Post-Dobbs, The Abortion Battle Hits Activist State Courts

June 27, 2022

Part 1 of 3

On Friday, the U.S. Supreme Court declared it was returning the authority to regulate or prohibit abortion “to the people and their elected representatives.” The abortion lobby, however, has no intention of leaving the legality of abortions to the American public. Instead, it will seek to create an abortion-on-demand regime via activist state judges. Countering this strategy must take priority, or Dobbs will be for naught.

In Dobbs v. Jackson Women’s Health Organization, the Supreme Court overturned Roe v. Wade and Planned Parenthood v. Casey and held there is no federal constitutional right to abortion. Contrary to the misperception of some, the reversal of Roe and Casey did not make abortion illegal. Rather, Dobbs removed stringent judicial oversight on abortion laws.

Pre-Dobbs, under the controlling Casey framework, any law passed by a legislative body, whether Congress or a state legislature, was subjected to judicial scrutiny to determine whether the statute imposed an “undue burden” on a woman’s alleged right to have an abortion. That standard of judicial review prevented elected lawmakers from regulating abortion in most ways and left many universally supported laws, such as bans on abortion after 20 weeks, voided by judicial fiat.

What Dobbs did in overturning Roe and Casey was restore “the Constitution’s neutrality” to the issue of abortion and return the “authority to address the issue of abortion through the processes of democratic self-government established by the Constitution” to the people.

The abortion lobby and the extreme abortion left do not want “the people” to have a say, however, and have been working for years to ensure that if Roe and Casey were overturned, abortion-on-demand would remain the law of the land. To circumvent the democratic process, abortion apologists have been turning to activist state court judges for years.

Working to Lock Down State Courts

Long before Dobbs came down, the Center for Reproductive Rights, an abortion advocacy organization, has been implementing this strategy. “For decades,” the Center bragged recently, it “has brought cases in state courts to strengthen abortion rights and guarantee access beyond the federal system’s growing constraints.” The state courts “offer wider possibilities,” the Center explained, with each state having “a unique constitution and court system that is free to protect reproductive autonomy under novel legal theories and rights.”

Currently, the high courts in at least nine states have held a right to abortion exists in the state constitution separate and distinct from the federal constitutional right to abortion declared in Roe and Casey, making the Supreme Court’s Friday decision in Dobbs irrelevant in those states.

That left-wing state justices in California and Massachusetts would find a right to abortion in their states’ constitutions should come as no surprise, but it is not merely blue states where activists have found success with this approach. Rather, this strategy worked even in Kansas, which has voted for Republican presidential candidates in every election cycle but one since 1940.

In 2019, in response to a lawsuit brought by two abortion providers challenging a state law that criminalized dismemberment abortions—in which live fetuses are killed by being ripped apart limb by limb—the Kansas Supreme Court declared for the first time that the state’s constitution provides a fundamental right to abortion. That decision, Hodes and Nauser v. Schmidt, thwarted the will of Kansans, “who have consistently elected one of the most pro-life and pro-active state legislatures in this country.”…continued

https://thefederalist.com/2022/06/27/post-dobbs-the-abortion-battle-hits-activist-state-courts/