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State courts show a path forward for red-state abortion rights [1]

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Date: 2024-08-26  

When it comes to reproductive rights, news out of the federal courts is almost always bad. Those courts are stacked with conservative appointees, and even if litigants catch a break in lower courts, they eventually run into the anti-abortion buzzsaw of the U.S. Supreme Court. However, state courts can prove a bright spot, even in red states.

Last Wednesday, in Planned Parenthood v. Montana, the Montana Supreme Court threw out a law requiring minors to get parental consent for an abortion. The court got there partly because Montana’s state constitution contains two clauses not found in the federal constitution: one giving people under 18 all fundamental rights in the state constitution, and another stating that the right of individual privacy is “essential to the well-being of a free society” and cannot be infringed upon without a compelling state interest.

Since the federal constitution doesn’t contain an explicit right to privacy, a federal guarantee of that right is more complicated. In 1965’s Griswold v. Connecticut, the Supreme Court found that a right to privacy—specifically the right to use birth control—could be inferred by looking at the protections of the First, Third, Fourth, Fifth, and Ninth amendments together. That lack of an explicit constitutional guarantee is partly why abortion rights have been so fragile in federal courts.

In Montana, the state offered several possible compelling state interests, none of which landed. First, it argued the parental consent law was necessary to protect minors from sexual victimization. The court disposed of this, noting the law blocks a minor only from getting an abortion for a pregnancy that has already occurred; it does nothing to prevent any victimization that could result in pregnancy. Next, Montana said the law was necessary so a parent could monitor their child for post-abortion complications and mental health trauma. The court threw that out too, explaining abortion is extremely safe and there is no evidence having an abortion increases mental health issues. Finally, the state said parental consent laws protect minors from their own immaturity. While the court agreed that was a compelling interest generally, the state allowed those same immature minors to make any other pregnancy-related decision, such as carrying the pregnancy to term or giving a child up for adoption.

While Montana’s legislature has been red for several election cycles, Democrats held the governor’s office for 16 years, from 2005 to 2021. Montana’s constitution requires judges to be elected but allows the governor to make appointments when there is a vacancy. The appointed judge then must stand for election when their initial term ends. So the court’s current membership combines Republican and Democratic appointees and judges who were elected. Despite that combination, the decision to throw out the parental consent law was unanimous.

Here, the courts are working as they should. The Montana Supreme Court isn’t rubber-stamping the will of the conservative legislature or governor, leading a spokesperson for the Montana attorney general to complain the justices were “out of touch” because 70% of the state’s citizens had supported the parental consent measure in 2012. But it is not the job of the courts to enact the popular will. It is their job to act as a meaningful check and balance on the actions of the elected branches.

Utah Republicans are equally confused about this principle. Earlier this month, the Utah Supreme Court refused to lift a lower court’s injunction blocking the state’s near-total abortion ban from taking effect. This isn’t a decision on the merits of the case. Rather, it means the ban—a major shift from current abortion law in Utah, which allows for abortions up to 18 weeks—will not be inflicted on Utahns until the constitutional challenges are fully litigated. An injunction, as the state supreme court noted, preserves the status quo of the availability of abortion as it has been for nearly 50 years in the state. Additionally, the court ruled that Planned Parenthood had raised several serious issues about the constitutionality of the ban.

In Utah, the governor appoints lawyers and non-lawyers to judicial nominating commissions. Those commissions review applications and choose whom to interview. The commission then sends names to the governor, who must nominate someone from that list, and a majority of the state Senate must confirm that person. Judges retain their seats by running in nonpartisan, unopposed retention elections, where their names appear alone on the ballot.

This process still has some politics baked in. The governor gets to name people to the nominating commissions, and since Utah hasn’t had a Democratic governor since 1985, every justice currently on the court was nominated by a Republican. However, this mechanism of choosing judges, known as merit selection, is likely the best available. The commission limits whom the governor may choose, and if a judge loses their retention election, it just creates a vacancy, starting the merit nomination process over.

However, Utah legislators are unhappy with the independence of their judiciary on this issue, complaining about how it supposedly undermines the constitutional authority of the legislature to enact laws. Of course, it does no such thing. As with Montana, this is the judiciary working as intended—making an independent decision rather than simply enacting conservative policies.

To be fair, state constitutions and state courts are no magic wand. Georgia’s state courts have long held that the state constitution guarantees a right to privacy, but the state Supreme Court let a six-week abortion ban go into effect while litigation over it continues. And just over the state border, Florida uses merit selection and has a right of privacy in the state constitution, but the state Supreme Court threw out its own precedent and allowed a 15-week ban to go into effect earlier this year. (This ban has since been replaced by a much stricter, six-week ban.)

But unless there is comprehensive federal court reform sometime soon, state courts might be the best hope for abortion rights. The news outlet Bolts has a state-by-state guide to 2024’s state court races, and Montana and Michigan could see the balance of power on their high courts shift rightward, while Kentucky and Ohio could possibly shift left.

Conservatives are not going to try to stop banning abortion, so every state court seat matters.

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