This month’s race for an open seat on the Wisconsin Supreme Court is now officially the most expensive judicial election in history, with total spending topping $100 million. The election attracted the attention of donors from across the political spectrum, including the ACLU Voter Education Fund, George Soros, and Americans for Prosperity. Groups affiliated with Elon Musk, the billionaire ally of President Donald Trump, funneled $21 million into the campaign of Brad Schimel, the conservative former attorney general.

Yet his opponent, trial judge Susan Crawford, who was endorsed by the state Democratic Party, won the race by roughly 10 percentage points, maintaining a 4–3 liberal majority on the court.

The race attracted so much attention partly because the court is set to decide two major abortion cases this year. Abortion thus played a central role in the campaign, with Crawford stressing her experience representing Planned Parenthood of Wisconsin and accusing Schimel of not trusting women to make their own health care decisions. Schimel, who maintains that he is against abortion, argued that the issue should be left to voters.

A Constitutional Abortion Right

One of the two key abortion cases facing the court this year hinges on whether the Wisconsin Constitution recognizes a right to abortion. Last year, the Wisconsin Supreme Court agreed to hear a case about an 1849 law that state Republicans interpret to ban virtually all abortions from the moment of fertilization. The law provides that “any person, other than the mother, who intentionally destroys the life of the unborn child” can be convicted of a felony unless the procedure was necessary to save the life of the pregnant person.

In the case, Planned Parenthood v. Urmanski, Planned Parenthood is asking the court to rule — without waiting on a decision from the lower courts — that interpreting the 1849 law as a ban on abortion would violate the state constitution. “The right to life and liberty, including the right to make one’s own decisions about whether or not to give birth and medical decisions related to pregnancy or abortion care from a chosen health care provider,” the organization asserts, “is fundamental.” Planned Parenthood also argues that if it operated as a ban, the 1849 law would violate the constitutional rights of doctors to practice their chosen profession.

Joel Urmanski, the Republican district attorney for Sheboygan County named as a respondent in the case, has said in briefing that the Wisconsin Supreme Court generally interprets the state constitution in the same way that the U.S. Supreme Court interprets equivalent provisions of the federal Constitution. Because the U.S. Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization overturned the federal constitutional right to abortion, Urmanski argues that the Wisconsin Constitution similarly lacks abortion protections.

Even if the Wisconsin high court didn’t follow Dobbs, Urmanski argues that the outcome should be the same. He urges the court to discern the “original meaning” of the state constitution and insists that at the time of the state constitution’s ratification, no one thought there was a right to abortion.

Planned Parenthood, by contrast, spotlights decisions from other states recognizing a right to abortion after Dobbs. It further argues that Wisconsin’s tradition regarding abortion is far richer than Urmanski suggests, maintaining that abortion was common and at least somewhat accepted when the state constitution was written.

The parties are also clashing over what bearing the state constitution’s provisions on equal protection have on abortion rights. Planned Parenthood argues that the 1849 law would violate state protections against sex discrimination, while Urmanski stresses that Dobbs rejected an equal protection argument for abortion rights and invites the Wisconsin Supreme Court to do the same.

A Feticide Law?

Ultimately, the Wisconsin Supreme Court may not have to address whether the state constitution protects an abortion right, depending on the outcome of Kaul v. Urmanski, a case argued before the court in November.

Josh Kaul, the state’s Democratic attorney general, concluded that the 1849 law was a feticide law — punishing only those who terminated a pregnancy against a pregnant person’s wishes — not an abortion ban. Fetal homicide statutes aren’t unusual; 38 states currently have some version of such a law. Convinced that the 1849 law fit in the same category, Kaul filed suit to establish that Wisconsin providers can’t be prosecuted for abortions performed with the patient’s consent. Even if the 1849 law did ban abortions, Kaul argued, later Wisconsin restrictions implicitly overrode it, particularly a 2015 law banning abortion at 20 weeks. In 2023, a trial court agreed with Kaul, and Urmanski appealed the decision.

Kaul will turn on what the high court makes of the 1849 law — particularly, how to make sense of it in light of its 1994 ruling in State v. Black. In that case, Glenndale Black violently assaulted his pregnant partner days before her due date and caused her to miscarry. Black was prosecuted under the 1849 law but argued that the law criminalized only “consensual medical abortions,” not feticide. He also claimed that steps taken by the state legislature to comply with Roe v. Wade had implicitly repealed the 1849 law. The court in Black rejected both those arguments, reasoning that the law clearly prohibited feticide and that the court generally didn’t interpret a later statute to repeal an earlier one. Moreover, the court reasoned that it was important to interpret state statutes to effectuate all their goals, when possible. That meant interpreting the 1849 law to prohibit feticide, which would not contradict the intent of later legislation to protect abortion access.

