Abortion Rights and the Legal Framework of State Constitutions

A constitutional right is more than a mere legal right. It is a right which is protected because of how a political and legal system is well, constituted. The key is in the word constitution. On 23rd of June, 2022 there had been a constitutional right to an abortion in the United States for about 50 years. But the day after, on the 24th of June there was not. The constitutional right to an abortion was removed by the Supreme Court of the United States. The U.S. Supreme Court’s 2022 Dobbs v Jackson Women’s Health Organization decision sent the regulation of abortion from the federal government back to the states, ending nearly 50 years of legalized abortion throughout the country under the Court’s 1973 Roe v Wade and Doe v Bolton decisions.

The Shift to State-Level Governance

State constitutions and the judges who interpret them are a critical battleground for abortion rights. The rights and liberties protected by the federal Constitution only set a floor, not a ceiling, for the rights people enjoy at the state level. States cannot provide less protection than the federal constitution, but they can provide more. Every state constitution contains a bill of rights and other provisions that are semantically similar to the federal Constitution’s, and judges often interpret these state constitutional provisions more expansively. These rulings rely on varying provisions that are embedded in many state constitutions; most commonly:

• Equal protection clauses
• Due process clauses
• Implied or explicit rights to privacy
• Gender-equality provisions

Case Study: Missouri’s Proposed Amendment 3

The proposed Amendment 3 to the Missouri Constitution would go far beyond ensuring what its promotors call “the right to reproductive freedom.” Not only would it allow practically unrestricted access to elective abortion at any stage of pregnancy, it would override safeguards in Missouri law that help protect women from unsafe abortions. As part of the state Constitution, the amendment would be very difficult to reverse, even after its shortcomings become evident. Prohibiting the government from meaningfully regulating a practice as serious as abortion makes Amendment 3 “an extremely dangerous proposition for women and for our whole state.”

Overriding Existing Safeguards

If these or any of the other safety measures are perceived as a delay or denial of an abortion, they are plainly unconstitutional under this amendment. The amendment would call into question whether a woman undergoing any sort of procedure pertaining to her reproductive system could seek damages if she or her baby is injured. Existing Missouri law provisions that could be impacted include:

• The requirement that only a medical doctor be allowed to perform abortions in the state
• That parents of a minor be notified before she can have an abortion
• That abortion clinics comply with the state’s health and safety standards for outpatient surgical centers
• That clinics be located close enough to a hospital that a woman can get treatment if life-threatening complications arise

The Question of Viability and Personhood

The abortion amendment appears to include clear limits on how far into pregnancy an abortion can take place. It establishes that the government can’t infringe on someone’s right to an abortion up until viability of the preborn baby. Beyond that point of viability—generally understood to be 6 months after the baby is conceived—the abortion amendment says the state government can regulate but cannot prohibit abortion. However, the government still can’t interfere with a woman’s right to an abortion if there was a determination that the abortion is necessary after viability for the life of the mother or the health of the mother, including mental health.

Constitutional Interpretations of Personhood

The case for a constitutional right to abortion “collapses” if a human fetus counts as a “person” entitled to constitutional protections. In that case, the Constitution would guarantee the fetus’s right to life. Blackmun conceded this point in Roe v. Wade, though he then argued that fetuses do not fall under the Constitution’s protections. Today, the push for an abortion amendment is part of a state-by-state strategy by abortion-rights advocates to ensure access to the procedure. Whether these rights multiply or atrophy now depends on battles that will be distinct to each state.

Summary of Impacted Legal Protections in Missouri

• Current Requirement: Only a medical doctor performs abortions. Potential Status: Challenged as a "delay" under Amendment 3.
• Current Requirement: Parental notification for minors. Potential Status: Seen as unconstitutional interference.
• Current Requirement: Surgical center safety standards. Potential Status: Challenged as an unconstitutional barrier.