June 28, 2022

JONATHAN ADLER: The Next Abortion Battlegrounds:

One consequence of the Dobbs decision is that much abortion litigation will shift from federal to state court. Just because there is no right to abortion in the federal constitution does not mean there is no such right to be found under state constitutions. Just as (to take one example) the Ohio Supreme Court has concluded that the Ohio Constitution provides greater protection for private property against eminent domain than does the Fifth Amendment to the U.S. Constitution, state supreme courts may conclude that state constitutional provisions protect abortion rights through state-level rights to privacy (as in Montana) or other liberty-protecting provisions. Of course, such claims will not always be successful. The Iowa Supreme Court recently issued a state-level Dobbs decision, rejecting prior decisions that had recognized a state-level abortion right.

Some years ago, the Tennessee Supreme Court found a right to abortion under the Tennessee Constitution’s right of privacy. In a very rare exercise of amending Tennessee’s very hard to amend state constitution, voters overruled that opinion with an amendment providing that no right to abortion exists in the Tennessee Constitution, though leaving the right of privacy otherwise intact.

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