Since the Supreme Court was held in 2008, the majority of the Supreme Court members who are right-leaning have been Dobbs v. Jackson Women’s Health OrganizationMany states have outlawed or restricted abortion because the U.S. Constitution doesn’t protect it. California is one of these states that are trying to make abortion legal in their constitutions. Although the California Supreme Court has declared that the state constitution’s right to privacy protects abortion, that safeguard remains ephemeral.
1973 saw the establishment of the U.S. Supreme Court. Roe v. WadeAbortion is a fundamental human right. A state cannot prohibit it before fetal viability (the ability to live outside of the womb). Just as the U.S. Supreme Court retracted the abortion right when conservatives attained a majority, California’s Supreme Court could likewise rescind the right to abortion if the court’s membership were to shift to the right.
In August, Kansas voters rejected an amendmentThis would have specifically excluded the right of abortion from the constitution.
California, Michigan and Vermont voters will decide on November 8 whether they will amend their state constitutions in order to enshrine abortion rights. On the other hand, voters in Kentucky will vote for an amendment that specifically exempts abortion from constitutional protection.
Enumerated, and Unenumerated Constitutional Rights
The U.S. Constitution doesn’t specifically mention abortion as a protected rights. Because they are listed within the Constitution, these rights are enumerated. However, the Constitution does not list the rights to travel, vote or use contraception. They are however implied constitutional rights.
In Roe, the Supreme Court grounded the right to abortion in the Fourteenth Amendment’s Due Process Clause that protects personal liberty. The RoeThe court ruled that the government cannot interfere in individuals’ decisions about contraception, marriage and procreation, education, and child-rearing.
But in DobbsClarence Thomas, Neil Gorsuch. Brett Kavanaugh, Amy Coney Barrett and Amy Coney Barrett wrote that the Constitution did not contain any reference to abortion and that no constitutional provision implicitly guarantees it. In order to be protected by the Due Process Clause, Alito wrote, a right must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” The majority concluded that there is no liberty interest because the law didn’t protect the right to abortion in the 19th century.
In essence, DobbsIt was up the states to allow, restrict, or outlaw abortion.
Minimum eight statesAs interpreted by courts, they provide a right for women to have abortions in their state constitutions. They include Alaska and California, Florida, Illinois; Massachusetts; Minnesota, Montana, New Jersey and Massachusetts. They do not contain an explicit constitutional right, but courts have implied it by interpreting provisions that protect privacy and liberty.
California Constitution: Abortion Is an Unnumerated Rights
California law allows abortion before fetal viability and after viability if necessary to protect the mother’s life or health. 1969 saw the California Supreme Court rule in People v. Belous that women have “[constitutional] rights to life and to choose whether to bear children.” The court stated that “the fundamental right of the woman to choose whether to bear children follows from the Supreme Court’s and this court’s repeated acknowledgment of a ‘right of privacy’ or ‘liberty’ in matters related to marriage, family, and sex.”
1972: California voters approved Proposition 11, the Constitutional Right to Privacy Amendment which made privacy an inalienable human right in the California Constitution.
1981 was the year that the California Supreme Court ruled in Committee to Defend Reproductive Rights v. Myers that “the protection afforded the woman’s right of procreative choice as an aspect of the right of privacy under the explicit provisions of our Constitution is at least as broad as that described in Roe v. Wade. Consequently, we further conclude that the asserted state’s interest in protecting a nonviable fetus is subordinate to the woman’s right of privacy.”
The California State Legislature declared in the 2002 Reproductive Privacy Act that women have a “fundamental right to choose to bear a child or to choose and to obtain an abortion.”
The California Constitution doesn’t explicitly include the right to abort, despite legislative and judicial protections. California’s Supreme Court could decide to overrule. MyersAnd they believe that the constitutional right for privacy does not apply to abortion.
California voters will vote on whether to amend their state constitution in order to clearly protect abortion. Proposition 1 says: “The state shall not deny or interfere with an individual’s reproductive freedom in their most intimate decisions, which includes their fundamental right to choose to have an abortion and their fundamental right to choose or refuse contraceptives.” Proposition 1 states that the rights to abortion and contraceptives are specifically grounded in the California Constitution’s right to privacy and right to not be denied equal protection.
Alito however stated that the Dobbs ruling applies only to abortion, the court’s holding is based on the same precedents as the rights to contraception, same-sex sexual conduct and same-sex marriage. California’s Proposition 1 would also enshrine the right to contraception in the state constitution.
