To Advance Reproductive Justice on the Federal Level, Abortion Should Move to the States – N.Y.U. Journal of Legislation & Public Policy

By Leora Einleger

March 4, 2024

The million-dollar question: What should the future legal doctrine of the reproductive justice movement look like in America? My personal background in grassroots community organizing and my experience as a student advocate in the NYU Reproductive Justice Clinic lead me to believe that the future of abortion rights needs to be rooted in state constitutional doctrine. I believe the reproductive justice movement must leverage the benefits of the U.S. federalist system and the uniqueness of its 50 decentralized constitutional frameworks and bodies of jurisprudence to litigate and establish reproductive rights on a state-by-state basis.¹

Within each state, lawyers should work closely with activists on the ground to determine the best litigation strategy to secure the right to access and obtain abortions. Instead of pigeonholing abortion rights into one federal framework, future doctrine should capitalize on the uniqueness of American constitutionalism which allows each state to locate their own source of the right to abortion. Lawyers should look to other successful states as models and consider creative arguments when identifying the source of abortion rights in a state’s constitution. The source could be located in substantive due process rights to privacy or equal protection clauses of state constitutions, or even in state guarantees of natural and human rights. The movement should remember, as Justice Goldberg wrote in Griswold, that the spirit of liberty is inherent in our Constitution and thus it is not necessary to uniformly confine abortion rights, nor any other substantive right, to a specific constitutional provision.² Reproductive justice movement lawyers should ground abortion rights state-by-state in the strongest doctrinal basis available.

Equally important, by focusing on the right to abortion in the states, the movement could shift federal efforts to other reproductive justice issues more amenable to national-level change such as issues of pregnancy criminalization or maternal mortality. While the approach I outline would take longer and be more burdensome than attempting to reinvent a singular federal abortion doctrine in the aftermath of Dobbs, it has the strongest chance of ensuring long-term access to abortion for as many Americans as possible while also enabling important advances in other areas of reproductive justice at both the state and federal level.

Locating a State’s Right to Abortion in Substantive Due Process, Equal Protection, Natural Rights, or Human and Positive Rights.

Since the spirit of liberty and personal autonomy permeates all levels of our democracy, the existence of abortion rights does not hinge on where exactly a state chooses to root its abortion doctrine. Nonetheless, movement lawyers must root the doctrine somewhere. Lawyers seeking to positively establish a doctrine of abortion rights may, therefore, find the following unexhaustive list informative in selecting such a source for rights-affirming jurisprudence.

Substantive Due Process to Privacy — Even after the Supreme Court overturned Roe v. Wade and its subsequent cases, reproductive justice lawyers could still root the right to abortion in a state constitution’s substantive due process right to privacy. This doctrine could mirror Roe, finding that a right to privacy extends over the decision to obtain an abortion.³ Several states go further than the federal standard established in Roe, finding an explicit right to privacy in state constitutions rather than interpreting privacy as a penumbral right.⁴

Equal Protection Clause — Legal scholars have long flirted with the argument that abortion rights could be rooted in a state’s equal protections clause.⁵ Lawyers could argue that forcing a woman, but not a man, to carry to term even though they both engaged in sexual relations violates equal protection.⁶ An equal protection approach could also focus on pregnancy regulations as sex-based classifications which should be subject to heightened scrutiny.⁷

There is already state case law finding that abortion restrictions violate state equal protection clauses. For example, the Alaska Supreme Court found their state’s right to equal protection to be stronger than those found in the federal constitution.⁸ Applying equal protection doctrine has led to greater state-level protections for reproductive justice as compared to those at the federal level.⁹

Natural Rights — Natural rights inherently support the right to abortion. This is not an argument seen on the federal level, but it has the potential to establish a fundamental right to abortion subject to strict scrutiny in the states.¹⁰ The court in Hodes & Nauser explains that since natural rights are found in the state constitution but not the federal constitution, state constitutional protections for liberty are both distinct from and broader than their federal counterparts.¹¹

Human Rights and Positive Rights — States could also adopt or strengthen human rights and positive rights frameworks into their constitutions.¹² This method would be more in line with the reproductive justice movement as a combination between reproductive rights and social justice. The argument could be made that rather than freedom from government intervention to abortion as we once had on the federal level, state constitutions ensure that governments owe people they govern certain positive rights and not providing these positive rights is an affront to humanity.¹³

Benefits of a State-by-State Approach

A state-by-state approach to abortion rights allows the reproductive justice movement to capitalize on U.S. federalism and benefit from decentralization. The benefits include more productive and effective community and relational organizing and more accountability for elected officials and judges.