Black will play a central role in the disposition of Kaul. On the one hand, as Urmanski argues, the court has previously rejected the claim that a later law, like the 20-week ban from 2015, implicitly repeals an earlier one. On the other hand, as the assistant attorney general representing Kaul explained during the oral arguments, the court already interpreted the statute as a feticide law in Black. Kaul’s lawyer also argued that there was no way for both laws to stand if the 1849 law was an abortion ban because Wisconsin courts only permit two statutes on the same subject to stand when they address different purposes or have different scopes. If the 1849 law is an abortion ban, then both laws would have the same objective: setting the gestational limit for legal abortion.

At oral argument, the court seemed divided about how to resolve Kaul. But the justices were clearly skeptical of the constitutionality of a ban on abortion at fertilization. It seems probable that one way or another, the court’s four-justice majority will rule in a way that permits legal abortion in Wisconsin. That result seems even likelier in the wake of the recent election solidifying the liberal majority.

The Court’s Reasoning Matters

But how the court reaches this result will matter too. It’s possible that the court will embrace some of Planned Parenthood’s broader constitutional arguments. If the court recognizes the right of physicians to perform abortions, for example, that would make it easier to challenge any new abortion ban in court. Importantly, other state supreme courts are rethinking whether doctors should have standing to sue on their patients’ behalf.

And if the court offers an especially convincing rationale for abortion rights — perhaps one rooted in equality — that might make it harder to undermine or even overturn such a ruling in the future.

Of course, the court could reach a much narrower decision: It might rule that the 1849 law simply isn’t an abortion ban. Such an outcome would obviate the need for the court to consider whether a ban violates the state constitution.

• • •

Whatever happens will not just ensure that abortion remains accessible in Wisconsin. After the demise of federal constitutional abortion rights, state supreme courts have moved to the center of struggles over what their constitutions have to say about abortion. For that reason, we should expect the Wisconsin Supreme Court’s rulings to shape the terms of debate in other states.

Mary Ziegler is the Martin Luther King Jr. Professor of Law at the University of California, Davis School of Law. Her new book, “Personhood: The New Civil War over Reproduction,” comes out this week. 

Suggested Citation: Mary Ziegler, Wisconsin Supreme Court Election Spells a Win for Abortion Rights,  Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ(Apr. 22, 2025), https://statecourtreport.org/our-work/analysis-opinion/wisconsin-supreme-court-election-spells-win-abortion-rights

Lawsuits in New Jersey and Vermont raise state constitutional questions about surveillance of pregnant patients, illustrating that pregnant people may be subjected to intense scrutiny and surveillance while bringing a pregnancy to term, even in states that protect abortion rights.

Nonconsensual Drug Testing in New Jersey

In September 2024, the New Jersey attorney general filed a lawsuit against hospital network Virtua, alleging that pregnant patients were drug tested without their knowledge and that their (sometimes false) positive results were reported to child protective services, resulting in monthslong investigations of new mothers.

The complaint highlights the stories of two women who tested positive because each had recently eaten poppyseed bagels. Urine tests are commonly given to pregnant patients to check their protein levels. Both women assumed their urine was being taken for that reason, not to be tested for drugs.

In addition to ingestion of poppy seeds, the use of blood pressure drugs like ephedrine and phenylephrine can result in positive urinalysis test results, the Marshall Project reports. Yet prescribed drugs can trigger a report to the state child protection agency; Virtua must report any substance exposure during pregnancy “regardless of the reasons for which infants may experience exposure,” the complaint alleges. Additionally, according to the Marshall Project, doctors and social workers often do not have experience in reading drug test results, which may lead to inaccurate reporting.

There is no national standard for drug testing of pregnant patients, the complaint explains, but the larger medical community does not recommend blanket drug testing. Instead, the American College of Obstetricians and Gynecologists, the American Society of Addiction Medicine, and the World Health Organization recommend verbal screening to assess a patient’s potential exposure to drugs.

Virtua reported the false test results to New Jersey’s child protection agency, the complaint says, which opened investigations into potential child abuse. New parents were subjected to intense scrutiny, including unannounced home visits and interviews, and they lived with fear that their newborns could be taken from them at any moment.

