The Role of History and Tradition in State Court Abortion Cases

When the U.S. Supreme Court dismantled the federal constitutional right to abortion in Dobbs v. Jackson Women’s Health in 2022, it also turbo-powered a court-constructed, history-and-tradition test for deciding the status of constitutional rights.

While state courts are not tethered to Dobbs or its brand of originalism, the influence it has had on state courts deciding abortion rights cases is undeniable. In nine post-Dobbs state high court abortion decisions that directly address the role of history and tradition in analyzing state constitutional rights, four — Florida, Idaho, Indiana, and Iowa — largely mirrored the reasoning of Dobbs. But at least five state high courts — Kansas, North Dakota, Oklahoma, Pennsylvania, and Utah — have considered historical evidence in opinions that embraced more expansive interpretations of state constitutions to protect abortion and related rights to varying degrees. Three of those decisions exemplify the ways state courts are diverging from, or even altogether rejecting, Dobbs’s use of originalism.

The majority in Dobbs concluded that substantive due process under the U.S. Constitution protects only rights “deeply rooted in the Nation’s history and tradition.” That did not include abortion, the majority said, as evidenced by the criminalization of abortion “from the earliest days of the common law” and the absence of a “positive” right to abortion before the 14th Amendment’s ratification. That analysis has been widely criticized, including for its inaccurate and results-driven account of the past that, according to law professor Melissa Murray, ties present rights to historical periods “in which women and people of color were expressly excluded from political participation and deliberation.” 

These deficiencies, law professor Serena Mayeri cautions, may tempt us to “jettison any methodology that looks to the past as a source of rights or of relevant constitutional principles today.” But Mayeri instead urges the hard work of “taking a critical approach to history — one that understands the past in all its complexity so as to shape a more just future.” State high court decisions from Utah, Pennsylvania, and Kansas show how this can be done.

In 2024’s Planned Parenthood Association of Utah v. State, the Utah Supreme Court upheld a preliminary injunction against a state abortion ban, pending a final decision on plaintiffs’ claims that the law violates the state constitution’s equal rights provision as well as unenumerated rights to bodily integrity and family life decisions. The court dismissed the notion that the state constitution could not protect a right to abortion because of Utah’s history of criminalizing abortion, explaining that its task is to determine principles enshrined in the constitution, not to apply the principles in “the same way the founding generation would have.” It further emphasized that “failure to distinguish between principles and application of those principles would hold constitutional protections hostage to the prejudices of the 1890s.”

A critical consideration of history also infuses the Pennsylvania Supreme Court’s 2024 decision in Allegheny Reproductive Health Center v. Pennsylvania Department of Human Services. The court held that excluding abortion care coverage under the state Medicaid plan was subject to strict scrutiny review under Pennsylvania’s Equal Rights Amendment. Although a majority of the court did not reach the question of whether the Pennsylvania Constitution protects a fundamental right to abortion, Justice Christine Donohue opined that it does and observed that the court is not “constrained, as the Dobbs Court believed it was, to determine whether abortion is ‘deeply rooted’ in the ‘history or traditions’ of the Commonwealth.” In concurrence, Justice David Wecht underscored the court’s obligation to interrogate the context of historical laws regulating abortion because “simply referring to criminal laws that subjugated the rights of women in the past as a basis to subjugate the rights of women today, without looking critically at the misogyny that prevailed at the time, seems designed to perpetuate the wrongs of our past.”

Likewise, in exploring its unique political, legal, and constitutional history, Kansas’s supreme court held state constitutional principles require protecting abortion rights, not entrenching past discrimination. In two decisions in the case Hodes & Nauser v. Kobach — one before and one after Dobbs — the court first temporarily enjoined an abortion procedure ban and later held that the ban violated the fundamental right to personal autonomy under the state constitution. The court reasoned that the existence of statutes criminalizing abortion when the state constitution was adopted was not determinative because there was no historical evidence those abortion laws reflected the will of the people. In reality, they arose from sex-differentiated rights and laws largely unchallenged at the time but now understood as discriminatory. The court explained, “rather than rely on historical prejudices in our analysis, we look to natural rights and apply them equally to protect all individuals.”

With at least 16 reproductive rights cases still active in state courts, we can expect more state high courts to weigh in on how history should inform judicial interpretation of constitutional rights. The Wisconsin Supreme Court will soon decide whether a 175-year-old state law bans abortion and, if it does and has not been impliedly repealed, whether the law violates state constitutional rights to liberty and equal protection. In litigation ongoing in Wyoming, where a trial court enjoined abortion bans under the state constitutional right to make health care decisions, the plaintiffs have also submitted a brief to the Wyoming Supreme Court arguing that the history and tradition of liberty, equality, and natural rights support their claim that such bans violate multiple state constitutional provisions.

Three years after Dobbs, reproductive rights litigation in state courts reveals the role of history and tradition is far from settled. As law professor Reval Siegel has argued, constitutional histories need not be “an instrument for justifying repression” but should “enable critique and resistance.” State courts show why doing so is vital for restoring constitutional traditions that offer protection to rights of bodily autonomy, liberty, equality, and reproductive decisions and health.

Diana Kasdan is the legal and policy director of UCLA Law’s Center on Reproductive Health, Law, and Policy.

Amanda Barrow is a senior staff attorney with UCLA Law’s Center on Reproductive Health, Law, and Policy.

Suggested Citation: Diana Kasdan & Amanda Barrow, The Role of History and Tradition in State Court Abortion Cases, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (May 28, 2025), https://statecourtreport.org/our-work/analysis-opinion/role-history-and-tradition-state-court-abortion-cases