A Conversation About Abortion Rights and the Future of State Constitutions

Reflecting on 2023 — the year State Court Report launched — one highlight was a panel on the state of reproductive rights litigation in the post-Dobbs era, organized by the Brennan Center and NYU Law’s Birnbaum Women’s Leadership Center. The panel, which took place on September 19, 2023, was the first in a series of State Court Report events. We’ll hold several events centered on state constitutional development throughout 2024, including a symposium entitled The Promise and Limits of State Constitutions on February 8 and 9 at NYU Law School, in partnership with the NYU Law Review. 

The September panel included former North Carolina Supreme Court Chief Justice Cheri Beasley; David Cohen, a reproductive rights scholar at Drexel University; and Alicia Bannon, the director of the Judiciary Program at the Brennan Center and editor in chief of State Court Report. It was moderated by Emily Bazelon, staff writer at the New York Times Magazine and Truman Capote Fellow for Creative Writing and Law at Yale Law School. 

Below is a transcript that provides excerpts from the discussion. It has been edited for length and clarity.

View the full video of this event here.

Emily Bazelon: Good evening to everyone. I’m sure it will not be news to many people that there is a new conservative majority on the United States Supreme Court, and I think the country is in a moment of prolonged adjustment to what that means. One of the obvious consequences is that the Court is less interested than some past courts have been in protecting people’s rights through the federal Constitution. And nowhere has that been more true than in the area of reproductive rights.

When we go back to June 2022 with the Court’s decisions in Dobbs, we see an earth-shattering event, the loss of a constitutional right to abortion that has had all kinds of aftershocks. And one of them has been the increasing importance of state constitutions and state courts and other state processes like ballot measures. I’m excited to talk about these issues tonight with our three panelists.

David, can you walk us through the landscape for state litigation about abortion rights post-Dobbs?

David Cohen: State constitutions and state courts have been important in abortion for decades. There have been cases in state courts way before the Supreme Court overturned Dobbs, even when there was a constitutional right under the federal Constitution to abortion. And those cases have paved the way for increased access in many states around the country. For instance, decisions from the Kansas Supreme Court, Minnesota, New Mexico, and New Jersey Supreme Courts, have been important in the past and continue to be important today.

But we’re seeing a broadening of the landscape of state courts and state constitutions that matter post-Dobbs, because now that the federal option has been closed off, at least under the same theory as Roe v. Wade, litigants are going into state court to make the same claims as in Roe or novel new claims under new theories to try and protect either the broad abortion right or a narrower right in some circumstances.

And we’ve seen some surprising and some not at all surprising outcomes. For instance, in the surprising outcome category, we’ve seen the supreme courts of Oklahoma and North Dakota both find a narrow right to abortion under their state constitutions for people who are experiencing life-threatening pregnancies. Again, that’s narrow, but it’s from states that people might not otherwise think are going to protect abortion rights.

We’ve seen lower courts in Wyoming and Utah that have found that restrictions in those states go too far and have kept abortion legal in those states even post-Dobbs. And those are two states that if you looked at many of the pre-Dobbs maps, people would say those are the states where there’s going to be an abortion ban in effect pretty soon after Dobbs.

But then we’ve seen some states that do the complete opposite. In South Carolina, the state supreme court in early 2023 found that the state’s six-week abortion ban was unconstitutional under the state constitution. But then a justice, the only woman on the court, retired. She was replaced by an anti-abortion justice. The case was reheard by the South Carolina Supreme Court and [it] allowed that abortion restriction to go into place. And that has decreased access to abortion in the South.

We’re waiting on decisions from several important state supreme courts with respect to abortion bans. Florida has been a state where a lot of people in the South have fled to get an abortion because of the decreased availability. Abortion has increased drastically in Florida, but there’s a 15-week ban that is currently before the Florida Supreme Court. If the 15-week ban is allowed to go into effect, a six-week ban will then take effect as the legislature has said.

And then I just want to flag one other type of case, and these are cases before the Missouri and Ohio state supreme courts that are dealing with abortion-related referenda. Those referenda are going to be on the ballot in Ohio in November and probably next year in Missouri. And the state courts have been intimately involved in protecting that process and guaranteeing that process is fair and in compliance with the state law. So we’ve got a lot of different types of state litigation in state courts and very active state supreme court justices deciding these key issues post-Dobbs.

