When the US Supreme Court dismantles federal constitutional rights to abortion Dobbsv. JacksonWomen’s Health in 2022, It also turbo-powered court-organized history and tradition tests to determine the circumstances of constitutional rights.
The state courts are not bound dobbs Or the originality of the brand, its impact on the state courts that decide abortion rights lawsuits, cannot be denied. In 9 posts –dobbs State High Court abortion decisions, four — Florida, Idaho, Indiana, Iowa — addressing the role of history and traditions directly in the analysis of state constitutional rights, reflect mainly reasons. dobbs. However, the high courts in at least five states, Kansas, North Dakota, Oklahoma, Pennsylvania and Utah, consider historical evidence of opinions that have accepted a broader interpretation of the composition of the state to protect abortion and related rights to varying degrees. Three of these decisions illustrate how state courts diverge or reject them entirely. dobbsUse of originality.
Most dobbs They concluded that the substantial due process under the US Constitution only protects rights “deeply rooted in the history and traditions of the country.” Abortions were not included, the majority said it was evidenced by the criminalization of abortions “from the early days of common law” and the lack of a “positive” right to abort before ratification of the Fourteenth Amendment. According to law professor Melissa Murray, the analysis has been widely criticized for its past inaccurate and outcome-driven explanations that link the rights of the historic era that “women and people of color were explicitly excluded from political participation and deliberation.”
These flaws may warn Serena Meillili’s warning, but they may tempt them to “relinquish any methodology that appears in the past as a right to today or as relevant constitutional principles.” But Meiri instead calls for an effort to “take an important approach to history – shape a more just future in order to understand the past to understand all its complexities.” High court decisions from Utah, Pennsylvania and Kansas show how this will be done.
2024 Utah Planning Association vs. Statethe Utah Supreme Court has upheld a provisional injunction against the state’s abortion ban, pending a final decision on the plaintiff’s allegation that it violates the equal rights clause of the state’s constitution and its unrecognised right to decisions on physical integrity and family life. The court dismissed the notion that the national constitution cannot protect the right to abortion because of Utah’s history of criminalizing abortion, explaining that the challenge is to determine the principles enshrined in the constitution, not to apply the principle “just like the founding generation.” He further emphasized that “the inability to distinguish between principles and the application of these principles will lead to hostage of prejudice in the 1890s.”
Critical considerations of history are also injecting the 2024 decision of the Pennsylvania Supreme Court Allegheny Reproductive Health Center v. Pennsylvania Department of Welfare. The court held that excluding the scope of abortion care under the state’s Medicaid plan would be subject to a strict scrutiny under Pennsylvania’s equal rights amendment. The majority of the courts have not reached the question of whether the Pennsylvania constitution protects the fundamental rights of abortion, but Judge Christine Donohue said it was, “The court observed that it was ‘unconstrained’. dobbs The court believed that abortion was about determining whether it was “deeply rooted” in the federal “history or tradition.” “Agreeing, Judge David Wecht stressed the court’s obligation to question the context of historical laws regulating abortion.
Similarly, in exploring its distinctive political, legal and constitutional history, the Kansas Supreme Court determined that state constitutional principles should protect abortion rights rather than entrench discrimination in the past. In two decisions Hodes & Nouserv. Kobach – One before and one dobbs – The court initially temporarily banned the ban on abortion procedures, and later found that the ban violated the fundamental right to individuals’ autonomy under the state constitution. The court reasoned that the existence of a statute that criminalizes abortion when the state constitution was adopted was inconclusive. The reality is that they came from sexually different rights and laws, but were hardly challenged at the time, but are now understood to be discriminatory. The court explained that “we will look to natural rights and apply them equally to protect all individuals, rather than relying on historical bias in the analysis.”
With at least 16 reproductive rights cases still in operation in state courts, we can hope that more state high courts should consider how history should inform judicial interpretations of constitutional rights. The Wisconsin Supreme Court will quickly determine whether the 175-year-old state law prohibits abortion and, if it is not implicitly repealed, whether the law violates the state’s constitutional right to protection of liberty and equality. In an ongoing case in Wyoming, in which a court’s court bans abortion ban on a state constitutional right to make medical decisions, the plaintiff filed a brief with the Wyoming Supreme Court, alleging that the history and tradition of freedom, equality and natural rights upheld the allegations that such a prohibition violates constitutional treaties in multiple states.
Three years later dobbsstate court reproductive rights lawsuits reveal the role of history, and tradition is far from being resolved. As law professor Leval Siegel argued, constitutional history does not need to be a “means to justify oppression” but “enable criticism and resistance.” The state courts show why doing so is essential to restoring the constitutional tradition of protecting body autonomy, freedom, equality, and reproductive decisions and health rights.
Diana Kasdan is the Law and Policy Director for UCLA Law’s Center for Reproductive Health, Law, and Policy.
Amanda Barrow is a senior staff attorney at UCLA Law’s Center for Reproductive Health, Law, and Policy.
Suggested Quotes: Diana Kasdan and Amanda Barrow, The role of history and tradition in state court abortion casessᴛᴛᴇcᴏᴜʀᴛrᴇᴘᴏʀᴛ (May 28, 2025), https://statecourtreport.org/our-work/analysis-opinion/role-history-and-tradition-court-abort case