Building Protections for Reproductive Autonomy
Now that the U.S. Supreme Court has taken away the constitutional right to abortion—in a devastating ruling in Dobbs v. Jackson Women’s Health Organization—state constitutions and courts matter more than ever. Not only do state courts and constitutions offer stronger and expanded legal grounds for protecting abortion rights, they also shield access to abortion in highly restrictive parts of the country.
For decades, the Center for Reproductive Rights has brought cases in state courts to build strong abortion protections at the state level independent of federal law. In a report published in July 2022, “State Constitutions and Abortion Rights: Building protections for reproductive autonomy,” the Center outlined 10 states in which high courts recognized that their state constitutions protect abortion rights and access independently from and more strongly than the U.S. Constitution or had struck down restrictions that were upheld by the U.S. Supreme Court. The report focuses on cases in seven states brought by the Center that not only resulted in broader protections for abortion rights and access, but have in many instances influenced outcomes in other cases and courts. The Center’s analysis also considers how this jurisprudence can expand and shape further efforts to secure reproductive rights.
The report is a snapshot of abortion rights in the states before a host of challenges to abortion bans that took effect after the Dobbs decision presented state courts with new opportunities to protect abortion rights. The interactive map below includes decisions protecting abortion rights by state high courts in the wake of Roe’s reversal.
The right to decide whether to continue a pregnancy is core to life, liberty, and equality—all rights protected under the U.S. Constitution. Human rights principles and international and comparative law recognize that abortion must be legal and accessible.
Even before overturning Roe, the U.S. Supreme Court and federal courts in the U.S. did not always treat abortion as a fundamental right that must receive the strongest possible protections against governmental interference. Some state courts and constitutions, however, have adopted more stringent legal standards, invalidating laws that infringe on decision-making about pregnancy.
Over the last three decades, state courts have built a foundation of novel jurisprudence that recognizes strong personal privacy and autonomy rights, equality principles, and the deeply rooted nature of abortion protections in history and text. With unique constitutions and court systems, states are free to guarantee greater protection for abortion rights and reproductive autonomy.
In Roe v. Wade (1973), the U.S. Supreme Court recognized abortion as a liberty right under the Fourteenth Amendment. In its ruling in the Dobbs v. Jackson Women’s Health Organization case, the U.S. Supreme Court abandoned its duty to protect fundamental rights by overturning Roe v. Wade and ruling there is no constitutional right to abortion. The decision marks the first time in history that the U.S. Supreme Court has taken away a fundamental right.
But even while Roe’s fundamental protection was in place, since 1992 the Court evaluated abortion regulations under an “undue burden” standard that permitted states to restrict abortion as long as burdens on access were not too severe. In practice, courts upheld a range of restrictions that made abortion difficult to access, especially for people of color, people living with low incomes, young people, immigrants, disabled people, and others with limited resources.
The rulings from seven state supreme courts detailed in the Center’s report have gone beyond the federal undue burden standard to protect abortion rights or access more strongly than the federal Constitution. The analysis explains each ruling’s legal underpinnings, impacts on abortion access, and positive influences on high courts in other states. In addition, the report considers how this jurisprudence can expand and shape future efforts to secure reproductive rights.
Interactive Map: State Supreme Court Decisions Protecting Abortion Rights
The interactive map below shows the states with high courts that have relied on rights in their state constitutions to block abortion restrictions or bans. In many cases decisions also contributed to positive outcomes in other states. Conversely, decisions that are overturned could have ripple effects.
To use the interactive map:
- Roll over the highlighted states to see how cases relied on (“cites to”) rulings in other states, and in turn were relied on (“cited by”) by later rulings.
- Click on the state for details on the Center’s cases in Alaska, Arizona, Florida, Kansas, Minnesota, Montana, New Mexico, North Dakota, Oklahoma, and South Carolina.
To explore an interactive map, please visit this page on a desktop browser.
I. Historical Constitutional Analysis: State Traditions of Personal Autonomy
Some state courts have focused on how autonomy—the right to control one’s own body without influence or coercion—protects personal rights, including abortion. These state courts have interpreted their constitutional history and traditions more expansively than those federal jurists who have employed narrow, backward-looking analysis to reject rights such as intimacy, same-sex marriage, and abortion.
