Judges from Florida to Kentucky find privacy rights for abortion in state constitutions
The decision by a Florida judge to block the state’s ban on abortions after 15 weeks is the latest salvo in a series of legal battles underway across the country over whether state constitutions give privacy rights that protect women’s access to abortion care.
Already, judges in Louisiana and Utah have taken similar action to temporarily block abortion bans in their states. A judge in Kentucky rendered a similar ruling Thursday. And abortion-rights advocates in Idaho, Arizona, Mississippi and Texas are pursuing parallel legal challenges.
Last week, a majority of Supreme Court justices overturned Roe v. Wade, which found women had a constitutional right to an abortion. Five conservative justices said no such right exists — and left it to the “democratic process” at the state level to determine how to regulate and restrict the procedure.
On the question of abortion, the U.S. Constitution is “neither pro-life nor pro-choice,” Justice Brett Kavanaugh wrote in a concurring opinion in
Dobbs v. Jackson Women’s Health Organization.
The Florida Constitution states “every natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein.” A right to privacy is unenumerated in the U.S. Constitution and remains a source of debate among legal scholars.
“It’s federalism in action,” said Kim Lane Scheppele, a professor of sociology and international affairs at Princeton University and faculty fellow at the University of Pennsylvania Law School. “The
U.S. Supreme Court in Dobbs only said that the U.S. Constitution no longer protects the right of a pregnant person to choose abortion. But the U.S. also has 50 state constitutions, and those constitutions may contain protections that the U.S. Constitution does not.”
Some states that allow for referendums on constitutional amendments are placing abortion-related questions on their election ballots. California lawmakers have decided to codify a state constitutional right to abortion, while Kentucky is going in the opposite direction, proposing a referendum making clear that it protects no such right.