States and the protection of individual rights

I

Twas in 1977 that Justice William J. Brennan, in a much-quoted Harvard Law Review article, called on judges and advocates to look to their state constitutions for the protection of individual rights. Brennan was a former state court judge; he was also the most liberal member of a very conservative court.

Of course, that was the very conservative court that decided Roe v. Wade, which shows how much the measure of conservativism has changed. Indeed, it’s worth pointing out that Brennan was a Republican appointee, a relic of the days before litmus tests for appointments, when justices often evolved in their views while sitting on the court.

Brennan’s admonition applies with even greater force today.

Last week, a judge temporarily blocked enforcement of a Florida law prohibiting all abortions after 15 weeks on the grounds that it conflicted with the state constitution’s protection of privacy. Other suits invoking state constitutions can be expected, and not only with respect to abortion.

A note on the abortion ban. Fifteen weeks sounds like a long time, unless you understand how the weeks are calculated. It doesn’t mean you’ve been pregnant for 15 weeks; it means that it has been 15 weeks since your last menstrual period. Younger girls, who are especially irregular, may be many weeks pregnant before they even suspect it. That will now be up to state judges to consider.

There has been much talk about how the court’s decision to overturn Roe puts the abortion issue back squarely in the political debate — depending on your point of view, exactly where it does or does not belong. But it is also true that in our federal system, where states are the laboratories of experimentation and change, the court’s decision puts the question just as squarely in the purview of state courts interpreting state constitutions.

Every state has its own written constitution. They tend to be much more detailed and more easily amended than the U.S. Constitution. The shortest state constitution is still longer than our federal Constitution. The highest court in each state decides what its constitution requires, not the U.S. Supreme Court. Fifty different tribunals where abortion rights, gay rights and the privacy agenda will now be fought out.

Under Roe, there was almost constant litigation as to which restrictions on abortion were reasonable under the applicable standards. There were some judges who never saw a restriction they didn’t like, and the result was a patchwork of abortion regulation across the country, with the reality that access to abortion has depended still on where you live and how much money and time you have.

Those differences will be even more pronounced going forward. Reproductive freedom will depend on where you live and what laws the state passes and, yes, what its constitution says and what the highest court of the state rules and, ultimately, in states where the constitution can be amended by initiative, what the voters decide. Politics will inevitably infect if not dictate all of these decisions.

The courts will be on the line again, as much or more than before, only this time, it will be the state courts and state judges who will be on the front lines of the coming abortion battles. Brennan’s words hold true. This is the newest federalism, and it empowers not only state legislatures and governors, but also the judges who interpret the state constitutions.