Emily Bazelon: Thank you for that. Reminds me that I think one of the reasons that state courts and state processes generally don’t get as much attention is just that you have to keep track of more moving pieces. Chief Justice Beasley, [I’d like to know] how you think about precedent. To return to South Carolina, we have their decision at first from the South Carolina Supreme Court that was relatively protective of abortion rights. Then the court’s membership changed, and it reversed its earlier ruling. In North Carolina, which is your state, there’s also a new conservative majority on the state supreme court, which has overturned recent rulings on other issues including partisan gerrymandering and voter ID. Precedent is a pretty malleable concept. What do you make of what’s happening?

Cheri Beasley: Well, Emily, it seems it’s become a malleable concept. Traditionally, it really hadn’t been. That’s why we call it precedent, that courts felt a sense of legal tradition and following the rule of law and preserving integrity of the court in following its previous decisions. Certainly, not always. Certainly, we wanted slavery abolished. But consistent with the times, courts have always generally followed precedent.

And you’re right, the North Carolina Supreme Court recently overturned two of its decisions on gerrymandering and voter ID. In a two-year period in North Carolina, five justices left. I was one of them. And then five more were elected. It is a conservative-leaning court, and I think it’s noteworthy, of course, that we see the Supreme Court of the United States also has just, in Dobbs, overturned Roe after 50 years of [abortion] being legal and constitutional. And the Court’s rationale was that the Court in 1973 abused its judicial authority and did not have sound reasoning, which is dangerous. And so precedent should matter, and the public has an expectation, should have an expectation, that the Court will offer sound reasoning and not be hasty in making judgments around the rule of law.

Emily Bazelon: Do you think there’s any room for overturning precedent? Obviously, there have been some incredibly misguided, wrong, unjust decisions of the Supreme Court from previous eras. And so I think judges often are debating what’s the right standard? How do you justify overturning a terrible ruling like Dred Scott? How do you make room for that while holding on to the kind of respect for tradition and recognition of how important stability is for law? How do you balance those values?

Cheri Beasley: Well, the constitution, both federal and state, generally offers great guidance for judges around, particularly, civil rights protections and other kinds of constitutional protections. And so it makes a lot of sense that Dred Scott was overturned and that we have a 14th and 15th Amendment, but it does not really make sense that after 50 years, Roe was overturned. And, of course, there is a greater issue here around how we found ourselves in this place and why the court is making decisions in the way that it currently is.

Emily Bazelon: David, in addition to challenges to abortion bans, there are also lawsuits trying to expand access to abortion, and that includes a case you’re involved with in Pennsylvania. How have some state constitutions offered greater protections, a kind of higher ceiling for abortion rights than the one that existed previously with Roe? And how are you thinking about precedent in the case you’re bringing in Pennsylvania?

David Cohen: As a litigant and as a lawyer who represents abortion clinics, which I do in Pennsylvania, I think there’s a slightly different way of thinking about precedent, especially precedent that you think is damaging to your client’s interest. You can look at precedent and say, “Well, we can take that precedent and we have to apply it.” But there’s another route, which is we can try to have it overturned. And here in Pennsylvania, on behalf of the independent and Planned Parenthood abortion clinics, I and lawyers from the Women’s Law Project and a private firm sued the state back in 2019 because the state does not cover abortions under Medicaid.

And we allege that that violates the state constitution’s guarantee of equal rights, both under the general Equal Protection clause and the Pennsylvania Constitution, [which] unlike the U.S. Constitution, has an equal rights amendment. But we have a big hurdle to overcome in winning this case, which is that in 1985, the Pennsylvania Supreme Court unanimously rejected these identical claims. And so here we are. We filed the case 34 years later. And here we are 38 years later in 2023. We have our arguments for why the precedent should be overturned because we think that the law in Pennsylvania has shifted, and that there’s new evidence that’s been brought out about the harms [from] Medicaid abortion bans. I think it’s important to think about all the ways in which overturning precedent has led to progress and change and good in this country. It’s not always bad.

Dobbs I think is a bad version of overturning precedent. They did it in a really bad way and without good justification. I think that’s the problem. And if ever the U.S. Supreme Court would it be more favorable, I would be front of the line arguing to overturn Dobbs, whether that’s next year or 50 years from now or 100 years from now. And I think we need to always think about that as a strategic option, whether it’s state court or federal court.

