What All State Constitutions Say About Abortion, and Why It Matters

State constitutions and the judges who interpret them are a critical battleground for abortion rights. As states rush to respond to the U.S. Supreme Court’s ruling, state constitutions—and the judges who have the power to interpret them—have emerged as critical battlegrounds. 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. While states cannot provide less protection than the federal constitution, they can provide more.

The Role of State Supreme Courts and Constitutions

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. With federal lawsuits now effectively blocked on abortion, as on other issues, many of these state courts now offer a more promising playing field for progressive litigators. Many other state courts across the country have similarly established that their state constitutions recognize abortion rights. These rulings rely on varying provisions that are embedded in many state constitutions; most commonly, these include equal protection clauses, due process clauses, implied or explicit rights to privacy, and gender-equality provisions.

The presence of such clauses in a state constitution does not guarantee that courts apply it to abortion. For instance, eleven states have clauses in their constitutions that mention privacy, but only some of their high courts have held that the provision protects abortion rights. Where they have, courts frequently rely on state-specific histories and the contexts of their adoption. No state constitution has a provision that nominally enshrines a right to abortion, though there are active efforts to change that.

State-Specific Judicial Landscapes

The following data highlights how different states have interpreted their constitutional protections regarding abortion access:

• Kansas: Abortion access is protected as of now by a 2019 ruling by the state supreme court that the state constitution provides a right to abortion.
• Iowa: The new conservative majority on the Iowa Supreme Court ruled on June 17 that Iowa’s state constitution does not guarantee a right to access abortions, striking down a 2018 ruling that had held the opposite.
• Florida: A state judge in Florida temporarily blocked new abortion restrictions on the basis that they violate his state’s constitution.
• Mississippi: The court affirmed a right to abortion in 1998, and its precedent has not been tested in decades, though state advocates hope it can now come into play.
• Idaho, Oklahoma, and Utah: Lawsuits are now asking state judges to affirm the presence of similar rights in their own constitutions.

The Impact of Judicial Composition

Many courts’ balance of power is precarious, and changes in their composition can massively upheave how a court interprets these provisions. The rapid shift in the Iowa supreme court’s jurisprudence followed changes to the state’s judicial nominating process, which gave the Republican Governor more power over nominees and brought more conservative justices into office. Florida may be undergoing a similar shift. Whether these rights multiply or atrophy now depends on battles that will be distinct to each state. Still, as long as they’re standing, such interpretations are a shield against all-out bans, and they survive the U.S. Supreme Court’s Dobbs decision to overrule Roe.