Abortion Rights in State Constitutions: A Case of Constitutional Pluralism

• In Event: Women's Lives and Constitutional Rights

Abstract

In this paper, I will examine the role that state constitutions can play in protecting individuals' right to abortion in an era where the Roe v Wade decision is at risk. Through a detailed examination of the abortion right case, I seek to further clarify the role of state constitutions as sites for constitutional pluralism within the American federal system. The paper will proceed in the following way. First, I will examine the history of state constitutional protections for individual rights with a focus on state constitutional protections for abortion rights. Then, I will examine the ways in which abortion rights activists have sought to work within state constitutions to protect abortion rights in case federal abortion protections under Roe v. Wade are overturned. Finally, I will connect the abortion rights controversy to a broader view of state constitutions as a site for an American form of constitutional pluralism. This paper seeks to contribute to the literature around abortion rights and to the literature around constitutional pluralism in two important ways. First, it seeks to offer a way of state level protections for abortion rights can supplement federal protections in ways that expand the discourse around abortion rights away from the realm of individual privacy and toward the realm of bodily autonomy. It also makes the case that state constitutions offer a backstop to ensure protection for abortion rights if federal protections currently guaranteed by court decisions should be overturned. Additionally, this paper seeks to expand the discussion of state constitutions as a site for an American form of constitutional pluralism. In doing so, the paper will make the case for relying on state constitutions for protections of rights rather than exclusive reliance on incorporated federal rights. These will in turn allow us to see the full scope of possibilities for state constitutions.

Author

• Rebecca Anderson, University of Wisconsin, Madison