Emily Bazelon: Alicia, I want to ask you about ballot initiatives. In his majority opinion in Dobbs, Justice Alito said that what the court was doing was inviting voters to weigh in on how much abortion access to allow in their states. And obviously, voters could do that by electing representatives who then pass laws. But in 23 states, they can pass ballot initiatives that citizens initiate by launching petitions and signature drives. To me, one of the most surprising outcomes since Dobbs has been the way those ballot measures have played out across the country.

The first one was in August of 2022. Just about six weeks after Dobbs, the voters of Kansas defeated a measure that would’ve imposed probably new restrictions on abortion. Then you see Montana and Kentucky, two other conservative states similarly defeat ballot initiatives. And then the following November, Michigan, which is a perennial battleground state, that ballot initiative asked voters to enshrine state constitutional protections to abortion in the face of a ban that was temporarily blocked in court, and the voters said yes. That changed the law in Michigan to protect abortion rights. Now, there’s another initiative that David mentioned coming up in Ohio in November, which is a more conservative state than Michigan.

The pattern so far though is that when voters are asked directly about abortion access, they are not interested in bans, even in quite conservative states. And I wonder what you make about this as you’re working on the State Court Report.

Alicia Bannon: One of the ways that state constitutions are very different from the federal constitution is that they are far easier to amend. And in particular, there are a number of states in which you can have citizen-led initiatives that don’t require going through a state legislature to amend your state constitution. And particularly in states where you may have highly gerrymandered state legislatures, like Ohio, those ballot measures can be the only opportunity that the public may have to [shape] the legal environment in their state on an issue like abortion. And so, when we’re talking about state constitutional change, it’s not just how courts may be interpreting these provisions in the future. They may be interpreting different provisions than exist today.

One way that state courts are front and center is in addressing challenges related to these kinds of measures on the ballot. So for example, last year in Michigan, [when] the voters voted to amend their constitution to institute abortion protections, there was a challenge to the petition.

There was an effort to boot it off the ballot, arguing that the space between the words [made them] too close together, and that was given as a basis to not put it on the ballot. And it was a divided court. There were two justices on the Michigan Supreme Court that would have used that as a basis to keep it off the ballot and not put it before the voters. But the majority of the court said, “No, that is a small technicality. There’s no evidence that voters were actually confused. And so this should go on the ballot.”

And right now in Ohio, we’re seeing litigation. There was previous litigation in Ohio trying to keep that abortion measure off the ballot. Right now, there’s a pending suit with a challenge by the supporters of that ballot measure, saying that the language that the ballot board has put forward that’s going to appear before voters is itself misleading. There’s a lot of different litigation that we’re going to see now and in the years to come, around these ballot measures as people turn to courts as one tool as they try to either stop things from going on the ballot or ensure that voters have fair and accurate information.

Emily Bazelon: One thing that I have noticed is that while ballot measures are non-partisan, the responses of some of the state supreme court to challenges like the ones you’ve described have been splitting along party lines. We want to imagine that political affiliation and partisanship is not driving how judges make decisions, and yet we’re seeing this pattern play out. I wonder what you make of this part of the puzzle.

Alicia Bannon: Well, I think certainly the Michigan example underscores that it matters who’s on the bench. There were two justices on the Michigan Supreme Court that would have kept that measure from reaching voters in the first instance. At the same time, I think it’s been a bit of a mixed story in that regard. For example, there was a lawsuit in Ohio seeking to keep an abortion measure off the ballot, and the court unanimously rejected that. So I think we also see instances of courts not breaking along ideological or party lines, at least where the issues are fairly straightforward. In 38 states, elections are used as part of the system for choosing judges. State courts are often far more closely tied to the rough and tumble of politics than we might be used to with federal judges that have life tenure and are highly insulated. So certainly, those political dynamics are part of what we need to be looking at if we’re trying to understand state courts and the decisions that are coming out of them.

Emily Bazelon: Chief Justice Beasley, we’ve seen heightened interest in state judicial elections in the last few years. Certainly more money pouring into these campaigns. And this year, Wisconsin saw the most expensive judicial election in U.S. history and reproductive rights were a central issue. Can you offer your personal perspective as someone who’s had to do this job in this highly politicized environment? What’s that like?