A recent pollIt was found that 71% of California registered voters intend to vote for Proposition 1
California Governor Gavin Newsom released the following statement on June 27, 2005 Executive Order N-12-22In this order, he stated that all state agencies are forbidden from providing patient records relating to reproductive care services for any investigation. Newsom’s order also says that his office will not honor arrest warrants from other states for individuals charged with criminal offenses for receipt of or assistance with reproductive health care services.
Ballot Measure Would Enshrine Right To Reproductive Freedom In Michigan Constitution
Michiganders will decide whether to amend their constitution to provide a right to reproductive freedom, which is defined in Proposal 3 as “the right to make and effectuate decisions about all matters relating to pregnancy, including but not limited to prenatal care, childbirth, postpartum care, contraception, sterilization, abortion care, miscarriage management, and infertility care.” The ballot measure states that Michigan can regulate abortion after fetal viability but cannot prohibit the use of abortion to “protect the life or physical or mental health of the pregnant individual,” as determined by the attending health care professional. Proposition 3 would also prevent the state from prosecuting anyone for having an abortion or miscarriage or from prosecuting an individual who assists a pregnant person in “exercising rights established by this amendment.”
“Michigan is in a uniquely precarious position at this time in history,” prominent Detroit civil rights attorney Julie Hurwitz told Truthout. The Michigan Supreme Court has declared unconstitutional a 1931 Michigan criminal statute prohibiting abortion. The court held that abortion is protected under the Michigan Constitution’s due process clause, as an implied right to bodily integrity. However, the due process right was only recognized in 2021 by the Michigan Supreme Court, in the context the Flint water crisis.
“These court rulings, however, are subject to further appellate review and to the realities of the intensely political nature of our judicial system,” Hurwitz said. “There is currently a Democratic majority on the court, but this could change at any time, which would open the door to a future Republican majority doing exactly what the U.S. Supreme Court just did with Roe v. Wade In the infamous Dobbs decision.”
Hurwitz added, “The historic success of the petition drive to get this constitutional amendment on the ballot — over 750,000 petition signatures, despite concerted efforts to block it — presents a unique opportunity to ensure that this fundamental right will no longer be able to be threatened in the State of Michigan.”
A recent pollProposition 3 is supported in Michigan by 67 percent of the likely voters
Vermonters Will Decide If a Constitutional Right is Created to Personal Reproductive Autonomy
Vermont legalizes abortion at all stages of pregnancy. In 2019, the Vermont State Legislature enacted a law that says, “The State of Vermont recognizes the fundamental right of every individual who becomes pregnant to choose to carry a pregnancy to term, to give birth to a child, or to have an abortion.”
However, like California and Michigan, the Vermont Constitution doesn’t explicitly guarantee the right to abortion.
Vermont voters will decide whether to amend their state constitution to create a constitutional right to personal reproductive privacy that protects “every person’s right to make their own reproductive decisions.” If adopted, the Reproductive Liberty Amendment would amend Article 22 to provide: “That an individual’s right to personal reproductive autonomy is central to the liberty and dignity to determine one’s own life course and shall not be denied or infringed unless justified by a compelling State interest achieved by the least restrictive means.”
More than 70% of Vermonters are alums supportThe amendment.
States with Constitutional Amendments Saying They Do Not Protect Abortion
Four states — Tennessee, Alabama, West Virginia Louisiana — have constitutional amendments declaring that their constitutions do not protect the right to abortion. Arkansas has a constitutional amendment that states, “The policy of Arkansas is to protect the life of every unborn child from conception until birth, to the extent permitted by the Federal Constitution.”
Kentucky is poised for outlawing abortion in its constitution
The Kentucky Court of Appeals was established on August 2. reinstated a ban on abortion. The Kentucky Supreme Court ruled that the abortion ban should remain in effect until it hears arguments from clinics who perform abortions and challenge two state laws.
2019 saw the Kentucky State Legislature become law a lawIf the U.S. Supreme Court revokes the ban, all abortions are prohibited in the state Roe. It would make aborting a baby a felony that could land you five years in prison.
Kentucky voters will now decide if Amendment 2 should be adopted which would amend the Kentucky Constitution to say that it does not “secure or protect a right” to abortion.
Amendment 2 reads: “Are you in favor of amending the Constitution of Kentucky by creating a new Section of the Constitution to be numbered Section 26A to state as follows: To protect human life, nothing in this Constitution shall be construed to secure or protect a right to abortion or require the funding of abortion?”
Only a state constitutional amendment can guarantee the right of abortion. We cannot trust the state supreme courts of progressive states to interpret their constitutions as implicitly allowing abortion. The state supreme court’s decisions can be reversed by subsequent courts, legislative enactments or voter initiatives.
“This is why it is so critically important for the right to abortion to be explicitly articulated in the language of our state constitution,” Michigan attorney Hurwitz said.