The complaint alleges that Virtua’s universal testing of pregnant patients and regular practice of not obtaining their consent — without comparable policies or practices for anyone else admitted to the hospital — violates New Jersey’s Law Against Discrimination. Hospitals are “places of public accommodation,” the complaint explains, which may not discriminate on the basis of any of the classifications in the law, including sex, pregnancy, and breastfeeding. The complaint also alleges that Virtua’s failure to obtain consent violates the state constitution’s guarantee of the right to privacy and substantive due process.

Within weeks of the attorney general’s lawsuit, Virtua announced that it was no longer performing blanket drug testing of pregnant patients.

Vermont’s List of Pregnant People Deemed Unsuitable for Parenthood

Another lawsuit brought this year by the ACLU of Vermont and Pregnancy Justice illustrates a different kind of surveillance of pregnant people by health care and social services providers. The complaint — filed on behalf of an anonymous plaintiff known as A.V. against the Vermont Department for Children and Families, Copley Hospital, and family services and treatment provider Lund — alleges that after the department received unverified reports about A.V.’s mental health during her pregnancy, it began an investigation into her parental capacity without notifying her.

Over the course of its investigation, the agency received confidential information from Lund and Copley about A.V.’s pregnancy, including her medical records and birth plan, the complaint alleges. According to the complaint, the agency determined that A.V. was not fit to care for the as-yet unborn child, and unbeknownst to A.V., it filed an emergency ex parte order requesting custody while she was in labor. 

After the child was born, A.V. alleges that she was not allowed to touch or hold her baby. The state took immediate custody of the newborn, she says, which was not returned to her until seven months later. No mental health evaluation was ordered or performed, and “no court ever found that [the plaintiff] lacked parental capacity,” she claims.

The complaint further alleges that the state agency “maintains a ‘high-risk pregnancy docket’ or ‘high-risk pregnancy calendar’ to target and track pregnant Vermonters it deems supposedly unsuitable for parenthood.” These determinations are made based on confidential information obtained by the agency from “medical providers and social services organizations,” the complaint says, even when no allegation of child abuse or neglect has been made against the pregnant person.

The complaint alleges that these actions violated A.V.’s state constitutional rights to bodily and medical autonomy and freedom from unreasonable searches and seizures. It further states that the use of a “high-risk pregnancy docket” violates the Vermont Constitution’s right to privacy, reproductive autonomy, due process, and protection against sex discrimination. The complaint further alleges that the defendants’ actions also ran afoul of the state Freedom of Choice Act — which “encompasses the choice of whether, when, and how to give birth” — and the Vermont Fair Housing and Public Accommodations Act by discriminating against A.V. on the basis of her perceived mental impairment. 

The state moved to dismiss the lawsuit last month, asserting that the agency acted within its authority and that A.V.’s state constitutional interests were adequately protected by the statutory procedures the agency followed. With respect to the “pregnancy docket” allegations, the state noted only generally that it “disputes Plaintiff’s characterizations of [the agency’s] practices in these regards” and argued that A.V. lacked standing “because she was never a part of a pregnancy calendar.”

Rights Contraction for Pregnant People in States that Protect Abortion Rights

Voters in Vermont amended the state constitution to enshrine the right to obtain an abortion in 2022. New Jersey protects abortion by statute, and the state supreme court has ruled that the state constitution guarantees the “fundamental right of a woman to control her body and destiny,” even absent explicit abortion protections.

But the interventions described in the lawsuits seemingly violate the tenets of bodily autonomy that undergird the right to abortion. The conduct alleged shows that even in states that protect the choice to end a pregnancy, the same animating principles of bodily autonomy and privacy do not extend to a pregnant person once they decide to carry a pregnancy to term. Indeed, the Vermont agency argues in its motion to dismiss that the “plaintiff does not claim that she ever sought to terminate a pregnancy, so statutory and constitutional provisions prohibiting the State from interfering in such decisions are simply irrelevant here.” Once a person forgoes the option to terminate a pregnancy, the state seems to presume that it is permitted to surveil and interfere with the pregnancy and attendant health care decisions.

Professor Khiara M. Bridges describes a similar dynamic in her book The Poverty of Privacy Rights. The book outlines the intense scrutiny that poor parents, in particular, are subject to during pregnancy because they rely on government assistance. If you need government assistance, the reasoning seems to go, you give up your right to make health decisions and your right to privacy because you have “invited” the care of a state actor.

