Mapping State Supreme Court Abortion Rights Decisions

In the 19 months since the U.S. Supreme Court eliminated the federal constitutional right to abortion in Dobbs v. Jackson Women’s Health Organization, several state high courts have issued rulings on whether their state constitutions protect a right to abortion. They’ve struck down and upheld abortion bans based on a range of rights and rationales. It can be hard to keep up. To help capture this complex and shifting landscape, the Center for Reproductive Rights has developed a new digital tool, State Constitutions and Abortion Rights.

The first post-Dobbs rulings from state supreme courts came in January 2023, when the South Carolina and Idaho Supreme Courts issued simultaneous opinions on whether their state constitutions protected a right to abortion. The South Carolina court found that an abortion ban violated the state constitution, while the Idaho court went the other way. The months that followed were tumultuous, with three other state high courts — in North Dakota, Oklahoma, and Indiana — considering bans in their respective states. North Dakota and Oklahoma struck down bans; Indiana upheld one. Adding to the whiplash, after a change in membership, the South Carolina Supreme Court upheld an abortion ban virtually identical to the one it had struck down just seven months earlier. These decisions are just a fraction of the constitutional activity — through court cases and ballot measures — around abortion rights since Dobbs.

While many state courts are deciding for the first time whether and how their state constitutions protect abortion, they have plenty of examples to consider. State courts have been ruling on abortion rights issues for decades. But post-Dobbs, they are grappling with new questions. Among those is whether states can constitutionally force pregnant patients to become very sick and almost die before an abortion can be provided. Courts are also considering underdeveloped doctrines like the rights to life and health. Some, like the Pennsylvania Supreme Court, are revisiting old precedents, finding they over-relied on U.S. Supreme Court case law. Plus, voters are weighing in on ballot initiatives to amend their state constitutions to protect or deny reproductive rights.

The Center for Reproductive Rights’ new tool shows the current status of abortion rights in each state, presenting both pre- and post-Dobbs developments to capture a quickly changing landscape as state courts issue constitutional decisions and voters approve constitutional amendments. It allows users to explore court decisions on abortion from around the country — currently 30, with more coming. It outlines which high courts have ruled on whether and how their constitutions protect abortion rights, explains their reasoning, and identifies the constitutional provisions in play — liberty, privacy, equality, and beyond. It also provides a snapshot of the national landscape, tallying which state courts have recognized, denied, or left undetermined the existence of abortion rights and where voters have negated court decisions through ballot initiatives.

An analysis of the constitutional landscape captured by this new resource reveals a few notable trends.

First, 12 state high courts have recognized a general right to abortion or a right in some circumstances, leaving open that this trend might extend farther. Two — North Dakota and Oklahoma — issued their rulings post-Dobbs, and both found that their constitutions protect abortion to preserve life and/or health, without foreclosing broader rights. These decisions could serve as building blocks for future developments.

Second, of the 30 states where courts have issued state constitutional rulings about abortion, only four state high courts have held that their constitutions do not protect a general right to abortion beyond any limited right that may exist in narrow circumstances (South Carolina, Idaho, Indiana, and Iowa). All except Iowa were decided post-Dobbs. Three — Idaho, Indiana, and Iowa — relied explicitly on the states’ history of banning abortion to conclude that their constitutions could not protect abortion rights, employing versions of the regressive “history and tradition approach” that the U.S. Supreme Court endorsed in Dobbs.

Third, state courts deciding constitutional abortion challenges have relied on rights to liberty, privacy, and equal protection; inherent and natural rights; equal rights amendments; search-and-seizure provisions; and structural provisions that lay out the powers of government. Courts have interpreted similar or identical provisions in opposite ways — the New Mexico Supreme Court held that a restriction on public funding for abortion was sex discrimination that violated its Equal Rights Amendment, while the Texas Supreme Court held to the contrary.

Finally, state courts that have recognized constitutional abortion rights have nonetheless upheld abortion restrictions, sometimes in the same opinion. For example, the Illinois and Mississippi Supreme Courts have held that their constitutions protect abortion rights independently from the federal Constitution, but they borrowed the “undue burden” legal standard from the U.S. Supreme Court precedent of that time to evaluate and ultimately uphold the challenged restrictions. And the Florida Supreme Court recognized in 1989 that the state constitution’s explicit privacy clause protects abortion as a fundamental right, but it has allowed multiple restrictions to stand in subsequent cases.

As more state supreme courts rule on constitutional abortion rights, state court precedents will no doubt become even more complex and revealing. Will courts continue to recognize abortion rights more often than deny them, as in decades past? Will they carve out limited circumstances in which rights apply, and then build on them over time? Will rights to health and life take on new dimensions? The Center for Reproductive Rights’ tool will be updated to capture the future shifts — and, hopefully, robust protections — for reproductive autonomy across the map.

Amy Myrick is a Senior Attorney for Judicial Strategy at the Center for Reproductive Rights.

Suggested Citation: Amy Myrick, Mapping State Supreme Court Abortion Rights Decisions, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Jan. 30, 2024), https://statecourtreport.org/our-work/analysis-opinion/mapping-state-supreme-court-abortion-rights-decisions.