States with expansive interpretations of personal autonomy: Kansas, Montana
Center cases: Kansas, Montana
The Kansas Constitution protects abortion as a fundamental right, exceeding protections under the U.S. Constitution. Kansas state courts are required to evaluate any abortion restriction using the strictest standard of judicial review. The Center brought the legal challenge that led the Kansas Supreme Court to recognize state constitutional protections in 2019, strengthening protections for abortion access in the face of relentless legislative attacks. This landmark decision is informing challenges to other restrictions in the state.
Legal underpinnings: The Kansas Constitution contains a guarantee of “equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness,” which the Kansas Supreme Court has recognized includes the right to abortion. The Court employed historical analysis of the constitution’s drafting in 1859 to find that the framers intended to broadly protect “personal autonomy,” “human dignity,” “bodily integrity,” and “self-determination” without tethering those values to specific circumstances of the day. The Court also analyzed the constitution’s text to adopt an expansive definition of “natural rights.”
In Montana, the state supreme court has recognized that the Montana Constitution’s right of privacy includes a right of “procreative autonomy.” This right confers stronger protections for abortion than the U.S. Constitution. The Center is engaged in ongoing efforts to protect abortion access in Montana state court against a new onslaught of assaults.
Legal underpinnings: The Montana Supreme Court has held that privacy broadly protects the right to make medical decisions affecting bodily integrity and health, including decisions about reproduction. In broadly defining privacy, the Court embraced intentionally open-ended text in the Montana Constitution, writing that the expansive nature of privacy rights demanded a flexible and evolving judicial approach.
II. Abortion as a Fundamental Right: Decisions Grounded in Privacy
The U.S. Constitution does not include a textual right to privacy—the right to be free from government intrusion into personal life and decisions. While earlier U.S. Supreme Court and federal court opinions found that the right to liberty includes privacy, later opinions on the right to abortion moved away from a privacy analysis. State courts have relied on rights to privacy in their state constitutions to recognize the strongest protections for abortion.
States that have relied on rights to privacy in their constitutions: Alaska, California, Florida, Massachusetts, Minnesota, Montana, New Jersey, and South Carolina
Center cases: Alaska, Florida, Minnesota, Montana, and South Carolina
Alaska’s Constitution recognizes the right to abortion as fundamental, including for minors and people who receive Medicaid. The right to privacy, and in some instances a guarantee of equal protection, encompass these protections. Both are stronger than under the U.S. Constitution. The Center has litigated in Alaska state court for over a decade to secure these rights and maintain abortion access for all.
Legal underpinnings: Alaska’s Constitution contains a right of privacy, which the Alaska Supreme Court has held protects the right to abortion. The Court has also held that the law must treat the decision to carry a pregnancy to term and abortion as legally equivalent choices and rejected state discrimination against people who make the decision to end a pregnancy. Alaska state court opinions recognize that people living on low incomes face high or unsurmountable barriers to abortion access, holding that excluding abortion from Medicaid coverage while funding pregnancy care burdens their fundamental right to decide whether to continue a pregnancy, in violation of equal protection.
Protections for abortion under the Florida Constitution are broader in scope than those in the U.S. Constitution and resulted from decades of ongoing litigation in Florida state court by the Center and partner organizations on behalf of the state’s providers.
Legal underpinnings: The Florida Supreme Court has recognized that the right of privacy in the state constitution protects abortion. Modeling a consistent rejection of government interference, the Court has treated abortion like other privacy rights, including medical decision-making and non-disclosure of personal information, that receive the most searching judicial scrutiny.
In Minnesota, the state Supreme Court has recognized that multiple provisions in the Minnesota Constitution protect abortion as a privacy right more broadly and strongly than the U.S. Constitution. The Court applied this right to hold that the state’s medical assistance program must fund abortion to make it accessible for people living on low incomes.
Legal underpinnings: The Minnesota Supreme Court has ruled that privacy rights—not just equal protection—require the state to fund abortion. The Minnesota Supreme Court explicitly rejected the U.S. Supreme Court’s reasoning in Harris v. McRae, which held that the federal Constitution does not require states to fund abortion on the same terms as other pregnancy care.
