State Court Protection of Reproductive Rights: The Past, the Perils, and the Promise

Abstract

I. Introduction In the United States constitutional system, the protection of individual rights depends upon the federal and state judiciaries. The role of the federal courts in protecting reproductive rights provides a particularly well known, if controversial, example. Roe v. Wade is among the most widely recognized of all judicial decisions. (1) The U.S. Senate, for example, routinely questions Supreme Court nominees about their views on Roe, as well as Roe's principal precedent, Griswold v. Connecticut. (2) Although the Supreme Court's invalidation in Roe of Texas's criminal ban continues to be debated, Griswold's invalidation of a Connecticut law that made it illegal for even married couples to use contraception stands as a pillar of modern constitutionalism. (3) The courts of the fifty states also possess broad authority to safeguard or diminish reproductive autonomy and, as a consequence, the status of health care, reproductive justice, and the well-being of women, children, and families in their jurisdictions. State courts interpret the meaning of state laws--constitutional provisions paramount among them--that may provide greater protection for individual rights than the federal Constitution. The movement for marriage equality provides a powerful and related example: the first states to allow couples of the same sex to marry did so only after a state court interpreted a state constitutional guarantee to require what increasingly is recognized as a matter of right. (4) Americans regularly have battled governmental intrusions on their reproductive rights in state as well as federal courts, dating back to when not only and contraception were illegal, but so, too, was the distribution of information about how to prevent unintended pregnancy. (5) Now, more than forty years after Roe and fifty years after Griswold, state courts are as important as at any time since those landmark decisions. Overlapping factors converge to create special urgency for attention to state courts. A brief review of five such factors helps situate this Essay's analysis of the contemporary relevance of state courts to the fight for reproductive justice. First, this is a time of heightened threat to the availability of legal services, which diminishes the effectiveness and availability of women's health care services more generally. (6) Several facts illustrate this trend: * State legislatures enacted more restrictions in the last three years (2011-2013) than in the previous decade. (7) * Between 2000 and 2013, the proportion of women living in states hostile to rights nearly doubled, from 31% to 56% (as measured by the Guttmacher Institute). (8) * The number of providers in the United States has fallen over 40% since 1982 (9) and has declined 4% between 2008 and 2011 alone; 89% of all United States counties lack an clinic. (10) * The number of providers will continue to fall from 2011 levels unless courts enjoin new restrictions, as illustrated by the situation in Texas where in 2014 the number of clinics shrunk from forty-one to nineteen and threatened to fall to seven. (11) * In six states, only a single clinic remains open in the entire state, (12) placing them at special risk of soon becoming, as opponents describe their aspiration, abortion free. (13) Second, women increasingly depend upon state courts not only to protect their rights to terminate pregnancies but also to safeguard their liberty, equality, and dignity during pregnancy. The assault on reproductive rights seeks broadly to define fertilized eggs, embryos, and fetuses as persons possessing rights independent of pregnant women. (14) National Advocates for Pregnant Women has documented hundreds of instances since Roe in which states have used criminal and civil law in efforts to specially punish or control women because they had an abortion, experienced a miscarriage or stillbirth, or engaged in behavior a prosecutor or physician deemed harmful to embryonic or fetal development. …