First, community organizing efforts are more attainable and effective on the local level. Being able to localize efforts on state issues should help community organizers succeed in their outreach. It takes time and effort for activists to get to know a community and tailoring a national message to local needs proves difficult. In my experience working as a community organizer for NARAL Pro-Choice America, I found that New Yorkers were more eager to get involved in helping to replace members of the Independent Democratic Conference, a group of Democrats in the New York State Senate who caucused with Republicans and thus prevented the Reproductive Health Act from being passed, than helping to advance federal legislation or calling voters in a different state to which they had no connection.¹⁴

Second, many of the relational organizing strategies like personal interactions and conversations that lead to change are easier and more effective on the local level. Reverend Robert Schenck is a perfect example. For over twenty years, Rev. Schenck led an aggressive and manipulative anti-abortion organization in the U.S. In an interview with the New York Times’ Podcast ‘The Daily,’ Rev. Schenck describes his quite sudden change of heart. He was in jail for breaking the law while protesting abortion when he met a woman who he believed had a mental illness. She was screaming for someone to help her children while she was in jail. He recalls that no one in the prison seemed to care and no one came to this woman’s aid. At that moment, he understood that when he would convince women not to get abortions and they ultimately carried their pregnancy to term, his vision of what happens after was all wrong. He imagined a mother with enough money, resources, and support to raise a happy, healthy family. But the experience of the woman he met in jail is very often the harsh reality.¹⁵ This sort of interpersonal experience that leads to important change can more easily be used to mobilize a shift in state policy where there are fewer stakeholders, players, and obstacles than on the federal level.

Third, localizing abortion rights efforts can also help address accountability issues for elected officials who continuously vote against abortion rights despite widespread support. It is no secret that the structure of the U.S. Senate allows for Americans in more rural states to have more say than Americans in more populous states (think North Dakota versus California). This reality helps explain why we do not see more federal support for abortion when six out of ten Americans support the right.¹⁶ By moving the issues to the states, the preferences of those six out of ten Americans are more likely to be instituted because elected officials on the local level more accurately represent their constituents since local officials are likely more responsive to constituents. This could result not only in expanded access for people within a state where abortion is legal, but also for people from neighboring states who travel to states where it is legal.

Fourth, it is easier to hold judges accountable on the local level since many are elected rather than appointed. There is thus more accountability on the local level for judges veering from state constitutional guarantees of liberty and bodily autonomy. This could help address some of the counter-majoritarian problems of the federal court system.

Finally, focusing on states could also lead to the local advancement of other reproductive justice concerns beyond abortion. If litigators and activists turn their attention to the states, they may become aware of local systems that perpetuate inequality on the local level similar to my experience with the Independent Democratic Conference described above. For example, voters may pay closer attention to the experience of local pregnant persons as healthcare patients or the systemic and racialized problems of parents involved in the family regulation system. Once attention is on the states, these local problems are easier to identify and address.

Reproductive Justice Beyond Abortion on the Federal Level

The shift I describe not only helps protect abortion rights in America but also enables the movement to address some of its less polarizing platform issues on the national level. I look to Loretta Ross’ theory of change here as a model.¹⁷ There is likely more commonality between the “95 percenters” and the “50 percenters” on issues such as a parent’s right to raise a child in a healthy environment or the right of pregnant people to take needed breaks at work than there are commonalities on abortion rights. This difference should be used to the advantage of the reproductive justice movement. Decentralizing abortion from the national reproductive justice discussion could help ensure the passage of the Federal Pregnant Workers Fairness Act, something people with opposing views on abortion can support, especially when it is not discussed in conjunction with abortion. In an environment that decentralizes the fight for abortion, perhaps overturning Geduldig v. Aiello would be possible given the troubling assumptions and holdings in the majority opinion.¹⁸

Additionally, while not devaluing, decentralizing abortion rights could help the movement focus on positive rights over negative rights. Perhaps shifting the federal debate could help the reproductive justice movement also confront and address the limits of the traditional liberty framework. Liberty means freedom from state intervention; it does not entitle citizens to government action. Liberty makes it seem like the right to choose is an individual choice and not circumscribed by conditions of one’s own life.¹⁹ The framing of reproductive rights as an issue of liberty is a serious failure and one that does not accurately reflect the experiences of most people seeking reproductive care. A shift to the states on abortion may leave space for federal issues to address this important distinction.

For millions of Americans, this post-Dobbs world is frightening. The implication of the decision is profound and will inevitably cause many deaths of people seeking to obtain reproductive health care. It is the job of the reproductive justice movement and its lawyers to minimize the consequences of Dobbs and get to work to find state constitutional protections for abortion while pushing other reproductive equity and justice issues on the federal level.

Leora Einleger, J.D. Class of 2024, N.Y.U. School of Law.

Suggested Citation: Leora Einleger, To Advance Reproductive Justice on the Federal Level, Abortion Should Move to the States, N.Y.U. J. Legis. & Pub. Pol’y Quorum (2024).

