No Right to Abortion Exists in Any State, Lawyer Argues, as States Maneuver in the Wake of Roe

An attorney who defended Florida’s abortion restrictions before the state Supreme Court in 1989 is arguing that, in his view, state courts that recognize abortion “created a right out of whole cloth.” There is, he adds, “no right to abortion in any state constitution.”The attorney, James Bopp, is among the foremost lawyers on the opposing side in the battle over abortion. “Put all the state constitutions in a PDF file,” he tells the Sun, “and then search the word abortion or reproductive freedom.”Mr. Bopp’s contention is hitting the abortion debate as Florida’s governor, Ron DeSantis, is vowing to appeal a state court ruling striking down the state’s abortion law as unconstitutional. And as New York, California, and Vermont are moving in the opposite direction, vowing to amend their constitutions to make abortion protections explicit.In 2018, Iowa’s Supreme Court ruled that “autonomy and dominion over one’s body go to the very heart of what it means to be free.” It struck down a law that required patients to wait 72 hours after visiting a clinic before they can receive an abortion.In June, as the United States Supreme Court was preparing to decide Dobbs, Iowa’s high court reversed its four-year-old precedent.“Constitutions — and courts — should not be picking sides in divisive social and political debates unless some universal principle of justice stands on only one side of that debate. Abortion isn’t one of those issues,” read the opinion by a justice on the Iowa Supreme Court, Edward Mansfield.The previous precedent, Justice Mansfield said, “insufficiently recognizes that future human lives are at stake.”Following the decision, Governor Reynolds — an opponent of the legal right to abortion — pushed the state Supreme Court to hear a case that could reinstate a “fetal heartbeat” law that would ban abortion after six weeks of pregnancy. A lower court blocked that law in 2019.“We have the heartbeat bill on the books,” Ms. Reynolds said last week. “So let’s lift the injunction, and let’s make that a law that it is.”Iowa and Florida both have mandatory retirement ages for judges, which has allowed Ms. Reynolds to shape the high court’s composition over the course of her term. She has already appointed four of the court’s seven serving justices, and will soon fill the seat of its last remaining Democratic-appointee, who will retire this year.Kansas, whose Supreme Court recognized a right to abortion under the state constitution in 2019, might also soon reverse that precedent via a constitutional amendment being put to voters on August 2.The state’s constitution, drafted in 1859, guarantees “equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness,” as well as “natural rights.” Kansas’ court ruled in 2019 that, in crafting this language, its framers intended to protect “personal autonomy,” “human dignity,” “bodily integrity,” and “self-determination.” It determined that this encompassed “the decision whether to continue a pregnancy.”The referendum, if passed by voters, would specify that “nothing in the state constitution creates a right to abortion or requires government funding for abortion and that the state legislature has the authority to pass laws regarding abortion.”Kentucky, whose constitution is not currently recognized to protect abortion, will hold a similar referendum in November to ensure that it will not be protected. “To protect human life, nothing in this Constitution shall be construed to secure or protect a right to abortion or require the funding of abortion,” reads the text of the referendum.Voters in four states — Tennessee, Alabama, West Virginia, and Louisiana — have passed similar referenda over the last decade explicitly barring courts from interpreting their state constitutions to protect abortion.Similar constitutional battles could follow in Arizona and Montana, both of which have trigger laws in place to restrict abortion that could conflict with more recent recognitions of constitutional abortion protections by state courts.These moves come as Florida’s battle over its constitutional language has moved into the national spotlight.Following a state circuit court ruling that Florida’s ban on abortions after 15 weeks of pregnancy violated the state constitution’s explicit “right to privacy,” Mr. DeSantis announced Friday that he would appeal the decision.Florida’s case will be the first of its kind to be resolved since the Supreme Court ruling in Dobbs v. Jackson Women’s Health Organization stuck down Roe v. Wade’s precedent barring states from legislating against abortion. The matter is likely to be settled by the Florida Supreme Court. The governor has asked the court to reverse a 1989 precedent that held that abortion restrictions were unjustified “governmental intrusions” into a person’s “private life.”“Florida’s privacy provision is clearly implicated in a woman’s decision of whether or not to continue her pregnancy,” Justice Leander J. Shaw Jr. said in the majority opinion of the case, In re T.W. in 1989.Florida’s Supreme Court is now made up entirely of Republican-appointees, three of whom were appointed by Mr. DeSantis.“The Florida Supreme Court previously misinterpreted Florida’s right to privacy as including a right to an abortion, and we reject this interpretation,” said a spokesman for Mr. DeSantis, Bryan Griffin. “The Florida Constitution does not include — and has never included — a right to kill an innocent unborn child.”Advocates of legalized abortion point to the results a 2012 statewide referendum that would have amended the state constitution to end the recognition of its abortion protections. The measure was rejected by 55 percent of voters.Should Florida’s high court reverse its 1989 precedent, it would be following the path of Iowa, whose highest court last month reversed a prior recognition of a right to abortion within the state the constitution. “For anyone who thought, ‘Oh, Roe v. Wade is done and now this whole thing is over’ — I have bad news,” said an abortion law expert at the University of California Davis, Mary Ziegler, in comments to NPR. “This is just going to be an even more complicated chapter that we’re entering into.”As Florida, Iowa, and Kansas have taken steps to excise any suggestion of abortion rights from their constitutions, New York, California, and Vermont have moved to amend their constitutional protections to explicitly protect abortion rights, even though abortion is legal in those states.

No Right to Abortion Exists in Any State, Lawyer Argues, as States Maneuver in the Wake of Roe

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