Post-Dobbs Abortion Litigation Under Federal and State Constitutional Law
Dobbs’ Impact on Abortion Litigation in the Federal Courts
Dobbs not only refutes that abortion is a substantive due process right, but it also forecloses any claim that abortion is protected under the Equal Protection Clause or any other constitutional provision. As the Court writes, “a State’s regulation of abortion is not a sex-based classification and is thus not subject to the ‘heightened scrutiny’ that applies to such classifications.” “[T]he ‘goal of preventing abortion’ does not constitute ‘invidiously discriminatory animus’ against women.” The majority concludes that “laws regulating or prohibiting abortion are not subject to heightened scrutiny. Rather, they are governed by the same standard of review as other health and safety measures.” Similarly, “[t]he Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision . . . .”
Federal courts now will review abortion litigation under a rational basis review. The Court explains: “[u]nder our precedents, rational-basis review is the appropriate standard for such challenges. As we have explained, procuring an abortion is not a fundamental constitutional right because such a right has no basis in the Constitution’s text or in our Nation’s history.” Accordingly, “States may regulate abortion for legitimate reasons, and when such regulations are challenged under the Constitution, courts cannot ‘substitute their social and economic beliefs for the judgment of legislative bodies.’” The Court recognizes that:
These legitimate interests include respect for and preservation of prenatal life at all stages of development . . . the protection of maternal health and safety; the elimination of particularly gruesome or barbaric medical procedures; the preservation of the integrity of the medical profession; the mitigation of fetal pain; and the prevention of discrimination on the basis of race, sex, or disability.
Furthermore, “[a] law regulating abortion, like other health and welfare laws, is entitled to a ‘strong presumption of validity.’”
Accordingly, no federal right or interest protects abortion. Rather, federal policy is pro-life policy. Our country has a robust history of abortion funding restrictions and conscience protections. Consequently, the federal executive branch, including administrative agencies, do not have the power to protect abortion “rights.” The State of Texas has raised this type of ultra vires argument in its challenge to President Biden and the Department of Health and Human Services’ Emergency Medical Treatment and Labor Act (EMTALA) “abortion mandate,” which requires hospitals and emergency medicine physicians to perform abortions in certain circumstances.
What About State Constitutional Law?
In our post-Roe world, constitutional litigation over abortion has moved from the federal courts to state courts. State judiciaries may interpret state constitutions more broadly than the federal constitution. Just before the Dobbs decision, the Center for Reproductive Rights published a report on state constitutional abortion rights, urging activist litigation to manufacture new abortion “rights.” Unfortunately, some state judiciaries already have contrived a state constitutional abortion right. These states include Alaska, California, Florida, Illinois, Kansas, Massachusetts, Minnesota, Montana, New Jersey, New York, and Washington. In Arizona and New Mexico, the state supreme courts devised constitutional protections for state Medicaid funding for “medically necessary” abortions.
Recently, abortionists have filed lawsuits attempting to invent state constitutional abortion rights. These lawsuits include constitutional challenges in Idaho, Kentucky, Michigan, North Dakota, Ohio, Oklahoma, and Utah. Although abortionists had raised a constitutional challenge in Mississippi, a district court found “it is more than doubtful that the Mississippi Supreme Court will continue to uphold [Pro-Choice Mississippi v.] Fordice,” which had devised a state constitutional abortion right based upon Roe and Casey. The abortionists subsequently dismissed the lawsuit after the abortion business closed and they had no legal basis to proceed in litigation.
