.

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What should we make of these original actions in state supreme courts?

One takeaway is that “returning abortion to the states” is not the same as “returning abortion to the people.” States make policy through all sorts of means, including through their courts. In Idaho, Ohio, Oklahoma, and South Carolina, that included parties seeking original jurisdiction in the state supreme court.

A return of abortion to the states thus subjects it to all sorts of political pathologies that have developed in state systems of government. Those pathologies include, in my view, the making of policy through means (such as original actions) that are not easy for the public to parse.

Even in states where abortion seems to be subject to popular will through the ballot box, the state political process plays a role. In Michigan, Ohio, and Texas, the state supreme courts heard original actions that sought to short-circuit the ballot. The single-subject rule, which has progressive roots, can be an obstacle to popular efforts to change the law. And technicalities such as the spaces between words can be, in the hands of partisan actors, back doors to regressive action.

These cases also offer guidance, or warning, to progressive activists who see elections as the best way to secure important rights. The ballot box has its gatekeepers, and they have a range of procedural tools they can use to keep the gates. The argument about insufficient spaces between words might seem absurd, but it split the board of elections and secured two votes on the state supreme court. A different court could have gone the other way.

For better or worse, state courts are in the game. And in any game, the rules matter.

Zachary Clopton is a professor of law at Northwestern Pritzker School of Law.

The views expressed are the author’s own and not necessarily those of the Brennan Center.