What’s more, the defendants in both the New Jersey and Vermont cases appear animated by logic reminiscent of fetal personhood: ascribing rights to a fetus in utero, often at the expense of the pregnant person. Fetal personhood laws take many forms. In states like Alabama, Mississippi, Oklahoma, and South Carolina, the definition of child abuse has been expanded to include behavior of the pregnant person during pregnancy. In 2024, the Alabama Supreme Court famously decided that frozen embryos have the same protection as born children under a state wrongful death law.

Bias Against Patients of Color

While the concept of fetal personhood has attracted more extensive attention after the U.S. Supreme Court eliminated the federal right to abortion in Dobbs v. Jackson Women’s Health Organization, the movement dates back to the 1970s — just as the Court recognized the right to abortion in Roe v. Wade. As Dana Sussman of Pregnancy Justice told NPR in the wake of the Alabama Supreme Court decision, fetal personhood “did not gain traction until . . . the late 80s and early 90s . . . when the war on drugs was on a collision course with the war on abortion.”

Any discussion of the war on drugs must include its disastrous effects on communities of color. The war on drugs fueled a national panic about crack cocaine use by pregnant people, resulting in wildly disproportionate levels of state intervention and incarceration of Black parents. In a similar vein, limits on reproductive health care and state surveillance always hit poor and marginalized communities the hardest, to say nothing of the disparate outcomes Black parents face in receiving maternal health care in this country.

Although neither lawsuit mentions racial bias, the reality is that communities of color are over-tested, over-policed, and over-surveilled — and pregnancy is no exception. A study published in JAMA Health Forum in 2023 states, “Black patients, regardless of history of substance use, had a greater probability of receiving a [Urine Toxicology Testing] at delivery compared with White patients and other racial groups.” However, the study went on, “Black patients did not have a higher probability of a positive test result than other racial groups.”

Similarly, Black parents are much more likely than other racial groups to have their children removed by state agencies, as was the case for the Vermont plaintiff. “National estimates suggest that 53% of Black children will experience [child protective services] contact by age 18, as compared to 28% of White children,” one study found. Some scholars have noted that Black families are “disproportionately likely to be involved with [child protective services] because they [are] disproportionately likely to be poor,” and poverty is sometimes confused with neglect. 

• • •

As these two lawsuits illustrate, true reproductive freedom requires more than access to abortion. The rights of pregnant people across the country may be curtailed even in states that seemingly protect reproductive rights, privacy, and bodily autonomy.

Julia R. Livingston is an attorney in private practice.

Suggested Citation: Julia R. Livingston, Pregnancy Surveillance Prevalent Even in States Committed to Protecting Right to Abortion, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ(Apr. 23, 2025), https://statecourtreport.org/our-work/analysis-opinion/pregnancy-surveillance-prevalent-even-states-committed-protecting-right

Originalism — a method of constitutional interpretation that focuses on “history and tradition” as a basis for assessing constitutional rights — has become a point of debate in state court judicial philosophy.

Some jurists, like Massachusetts Justice Frank Gaziano, say that originalism “risks perpetuating the discrimination and subordination of the past.” Others, like Wisconsin Supreme Court Justice Rebecca Dallet, point out that “taken to its logical conclusion, it would result in the radical rejection of long-settled constitutional principles” — including “virtually all rights of women and racial minorities.” Still others, like North Carolina Justice Anita Earls, argue that originalist approaches can “paint a distorted picture of a constitution’s historical understanding.” Originalism’s defenders, meanwhile, say it respects “the policy-making role of the legislature” — as Idaho Supreme Court Justice Robyn Brody put it in a decision upholding the constitutionality of the state’s strict abortion ban.

Amid this robust exchange, Justice R. Patrick DeWine of the Ohio Supreme Court advances a unique justification for originalism in state constitutional analysis. His approach, which builds on the distinct features of state judiciaries and constitutions, joins the judicial chorus shouting down state interpretations that follow or “lockstep” with federal ones.

This chorus coincides with the curtailment of federal constitutional rights through recent U.S. Supreme Court opinions, many of which relied on originalist approaches. For example, originalism shaped Dobbs v. Jackson Women’s Health Organization, which declared that the U.S. Constitution does not confer a right to an abortion, and Students for Fair Admissions v. Harvard, which struck down race-conscious admissions policies at Harvard and the University of North Carolina. Five of the current nine justices on the nation’s highest court are self-proclaimed originalists: Samuel Alito, Amy Barrett, Neil Gorsuch, Brett Kavanaugh, and Clarence Thomas. These justices carry the torch of the late Justice Antonin Scalia, among the most prominent originalists in American jurisprudence, who helped usher in a brand of originalism that heavily relies on historical evidence — contemporaneous writings, dictionaries, and legislative history — to determine the original meaning of the text.