1
It seems like many of the leading reproductive justice impact groups are headed this way post Dobbs, whether they think it is a good strategy or not. I think they should further embrace this strategy and recognize the freedom and space it gives them to deal with other reproductive justice issues via federal courts and legislation.
2
Griswold v. Connecticut, 381 U.S. 479, 486 (1965) (Goldberg, J., concurring) (“the concept of liberty protects those personal rights that are fundamental, and is not confined to the specific terms of the Bill of Rights.”).
3
See Roe v. Wade, 410 U.S. 113, 153 (1973).
4
E.g., Mont. Const. art. II, § 10 (“The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest.”).
5
See e.g., Brief of Equal Protection Constitutional Law Scholars Serena Mayeri, Melissa Murray, et al. as Amici Curiae in Support of Respondents at 7, Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022) (No. 19-1392) [https://perma.cc/CX22-HF63]; Anita L. Allen, The Proposed Equal Protection Fix for Abortion Law: Reflections on Citizenship, Gender, and the Constitution, 18 Harv. J. L. & Pub. Pol’y 419, 428, 438, 453, 455 (1994-1995).
6
See Hall v. Lefkowitz, 305 F. Supp. 1030, 1031 (S.D.N.Y. 1969) (dismissed as moot because the New York State legislature liberalized its abortion laws mid-litigation).
7
See Mayeri et al., supra note 5, at 7.
8
See State v. Anthony, 810 P.2d 155, 157 (Alaska), on reh’g, 816 P.2d 1377 (Alaska 1991) (“Alaska’s equal protection clause is more protective of individual rights than the federal equal protection clause.”).
9
See Planned Parenthood of The Great Nw. v. State, 375 P.3d 1122, 1139–40, 1145 (Alaska 2016) (holding that disparate treatment of pregnant minors who sought to carry their pregnancy to term and pregnant minors who decided to end their pregnancy violated state equal protection); see also State v. Planned Parenthood of the Great Nw.,436 P.3d 984, 1005 (Alaska 2019) (holding that differentiating Medicaid funding between abortion care and other pregnancy care was not narrowly tailored to serve the state interest of preserving Medicaid funds and violated the state equal protection clause), Simat Corp. v. Ariz. Health Care Cost Containment Sys., 203 Ariz. 454, 460 (2002) (finding that permitting state funding of abortion for women who were victims of rape or incest and when necessary to save their life but denying funding to women whose medical conditions were serious but not life-threatening was a violation of the state’s equal protection clause), N.M. Right to Choose/Naral, Abortion & Reprod. Health Servs., Planned Parenthood of the Rio Grande v. Johnson, 126 N.M. 788, 802-04 (holding that a state statute which prohibited state funding for abortions except when medically necessary to save the life of the woman or in cases of rape or incest violated the state’s equal rights amendment).
10
See Hodes & Nauser v. Schmidt, 440 P.3d 461, 483 (Kan. 2019) (holding that bodily autonomy and the right to obtain an abortion is embedded in the “natural right” to “liberty” under Section 1 of the Kanas constitution bill of rights).
11
See id. at 471.
12
See Robert Williams, State Protections of Human Rights, American Bar Association, https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/2014_vol_40/vol_40_no_2_civil_rights/state_protection_of_human_rights/ (explaining that New Jersey has constitutionalized the right to collective bargaining and New York’s constitution guarantees a “prevailing wage” pay for workers on public projects).
13
See Loretta Ross & Rickie Solinger, Reproductive Justice Intersectionality: Do Differences Divide 9-10 (2019); see also Reproductive Justice Briefing Book: A Primer on Reproductive Justice & Social Change, https://www.law.berkeley.edu/php-programs/courses/fileDL.php?fID=4051 (arguing that reproductive justice is more than mere freedom from government intervention but requires the government to not only ensure abortion is legal but that it is also safe, affordable and accessible).
14
Focusing on state abortion doctrine and policies could also lead people to learn about other areas of state law which need improving like the criminal justice system or voting disenfranchisement.
15
The Daily, A Secret Campaign to Influence the Supreme Court, N.Y. Times, at 31:38 (Nov. 19, 2022), https://podcasts.apple.com/us/podcast/the-daily/id1200361736.
16
Hannah Hartig, About six-in-ten Americans say abortion should be legal in all or most cases, Pew Research Center (June 13, 2022) https://www.pewresearch.org/fact-tank/2022/06/13/about-six-in-ten-americans-say-abortion-should-be-legal-in-all-or-most-cases-2/.
17
Black Feminist Rants, Ep 2. Loretta Ross, (July 8, 2020), https://podcasts.apple.com/us/podcast/black-feminist-rants/id1520060736?i=1000483647958 (explaining that, on a continuum from 100 percenters who fully support the reproductive justice movement to 25 percenters who support Trump and to 0 percenters who are outright fascists, the movement should focus on speaking to the 50 and 75 percenters who share some ideas with the 100 percenters but may not be well versed in the language of the movement).
18
17 U.S. 484, 496-97 (1974). The Court held that California’s decision not to include pregnancy as an eligible disability in the state’s disability insurance system was afforded rational basis review and was not an equal protection violation. The Court also explained that the program did not discriminate based on sex, as not all women are or become pregnant and therefore the class of non-pregnant people includes both men and women.
19
See Dorothy Roberts, Killing the Black Body: Race, Reproduction, and the Meaning of Liberty 513-15 (1998).