However, there is a growing trend to overrule constitutional rights to abortion. In addition to the Supreme Court overturning Roe and the Mississippi district court revisiting Fordice, Iowa, and Tennessee have overturned cases that extended constitution protection to abortion. In 2018, the Iowa Supreme Court fabricated a state constitutional abortion right. Yet one week before the Supreme Court issued Dobbs, the Iowa Supreme Court reversed its previous decision in Planned Parenthood of the Heartland, Inc. v. Reynolds, holding that abortion is not a fundamental right under the state constitution. The court states that its previous decision “lacks textual and historical support. It is doctrinally inconsistent with prior Iowa jurisprudence concerning family rights that followed a balancing approach. Its rhetoric is one-sided. Its constitutional footing is unsound.” In response to the Tennessee Supreme Court’s concoction of constitutional protection for a woman to “legally terminate her pregnancy,” the people of Tennessee amended its constitution by referendum, declaring “[n]othing in this Constitution secures or protects a right to abortion or requires the funding of abortion.”
Other states are reconsidering whether the state constitution protects abortion. In Kansas, voters are considering the “Value Them Both Amendment” which would amend the state constitution to recognize “[b]ecause Kansans value both women and children, the constitution of the state of Kansas does not require government funding of abortion and does not create or secure a right to abortion.” In Montana, the State has raised a legal challenge to Armstrong v. State, which devised a state constitutional abortion right, saying “the Armstrong Court inextricably linked Montana’s right to privacy to the decision in Roe” and that legal reasoning is gone because of Dobbs. In Florida, a legal challenge over the state’s fifteen-week gestational limit implicates In re T.W., which manufactured constitutional protection for abortion.
Dobbs impacts state constitutional litigation over abortion. Some state court decisions have explicitly relied upon Roe and Casey’s legal reasoning, such as the Armstrong decision in Montana and In re T.W. in Florida. These cases are open for pro-life challenges. If a state judiciary wants to keep these abortion “rights,” then it would have to engage in judicial activism and rewrite their previous decisions, much like the Supreme Court did in Casey.
Even if a state judiciary interpreted its state constitution independently of the federal Constitution, and, thus, did not rely upon Roe and Casey, Dobbs has exposed that decision to a pro-life challenge. Dobbs thoroughly considered and rejected the notions that abortion is protected by legal tradition or privacy law.
In terms of legal tradition, the Dobbs majority engaged in an extensive historical analysis of abortion, delving into both the American legal tradition and the Western legal tradition. As discussed above, America had an “overwhelming consensus” of abortion criminalization “until the day Roe was decided.” At common law, “abortion was a crime at least after ‘quickening’—i.e., the first felt movement of the fetus in the womb, which usually occurs between the 16th and 18th week of pregnancy.” The Court elaborates that “[a]lthough a pre-quickening abortion was not itself considered homicide, it does not follow that abortion was permissible at common law—much less that abortion was a legal right.” Rather, “common-law authorities differed on the severity of punishment for abortions committed at different points in pregnancy, [but] none endorsed the practice.” Accordingly, abortion has no basis in American or Western legal tradition. Cases that relied upon a historical or natural law basis, such as Kansas in Hodes & Nauser which found an “inalienable natural right of personal autonomy [to abortion],” must contend with the Supreme Court’s well-researched conclusion into the legal history and tradition regarding abortion.
Any state reliance on Roe’s flawed “right to privacy” foundation also seems problematic after Dobbs, given the Dobbs majority’s analysis of precedents involving constitutional privacy. Even though the “[Roe] Court found support for a constitutional ‘right of personal privacy,’ . . . it conflated two very different meanings of the term: the right to shield information from disclosure and the right to make and implement important personal decisions without governmental interference.” The Court continues: “[o]nly the cases involving this second sense of the term could have any possible relevance to the abortion issue, and some of the cases in that category involved personal decisions that were obviously very, very far afield,” such as Pierce v. Society of Sisters and Meyer v. Nebraska. “What remained was a handful of cases having something to do with marriage . . . or procreation . . . . But none of these decisions involved what is distinctive about abortion: its effect on what Roe termed ‘potential life.’” Abortion is unique from other privacy interests because the procedure involves the killing of an unborn human being. Cases that invoked state constitutional protections of privacy, such as Alaska’s Valley Hospital Association, must reconcile their legal analysis of privacy law against the Supreme Court’s holding that abortion’s “uniqueness” means the procedure is distinct from other areas of privacy law.
