Using State Constitutions to Protect Reproductive Rights

Reproductive rights are protected not only by the United States Constitution, but also by the constitutions of  the individual states. The protection afforded to reproductive rights by the federal constitution applies regardless of where in the country a person is located. Some state constitutions provide greater protection to people within those states. Where the state constitution recognizes rights to privacy or gender equality that are more extensive than those recognized in the federal constitution, state constitutional challenges can provide an effective strategy for defending and expanding reproductive rights.

For example, the constitutions of Alaska, California, Florida and Montana, unlike the federal constitution, have explicit provisions that protect the right of privacy. Supreme Courts in each of those states have relied on those privacy provisions to strike down restrictions on abortion that would be allowed under the federal constitution. In other states, courts have interpreted other state constitutional provisions—such as Equal Rights Amendments in New Mexico and Connecticut and a privileges and immunities clause in Arizona—to extend greater protection to women seeking abortions than the protection afforded by U.S. Supreme Court decisions.

CRR has litigated a number of cases under state constitutions, including successful challenges to parental involvement for abortion requirements in Alaska, Florida, and Montana. Using state constitutional claims, CRR has gotten court orders requiring Minnesota and West Virginia to fund medically necessary abortions in their state Medicaid programs, just as they include all other medically necessary health services. In Arizona and Indiana, CRR was able to secure funding for women whose pregnancies pose a serious threat to their health. In Montana, CRR blocked a law prohibiting physician's assistants from performing abortions. In North Dakota a trial court has blocked enforcement of a law that would ban medication abortions based on that state’s constitution. And in Oklahoma, trial courts have ruled that restrictions on medication abortion and an intrusive and unnecessary requirement requiring women to hear a description of their ultrasound image violate the Oklahoma Constitution. Each of these victories accomplished a result that would not have been available under the federal constitution. The Montana law, for example, was upheld by the U.S. Supreme Court against a federal constitutional challenge; it was struck down by the Montana Supreme Court on state constitutional grounds.

Although claims that state constitutions provide greater protection than the federal constitution are not always successful, this strategy remains an important tool for securing reproductive rights in many states, and may become even more important given the uncertainty over whether the U.S. Supreme Court will continue to weaken the protections afforded by the federal constitution.

Click here for an in-depth look at the importance of state law if the U.S. Supreme Court overturns Roe v. Wade >

Read about our current state constitutional challenges in Alaska.

Victories won by CRR using state constitutions

Arizona Supreme Court decision extending Medicaid coverage to medically necessary abortions
Florida Supreme Court decision striking down a parental involvement law
Montana Supreme Court decision rejecting a law that required only physicians to perform abortions
Alaska Supreme Court decision striking down a parental involvement law
New Mexico Supreme Court decision requiring state Medicaid program to cover medically necessary abortions
West Virginia Supreme Court decision requiring state Medicaid program to cover medically necessary abortions