Cheri Beasley: I had five elections, judicial elections, three of which were statewide. My last election was for the office of chief justice. And at the time it was the most expensive race in North Carolina’s history. It is concerning. Clearly, lots of special interest groups have been weighing in. We certainly saw the epitome of that in Wisconsin. I’m not naive enough to believe that judges may [never] have leanings one way or the other. But I do remember a time in North Carolina when the court, about 90 plus percent of the time, agreed on most issues. But I am concerned deeply when judicial candidates are expected to stake themselves out or take positions on issues that are likely to come before the court and when there’s an expectation from special interest groups that the candidate will take the position and then follow through.

What we’re seeing is an erosion of trust and confidence in state courts. Many state court justices and high court justices are elected now. I don’t know if elections instill more confidence or not. I do know that party systems do most of the vetting. But we certainly see on the Supreme Court of the United States a real issue around trust and confidence, the more information we have about their personal lives. And we, in some way, make a nexus between that and the decisions that they’re making in these really critical cases.

So I do believe that the harm there is twofold, that we see pressure from outside groups and an expectation that judges will rule a certain way, and also that this leads to an erosion of trust and confidence in our courts to be fair and impartial as judges are charged to do.

Emily Bazelon: I feel really torn about this. There’s a part of me that just doesn’t understand how judges can run for election without raising these issues. And I wonder how you think judges should handle sensitive topics like abortion. What should they say or not say?

Cheri Beasley: As one who’s run a lot, I just didn’t talk about abortion. I didn’t talk about specific issues. I didn’t talk about my personal beliefs about issues. I will also say that things have changed. My last election was in 2020, and in a very short period of time, candidates are expected and often deliver on taking positions on issues that could come before the court. I just think that that trend is deeply troubling.

Emily Bazelon: David, how do you think about judicial elections? Are you hoping that people will make commitments about their values so you know who to vote for? Obviously, it’s off limits to say that one would vote a certain way in a pending case, but the Supreme Court of the United States protected the First Amendment rights of candidates for judicial election to talk about contentious legal and political issues. So I think it’s not clear where those lines are. How you think about this?

David Cohen: It’s important to pay attention to judicial ethics, and you don’t want judges who have prejudged cases. You don’t want judges who have been involved in the issue in a way that compromises their objectivity. But people have views. And in states where there’s an elected judiciary, and I think a lot of people question whether that’s the best way to have a judiciary, although appointments through political process also [raise] concern. There’s some sense that this is a component of democracy and the people should have their voice and the people should know what they’re voting for.

Cheri Beasley: If I could just jump in on the judicial selection around merits and appointment. I agree with David that most judges are elected, and it is really hard to glean — other than the vetting that’s informal through party systems — [what is someone’s] judicial philosophy. What we know though, and all the data shows us, [is] that judges who are appointed versus judges who are elected are not necessarily more diverse. Certainly that has to be a concern if we’re thinking about courts that reflect the demographics of their states. We do have to figure out how we’re electing fair and impartial judges. It is just often an expectation by these groups that are pouring in lots of money, that we call dark money, that judges vote and rule a certain way in these really pivotal cases.

Emily Bazelon: Alicia, as you’re editing State Court Report and thinking about what you’re seeing across the country, do you have thoughts about judicial elections and the role they play and the expectations that voters have? One thing I always wonder about is what can voters really be expected to know about these candidates?

Alicia Bannon: It’s something that we’ve studied for a long time and [we] have tracked judicial elections. And I do think the fact that historically these elections have been typically very low information races is a big concern, because these are important positions. They’re very high stakes. They’re helping set the legal landscape in a state. And going to Chief Justice Beasley’s point about all of the money and special interest attention these races get, oftentimes the only information that people are getting about judicial candidates might be from an attack ad by a dark money group. I do think that there’s a real urgency around public education about the role of state courts, what they do, and then who’s actually running for these positions so that people are engaging meaningfully in shaping their courts.

Emily Bazelon: We have a Federalist system, and that means that in some instances we have one set of national rules that governs everywhere set by Congress or set by the federal courts, and then on other issues we have a state-by-state approach. What do you think the implications are for allowing every state to regulate abortion differently?

David Cohen: A lot of people are really confused because in some states the law is changing quickly and changing sporadically as decisions take effect or they get blocked. And there’s also just the sense that something is so important as to be able to choose your destiny, choose what to do with your body, choose what to do with your life, should not be determined by where you live, that it should be something that is subject to a national standard of a right. So it does create this patchwork, this confusion and this different landscape based on the randomness basically of where you live.

Emily Bazelon: Alicia, what are some state supreme court races that you think are the most vital to keep an eye on that are coming up?