In sum, abortionists are seeking to devise state constitutional abortion rights, but Dobbs is a strong pro-life precedent to use in these litigation battles. Litigants can use Dobbs’ analysis of the legal history and tradition of abortion, as well as the impact of privacy law upon abortion, to raise pro-life challenges to existing abortion “rights” under state constitutions.
The future is bright now that the Supreme Court has reversed Roe and Casey. The undue burden standard is defunct and federal courts will apply rational basis review to abortion litigation instead. Dobbs thoroughly refuted that abortion has any basis in our Constitution, legal history, or tradition. Consequently, many state constitutional abortion “rights” have tenuous legal reasoning post-Roe. Abortionists may have moved the battle to state courts, but Dobbs is a powerful pro-life precedent to rebuff judicial activism seeking to contrive state constitutional protections for abortion. Going forward, we must continue to work until the law protects all human beings, from conception until natural death.
 Dobbs, slip op. at 10 (majority).
 Id. at 11 (citation omitted).
 Id. at 5–6.
 Id. at 77.
 Id. (citations omitted).
 Id. at 78.
 Id. at 77 (citation omitted).
 See, e.g., Pub. L. No. 94-439 tit. II, § 209, 90 Stat. 1418, 1434 (1976) (“None of the funds contained in this Act shall be used to perform abortions except where the life of the mother would be endangered if the fetus were carried to term.”).
 See, e.g., Church Amendment, 42 U.S.C. § 300a-7 (2000); Danforth Amendment, 20 U.S.C. § 1688 (1988); Coats-Snowe Amendment, 42 U.S.C. § 238n(a) (1996).
 State of Texas v. Becerra, No. 5:22-CV-185 (N.D. Tex. filed July 14, 2022).
 State Constitutions and Abortion Rights, Ctr. for Reprod. Rts. (2022), https://reproductiverights.org/wp-content/uploads/2022/05/State-Constitutions-Report-5.12.22.pdf.
 Valley Hosp. Ass’n v. Mat-Su Coal. for Choice, 948 P.2d 963 (Alaska 1997).
 People v. Belous, 458 P.2d 194 (1969); Comm. to Def. Reprod. Rts. v. Myers, 625 P.2d 779 (1981).
 In re T.W., 551 So. 2d 1186 (Fla. 1989).
 Hope Clinic for Women, Ltd. v. Flores, 991 N.E.2d 745 (Ill. 2013).
 Hodes & Nauser, MDS, P.A. v. Schmidt, 440 P.3d 461 (Kan. 2019).
 Moe v. Sec’y of Admin. & Fin., 417 N.E.2d 387 (Mass. 1981).
 The Women of the State of Minn. v. Gomez, 542 N.W.2d 17 (Minn. 1995).
 Armstrong v. State, 296 Mont. 361 (Mont. 1999).
 Right to Choose v. Byrne, 450 A.2d 925 (N.J. 1982).
 Hope v. Perales, 634 N.E.2d 183 (N.Y. 1994).
 State v. Koome, 530 P.2d 260 (Wash. 1975).
 Simat Corp. v. Ariz. Health Care Cost Containment, 56 P.3d 28 (Ariz. 2002).
 Boyd v. Johnson, 975 P.2d 841 (N.M. 1998).
 Planned Parenthood Great Nw., Haw., Alaska, Ind., Ky. v. State of Idaho, No. 49615-2022 (Idaho filed Mar. 30, 2022) (challenging Idaho’s six-week heartbeat protection modeled after Texas S.B. 8); Planned Parenthood Great Nw., Haw., Alaska, Ind., Ky. v. State of Idaho, No. 49817-2022 (Idaho filed June 27, 2022) (challenging Idaho’s conditional law).
 EMW Women’s Surgical Ctr., P.S.C. v. Cameron, No. 22-CI-3225 (Ky. Cir. Ct. filed June 27, 2022) (challenging Kentucky’s conditional law and six-week heartbeat protection).
