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Dobbs, State Constitutions, and Federalism

Justin Stapley




In the wake of the Dobbs v. Jackson ruling in 2022, the Supreme Court experienced what appeared to be a collapse of legitimacy in the eyes of the American people. As measured in two Yahoo surveys, one in 2020 and one conducted shortly after the Dobbs decision was leaked in 2022, trust in the Court had shrunk from 70% to 51%. This growing sense of illegitimacy is even more acute among pro-choice Americans, many of whom are calling for various approaches to reform the court in order to re-establish the Roe abortion regime, either through expanding its size or by introducing various limits on its present members, such as term limits and increased Congressional oversight and regulation.







Challenges to the legitimacy of political institutions are always serious affairs, and thoughtful political actors of all stripes should look upon such developments with concern. But despite this troubling level of distrust that has arisen when it comes to the courts, there are some surprising developments in the post-Roe world. Specificall, the overturning of Roe and the decentralization of the abortion question appears to have breathed life into procedural federalism and, specifically, state-level constitutionalism.


the overturning of Roe and the decentralization of the abortion question appears to have breathed life into procedural federalism and, specifically, state-level constitutionalism.

Before the decision in Dobbs overturned Roe, there was a popular misconception that without the provisions of Roe, all abortion would be criminalized overnight. This explains the dramatic backlash against the Court in the wake of the Dobbs decision and its collapse of legitimacy as viewed by the broader public. One day, Americans lived in a world where abortion rights were codified by judicial precedent at the federal level and were un-assailable by even super majorities of voters in the States, and the next day, there were no federal protections left at the national level whatsoever.


In the immediate wake of Dobbs, both the public and most commentators have viewed it as a court case that ruled on the question of abortion. But, as we begin to observe the actual impact of the case, Dobbs is also fundamentally about federalism.


Such observations are already beginning to take root in certain segments of the academic community and intellectual scholarship. A study published in the April edition of Publius is a case in point. The authors observe that “One effect of the Dobbs decision, evident in actions taken by some state legislatures, has been to open a window for states to enact laws imposing greater limits on reproductive options for women. However, another effect of Dobbs has been to create a greater demand for confirming and in some cases expanding reproductive rights, as seen by state constitutional amendments.”(1)


another effect of Dobbs has been to create a greater demand for confirming and in some cases expanding reproductive rights, as seen by state constitutional amendments.


Legal scholars have forecasted this trend for many years. To take just one example, the author of a 2006 article in the Fordham Law Review argues that “states' rights arguments [are becoming] attractive to progressives, especially in the areas of same-sex marriage and abortion. The current state of politics has caused progressives to look for solutions in new places.”(2)


From one perspective, the abortion question can be seen as a triggering mechanism for the court to consider its own role in deciding matters of deep moral disagreement in a large, complex republic. And the Dobbs decision, rather than answering the question of abortion for the public, has reasserted the role federalism can play in the public debate on contentious issues and the process of developing consensus in a diverse and pluralistic society.


Initially, in the wake of Dobbs, pro-choice advocates watched seemingly helplessly as the provisions protecting abortion they supported were gutted from judicial precedent and states across the country. Additionally, pro-life majorities began enacting state laws with the most restrictive pro-life provisions imaginable.


Much of the early pro-choice efforts post-Roe remained focused on the Supreme Court, such as when the Dobbs decision was leaked early, leading to the picketing of Justices’ houses in hopes of pressuring them toward a different inclusion, or through the various mechanisms mentioned earlier to reform the court and re-establish Roe as constitutional law. But a turning point occurred in August of 2022 when voters in Kansas shot down a proposed pro-life amendment to the Kansas State Constitution, despite Kansas typically being considered a pro-life state.


a turning point occurred in August of 2022 when voters in Kansas shot down a proposed pro-life amendment to the Kansas State Constitution, despite Kansas typically being considered a pro-life state.

Suddenly, pro-choice activists’ sense of hopelessness in the face of Roe’s absence was turned to a more aggressive optimism as they had discovered an eminently accessible tool to re-assert abortion rights: state constitutional referenda.