Alicia Bannon: That’s a great question. Well, this fall there’s one main state supreme court race, which is in the state of Pennsylvania. The future ideological composition of the court is potentially something that could be in flux coming out of that election and obviously Pennsylvania is a very important state. It’s a large state, it has often been a swing state. So it’s something where state supreme courts are potentially going to be very significant in a whole host of areas, not just in reproductive rights, but in hearing election cases and in other areas as well.

Emily Bazelon: David, a while ago you [mentioned] Missouri. I’m very interested in Missouri because they have an effort to launch a ballot initiative for 2024 that has gotten mired in many different things.

David Cohen: Yeah. Alicia, was talking about some of the ways that state supreme courts have been involved, and I think one of the ways that the state supreme court in Missouri has been involved is just fascinating. The ballot initiative has to, by state law, have a cost estimate associated with it that’s published to the citizens. So they know how much voting one way or the other is going to cost the state. And the attorney general of Missouri suggested or proposed that, that dollar figure would be 51 billion — with a “B” — dollars if they approve the right to abortion under the state constitution, which is absolute nonsense. But the litigants took it to the state supreme court and they agreed that this is nonsense. It’s more like $51,000. But the Missouri Supreme Court, again, not known for being the most liberal supreme court in the country, put a stop to those shenanigans over this very important ballot initiative.

Emily Bazelon: And I think there’s a follow-up to that, which is that the secretary of state in Missouri wrote summary ballot language for the initiative that would talk about abortion being dangerous and available up to birth, just very inflammatory language. So now I think the Missouri Supreme Court or maybe soon will have a case challenging that summary, right?

David Cohen: Yeah. The battle here is not just over the ultimate outcome in these initiatives. Right? It’s how the wording is, what’s on the ballot, because the initiative might be longer but there might be a summary on the ballot because people won’t read all of it. Abortion is such a contentious issue that every part of this is being litigated with respect to these ballot initiatives.

Emily Bazelon: Right, and all this of course just sort of underscores the importance of state courts and of the Brennan Center’s work on this issue. Right? These are now issues that are front and center for state courts to decide with the federal courts taking a backseat or having very little role at all. So I want to turn to our last question. What is the thing that you each want our audience to walk away from remembering this evening? Maybe I’ll start with you, Chief Justice Beasley.

Cheri Beasley: First of all, pay attention to every single supreme court race in this country, and Alicia and the Brennan Center will certainly keep us abreast of what those races are. Everybody here is engaged. But the one thing that I want people to walk away with from this session is to make sure that the people around us appreciate the value in voting and appreciate the empowerment in voting.

Alicia Bannon: What I would like folks to take away from this conversation is that state courts matter. They’re powerful, they’re often overlooked as critical sources of rights protection. So I encourage people to get to know your state courts, get to know your state’s constitution, and pay attention to these really important institutions.

David Cohen: It’s the combination of the two, it’s that voting matters and state courts matter. So state court voting, voting for state court judges matters and there are a lot of people who think that when they vote in the federal elections every two years for Congress, every four years for the president, every six years for the Senate, that they’re being engaged citizens. But if you’re not also voting in every state election, in federal, state, and local elections, primary and general, if you’re not doing all of those things, you’re doing it wrong. You need to be engaged in the political process at all of those levels, at all of those elections.

Because as both my wonderful co-panelists said, it all matters. And in some ways, some of that matters a lot more than following who the president is appointing to the U.S. Supreme Court or to lower courts in the federal judiciary. The state courts matter, and we need to treat them that way, and we need to act accordingly in our voting.

Emily Bazelon: Thank you to all of our fabulous panelists, I know I learned a lot listening to all of you and thank you to the audience for your great questions. Please be sure to check out the brand new State Court Report website, it’s at statecourtreport.org. You can sign up for the newsletter there to learn about live events like this one, and also to follow developments regarding state courts around the country. Thank you once again to our partner and co-sponsor for this event, which is the Birnbaum Women’s Leadership Center. I’m Emily Bazelon, a staff writer at The New York Times Magazine and Truman Capote Fellow at Yale Law School. From all of us, thanks so much for joining us this evening for this great discussion.

Suggested Citation: Kris Fischer, A Conversation About Abortion Rights and the Future of State Constitutions, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Jan. 10, 2024), https://statecourtreport.org/our-work/analysis-opinion/conversation-about-abortion-rights-and-future-state-constitutions.