 Planned Parenthood of Mich. v. Att’y Gen. of the State of Mich., No. 22-000044-MM (Mich. Ct. Cl. filed Apr. 7, 2022) (challenging Michigan’s pre-Roe law); Whitmer v. Linderman, No. 2022-193498-CZ (Mich. Cir. Ct. filed Apr. 7, 2022) (challenging Michigan’s pre-Roe law).
 Access Indep. Health Servs., Inc. v. Wrigley, No. 08-2022-CV-01608 (N.D. Dist. Ct. filed July 7, 2022) (challenging North Dakota’s conditional law).
 State ex rel. Preterm-Cleveland v. Yost, No. 2022-0803 (Ohio filed June 29, 2022) (challenging Ohio’s six-week heartbeat protection).
 Okla. Call for Reprod. Just. v. State of Oklahoma, No. 120376 (Okla. filed Apr. 28, 2022) (challenging Oklahoma’s six-week heartbeat protection modeled after Texas S.B. 8).
 Planned Parenthood Ass’n of Utah v. State of Utah, No. 220903886 (Utah Dist. Ct. filed June 25, 2022) (challenging Utah’s conditional law).
 Jackson Women’s Health Organization v. Dobbs, No. 25CH1:22-CV-739, slip op. at 6 (Miss. Ch. Ct. July 5, 2022) (citing Pro-Choice Mississippi v. Fordice, 716 So. 2d 645 (Miss. 1998)) (denying a preliminary injunction against Mississippi’s conditional law and six-week heartbeat protection).
 Emily Wagster Pettus & Leah Willingham, Mississippi Clinic Ends Challenge of Near-Ban on Abortion, Associated Press (July 19, 2022), https://apnews.com/article/abortion-us-supreme-court-health-jackson-state-courts-5df14f3344a89d86eb2fb1272a21448c.
 Planned Parenthood of the Heartland v. Reynolds ex rel. State, 915 N.W.2d 206 (Iowa 2018).
 Planned Parenthood of the Heartland, Inc. v. Reynolds ex rel. State, No. 21-0856 (Iowa June 17, 2022); see Carolyn McDonnell, Iowa Supreme Court: Abortion Isn’t a “Fundamental Right”, Ams. United for Life (June 17, 2022), https://aul.org/2022/06/17/iowa-rules-no-fundamental-right-to-abortion/.
 Planned Parenthood of the Heartland, Inc., No. 21-0857, slip op. at 60.
 Planned Parenthood of Middle Tenn. v. Sundquist, 38 S.W.3d 1, 15 (Tenn. 2000).
 Tenn. Const. art. I, § 36.
 Value Them Both Amendment, H. Con. Res. 5003, 2021-2022 Leg., Reg. Sess. (Kan. 2021).
 296 Mont. 361.
 Appellant’s Notice of Supplemental Authority, Planned Parenthood of Mont. v. Montana, No. DA 21-0521 (Mont. June 27, 2022).
 551 So. 2d 1186.
 296 Mont. at 377 (“[T]here is no reason why this [federal] right [to abortion] would not also be encompassed within the broader personal autonomy protections afforded by the fundamental right of individual privacy guaranteed by Article II, Section 10 of the Montana Constitution.”).
 551 So. 2d 1186 (extensively citing federal abortion in determining the state constitution protected abortion).
 505 U.S. 833 (affirming Roe’s central holding of a constitutional right to a pre-viability abortion but discarding Roe’s litigation standard and refusing to adopt Roe’s legal reasoning).
 Dobbs, slip op. at 24.
 Id. at 16.
 Id. at 18.
 Id. at 19–20.
 440 P.3d at 497.
 Dobbs, slip op. at 48–49.
 Id. at 49.
 268 U.S. 510 (1925).
 262 U.S. 390 (1923).
 Dobbs, slip op. at 49.
 948 P.2d 963.