As discussed in Section I above, the Montana Supreme Court has found that the right to privacy in the state constitution protects abortion. By analyzing the provision’s history and drafting, the Court held that it extends a broad right of medical decision-making and procreative autonomy that includes abortion.
III. Anti-Discrimination Principle: Decisions Requiring Equal Treatment for People Seeking Abortion
The U.S. Supreme Court has not held that abortion restrictions violate the federal Constitution’s equal protection guarantees—which protect the right of people to be treated equally under the law. In one context—a challenge to Medicaid funding for abortion brought in Harris v. McRae—the Court rejected an equal protection claim and upheld policies that discriminate against pregnant people with low incomes. In contrast, high courts in several states have struck down laws that treat people seeking abortion differently from those who choose to continue pregnancies; and in one state, treated an abortion restriction as a form of sex discrimination, which federal courts have failed to do.
States that have recognized abortion restrictions as violations of equal protection: Alaska, Arizona, California, Iowa, New Jersey
State that has recognized abortion as a form of sex discrimination: New Mexico
Center cases: Alaska, Arizona, New Mexico
As discussed above, the Alaska Supreme Court first held that the state constitution’s right to privacy protects abortion. It later applied the constitution’s equal protection clause to extend protection to minors and people who rely on Medicaid funding for health care.
As a result of litigation brought by the Center, in 2002 the Arizona Supreme Court expanded access to abortion for people living on low incomes by requiring the state’s Medicaid program to cover abortion care when a pregnant person faced threats to health.
Legal underpinnings: The Arizona Supreme Court held that limitations on state funding for abortion violated the equal privileges and immunities clause of the Arizona Constitution, which has stronger protections than the U.S. Constitution. The Court recognized that pregnant people living on low incomes who face threats to their health must qualify for abortion funding to the same extent as pregnant people facing threats to their life, and that the state’s interest in promoting childbirth did not justify withholding funding.
In New Mexico, the state supreme court has ruled that the state’s Medicaid program must fund medically necessary abortions, expanding access for people living on low incomes.
Legal underpinnings: The Court’s opinion interpreted the Equal Rights Amendment in the state constitution, finding that it does not permit withholding benefits from women but not men on the grounds that only women become pregnant. The Court invalidated the state Medicaid program’s strict limitations on abortion funding by holding that they discriminated against women. To date, no other state supreme court has struck down abortion restrictions as sex discrimination, and neither have the federal courts.
IV. Abortion to Preserve Life and Health
Post-Dobbs, state supreme courts in North Dakota and Oklahoma heard challenges to near-total abortion bans that restricted abortion in medical emergency situations. While both state high courts declined to address whether a broader right to abortion exists in their state constitutions, they recognized that their state constitutions prevent states from banning abortion when necessary to preserve patients’ life and/or health.
The North Dakota constitution includes a guarantee of “inalienable rights, among which are those of enjoying and defending life and liberty; acquiring, possessing and protecting property and reputation; [and] pursuing and obtaining safety and happiness.” In a case brought by the Center on behalf of providers, the North Dakota Supreme Court upheld a preliminary injunction against an abortion ban that went into effect after Dobbs. The near-total ban allowed providers to raise an affirmative defense if prosecuted for providing an abortion to save the patient’s life. The court held that the North Dakota constitution protects the right to abortion to preserve life or health as fundamental, with restrictions subject to strict scrutiny. The court blocked the ban under this standard.
The Oklahoma constitution protects “inherent rights” and “due process” rights including “life” and “liberty.” In a case brought by the Center on behalf of advocates and providers in the state, the Oklahoma Supreme Court struck down a near-total abortion ban enacted in 2022 with a narrow “medical emergency” exception. It held that the Oklahoma constitution protects an inherent right to abortion when necessary to preserve life. It further held that the right extended beyond emergency scenarios where a patient’s life was in “actual and present danger,” and applied strict scrutiny to find the 2022 ban unconstitutional.
The Oklahoma Supreme Court subsequently struck total and 6-week bans subject to private enforcement under the same reasoning, holding that they did not adequately allow for abortion to preserve life.
Read more about the U.S. Supreme Court’s ruling.
Learn more about the June 24, 2022 ruling by the U.S. Supreme Court taking away the constitutional right to abortion in Dobbs v. Jackson Women’s Health Organization.