The recent dominance of originalism in the Supreme Court has led policymakers, scholars, and practitioners alike to look to state constitutional law to provide broader protections for individual rights. Indeed, there is a growing call to recognize additional rights that voters have legitimately adopted — directly or indirectly — through their state constitutions. Because state constitutions are relatively easy to amend, the rights enshrined within them can provide insight into the values of the people of the state.

Federalism — the American system of government in which certain powers are reserved for the states — shapes originalist interpretations of state constitutions by emphasizing their independent authority while recognizing their historical ties to the U.S. Constitution. Because many state constitutions were drafted in the shadow of federal constitutional principles, originalists often interpret them through a lockstepping approach, aligning state constitutional rights with analogous federal provisions. Indeed, originalism can constrain state courts from expanding protections beyond federal baselines, even when textual differences between the federal and state constitutions exist.

DeWine’s interpretative method, which he outlines in a forthcoming article, embraces originalism while addressing some of these concerns. He outwardly rejects automatic lockstepping — but nonetheless centers historical context and textual analysis as the key interpretive guidelines.

Requiring courts to ground their interpretations in state-specific values as they existed at the time of a provision’s adoption, DeWine says, compels the judiciary to acknowledge and engage with the distinct policy choices and innovations that the state has pursued within its constitutional framework. This approach reinforces the principle that states serve as laboratories of democracy, in which diverse legal and political experiments shape rights and governance. By tethering judicial analysis to historically accepted state norms, courts ensure that constitutional interpretation remains faithful to the unique trajectory of each state’s democratic development and preserves the autonomy of state constitutional law.

Crucially, DeWine’s framework is tailored to the unique features of state constitutions. For example, DeWine leans heavily on voter accountability to support the legitimacy of originalism as a method of state constitutional interpretation in Ohio and other applicable states. The vital link between popular sovereignty and judicial review of state constitutional amendments, according to DeWine, is an elected judiciary. Unlike federal judges, justices of the Ohio Supreme Court are elected, which arguably allows the electorate to influence judicial philosophy. DeWine emphasizes the ability of Ohio voters to replace jurists who misinterpret popular public opinion, something that voters cannot do at the federal level.

DeWine’s framework centers on an understanding of contemporaneous Ohioans, not the intentions and opinions of colonial-era officials who lived in a society far removed from this one. In that sense, this method remedies at least one prominent criticism against the application of originalist interpretation to state constitutions: that originalism prioritizes outdated views, stifling modern governance and its ability to respond to changing demographics and political landscapes.

DeWine’s framework is already embedded in Ohio case law. DeWine’s majority opinion in 2022’s Cincinnati Enquirer v. Bloom advocates for the reexamination of prior state decisions that reflexively lockstepped with federal decisions. The ruling leans on the ways in which the text, purpose, and history of the relevant state constitutional provisions differ from their federal counterparts. And in a concurrence in a case about criminal sentencing, DeWine wrote separately to redirect the analysis to a state constitutional approach and applied his framework to interpret a constitutional provision regarding the finality of a criminal controversy.

The long-term impact that DeWine’s special brand of originalism might have on individual rights in Ohio is still unclear. Should the other justices be swayed by DeWine’s approach, this year’s calendar includes many opportunities for the Ohio Supreme Court to revisit and revise previously accepted interpretations of the state constitution and the individual rights that it protects. The term is expected to bring rulings regarding public records, police reform, and the right to counsel. One case currently before the court asks it to redefine “unreasonable search and seizure” based on an independent examination of Article I, Section 14. The outcome could mark the start of an avalanche of reinterpretations of the Ohio Constitution and ultimately reshape the relationship between the people and state government.

State constitutions can only broaden personal freedoms beyond those at the federal level. But should the court determine that the local understanding of certain terms is narrower than verbiage used by the founders, it could curtail state-level fundamental rights established in previously settled case law.

Ainslee Johnson-Brown is a constitutional law scholar and advocate specializing in judicial interpretation and the evolving role of state courts in protecting democracy.

Suggested Citation: Ainslee Johnson-Brown, Ohio’s Justice DeWine Attempts to Address Criticisms of Originalism, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ(Apr. 21, 2025), https://statecourtreport.org/our-work/analysis-opinion/ohios-justice-dewine-attempts-address-criticisms-originalism