A Volatile Tool Emerges in the Abortion Battle: State Constitutions
For abortion rights groups, state constitutions are a critical part of a strategy to overturn bans that have cut off access to abortion in a wide swath of the country. Those documents provide much longer and more generous enumerations of rights than the United States Constitution, and history is full of examples of state courts using them to lead the way to establish broad rights — as well as to strike down restrictions on abortion. They offer a way around gerrymandered state legislatures that are pushing stricter laws.
The Supreme Court’s decision has left abortion rights groups with few other options. In their most hopeful scenario, state courts and ballot initiatives to establish constitutional protections would establish a firmer guarantee for abortion rights than the one in Roe, which rested on a protection of privacy that was not explicit in the U.S. Constitution.
But just as abortion rights groups are trying to identify protections in state constitutions, anti-abortion groups are trying to amend those same documents to say they provide no guarantee of abortion rights.
And while the courts may appear to be the last word because their decisions are not subject to appeal, judges in 38 states have to face the voters. A change on the bench has sometimes meant that the same document found to include a right to abortion suddenly is declared not to include that right, in the space of a few years.
https://www.nytimes.com/2023/01/29/us/abortion-rights-state-constitutions.html
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