By the end of 2022, state constitutions in California, Michigan, and Vermont had enshrined abortion rights, and pro-life constitutional amendments in Kansas, Kentucky, and Montana had been defeated.





Not only did the pro-choice movement no longer feel lost and ambling without federal protections behind their stance, some felt they had discovered new influence at the state level as voters reacted to the uncertainties of the post-Roe world. So powerful was this issue at the state level that partisan operatives in both parties began mobilizing locally, and in ways that would dramatically alter electoral dynamics, suppressing support for typically pro-life Republicans and driving support for typically pro-choice Democrats.


In 2023, this trend has compounded, as illustrated by the recent constitutional referendum in Ohio. Long considered a swing state, Ohio has trended far more solidly Republican in the last decade. The present political power structure in Ohio is dominated by the Republican Party. The GOP in the Buckeye State commands a trifecta in state government, controlling the governorship and both chambers of the state legislature, and has a clear majority in Ohio’s Congressional Delegation. Nevertheless, Ohio Issue 1, a constitutional referendum enshrining the right to abortion in the Ohio State Constitution, passed with surprisingly strong support in the recent fall elections, gaining 56% support from voters.


So, not only have pro-choice activists found a way to enshrine abortion rights in solidly pro-choice states, not only have they been able to block pro-life constitutional referenda in traditionally pro-life states, they have now demonstrated an ability to wield state constitutional referenda to completely surpass pro-life dominance in state-level political party dynamics and enshrine abortion rights in state constitutions. One could argue that pro-choice activists have evolved in a dramatically short time frame from total despondency at the inability to maintain a federally mandated, court-driven abortion regime into a state-by-state driven movement that has engaged in a masterclass of federalism-oriented activism.


Pro-life Americans are understandably devastated that the long-awaited repeal of Roe has failed to translate into the type of pro-life protections they had long assumed would be easily enacted with restrictive court precedent out of the way. If Dobbs was supposed to be a pro-life decision, it has failed thus far to move the needle toward the pro-life movement’s desire to protect unborn life.

Pro-life Americans are understandably devastated that the long-awaited repeal of Roe has failed to translate into the type of pro-life protections they had long assumed would be easily enacted with restrictive court precedent out of the way. If Dobbs was supposed to be a pro-life decision, it has failed thus far to move the needle toward the pro-life movement’s desire to protect unborn life.

But Dobbs as a decision on federalism, as a surrender of the power accumulated by the court predicated on Roe and now returned to the people in the States, is thus far a surprising success, as evidenced by the evolution of the pro-choice effort, previously focused on abortion as a national issue but now becoming effective and adept as, at least, procedural federalists.


It is doubtful pro-choice activists have had the last word. The pro-life movement is currently experiencing similar despondency. But the ongoing debate on this issue and the process of establishing consensus that Dobbs has unleashed is only beginning. And while the Dobbs decision has indeed damaged the legitimacy of the Supreme Court, at least for the time being, the people now have access to levers of power far more wieldy and responsive than the courts. The pro-life movement has suffered a series of devastating defeats at the hands of a political opposition that pivoted rapidly and effectively to state-level efforts (while they perhaps overindulged in unrealistic post-Roe dreams of federal protections for the unborn). But in facing these defeats on the abortion issue, this time around, they won’t have to wait for a fifty-year legal movement to work its way through the lower courts and into the Supreme Court to overturn an entrenched and difficult-to-overturn legal precedent. They will have little choice but to re-embrace the issue as a state issue and embrace the new procedural federalism that is the real legacy of the decision in Dobbs.



 

Sources


  1. Martin K Mayer, John C Morris, Joseph A Aistrup, R Bruce Anderson, Robert C Kenter, Dobbs, American Federalism, and State Abortion Policymaking: Restrictive Policies Alongside Expansion of Reproductive Rights, Publius: The Journal of Federalism, Volume 53, Issue 3, Summer 2023, Pages 378–404, https://doi.org/10.1093/publius/pjad012

  2. Jordan Goldberg, The Commerce Clause and Federal Abortion Law: Why Progressives Might Be Tempted To Embrace Federalism, 75 Fordham L. Rev. 301 (2006). Available at: https://ir.lawnet.fordham.edu/flr/vol75/iss1/8


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