States have a lot of power at their disposal to protect the rights of their citizens — and the power to turn back those rights in the aftermath of the U.S. Supreme Court ruling on Dobbs vs. Jackson Women’s Health Organization, according to legal experts at a program presented Aug. 3 at the American Bar Association Annual Meeting in Chicago.
At the CLE showcase, “Not Just Abortion Rights: Rediscovering State Constitutional Protections in the Post-Dobbs Era,” panelists examined how state constitutions are being called upon to not only protect women’s reproductive rights but also rights that affect criminal defendants, voters and others.
The 2022 landmark Dobbs decision from the high court held that the U.S. Constitution does not confer a right to abortion and returned to individual states the power to regulate any aspect of abortion not protected by federal law.
While federal jurisprudence was thought to be the top dog in the past, “state courts and state constitutions are not second-class citizens. They are not fallback provisions,” said retired Iowa Supreme Court justice Brent Appel, who now teaches at Drake University Law School. Historically “state constitutional law has been very powerful and should be distinguished from federal cases.”
However, state constitutions can change with federal law and not protect individual rights, said Amy Myrick, senior staff attorney at the Center for Reproductive Rights. “We’ve seen some very quick flip-flops on abortion cases,” she said, pointing to states like South Carolina and Iowa that had protected abortion rights but have now overturned them.
“I don’t know if state courts offer more stability or can counteract what we’re facing on the federal level,” Myrick said.
Federal jurisprudence appears to ebb on the tide and flow of political influence, said Municipal Court Judge Richard Ginkowski of Pleasant Prairie, Wisconsin, and panel moderator. But that doesn’t just occur on the federal level, said Linda Sheryl Greene, dean of Michigan State University College of Law.
“We have become more and more aware of the way ideals expressed in political campaigns find their way into judicial decisions, and that’s not something confined to the U.S. Supreme Court. We also find it in state and local courts,” Greene said.
Voters are now beginning to understand the importance of state courts, said Michigan Supreme Court Justice Megan Cavanaugh, adding that “judges have to be accountable to the people who elect them.”
Although Roe vs. Wade was the law of the land that protected abortion rights for nearly 50 years, the Dobbs decision left it up to each state to determine reproductive rights and may be one of the first Supreme Court decisions that everyday people connected directly to their daily lives, Myrick said.
Dobbs made a giant difference in the volume of litigation in the states, she said.
Immediately after Dobbs, 23 states moved to restrict abortion. “Post-Dobbs, states have an enormous amount of power” regarding abortion rights, Myrick said. “We are in a new landscape in which how much they matter.” And we can expect additional litigation to chip away at those rights, she added.
Myrick acknowledged that ideas change over time about rights in states. But considering how things have changed in modern society, “Should an 1850 decision based on anti-immigration feelings and women domesticity bind us 100 years later?” Appel asked. “Really?”
Ginkowski offered several state constitution practice tips. For judges, he said if you decide a constitutional issue based on your state constitution, clearly and unambiguously say so. And for lawyers, don’t overlook possible state constitutional claims or fail to fully develop them.
Cavanaugh agreed. “It really matters how an attorney briefs a case.”
“Sometimes the humblest argument can surface to the top,” Ginkowski said.