The future of red state abortion rights might be through their Supreme Courts

North Dakota is the latest example.

A scene from an abortion rights demonstration in New York earlier this month. (Kena Betancur/AFP via Getty)

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There’s a glimmer of hope about abortion rights from an unlikely place: North Dakota. There, the state supreme court has found that North Dakota’s state constitution, in certain circumstances, supports the right to abortion. It’s another example of how pursuing abortion rights in state courts is possibly a more successful path than the federal ones. 

The case, Wrigley v. Romanick, is a bit messy procedurally and warrants some explanation. In 2007 North Dakota passed a “trigger ban” designed to immediately ban abortion as soon as the US Supreme Court overturned Roe v. Wade. When that happened last year in the Dobbs v. Jackson case, the North Dakota ban automatically went into effect. It has exceptions only for rape, incest, and to preserve the pregnant person's life. There is no exception for protecting the pregnant person's health. 

Clinics in the state sued to stop the state from enforcing the law. A lower court granted the injunction, but the state asked the state Supreme Court to vacate that. Earlier this month the state’s highest court ruled to keep the ban on hold.

Abortion care as part of the right to health

The clinics argued the North Dakota state constitution — not the federal one— provided a fundamental right to abortion. Their argument rests on two parts of the state constitution. First, North Dakotans have the inalienable right of “enjoying and defending life and liberty” and cannot be deprived of “life, liberty or property without due process of law.” Because the North Dakota trigger ban doesn’t have an exception for the health of the pregnant person, the clinics argue that it violates the fundamental right to obtain an abortion when necessary to ensure health. Put another way, one cannot defend life or obtain safety if forced to endure a pregnancy that could seriously damage one’s health or cause death. Enjoyment of life is also presumably seriously curtailed if someone is forced to carry a pregnancy to term and that leads to significant and ongoing negative health effects. 

That’s exactly what is happening in states forcing people to carry dangerous pregnancies to term. In a high-risk pregnancy in Tennessee, doctors knew at the 10-week mark if the patient continued the pregnancy, she could lose her bladder, uterus, and possibly her life. But the doctors could do nothing given the state’s ban. At the seven-month mark, the woman woke up bleeding so severely her socks were soaked with blood. Only then could doctors perform a c-section, but they also needed to remove her uterus.

In Texas, five women who were prevented by state law from getting abortion despite non-viable pregnancies have sued the state. One woman learned in her 17th week her cervical membranes had begun to prolapse and the fetus would not survive. She still had to wait until she spiked a 103.2-degree fever and developed a severe blood infection before getting an abortion. At that late stage, the procedure was so risky she required a blood transfusion to stabilize her, and she developed scar tissue on her uterus and fallopian tubes. 

In both these situations, the women survived, but their health is severely compromised — and will be for the rest of their lives — because they had to wait until they were in acute danger of dying from their pregnancies. 

The conservative government in North Dakota sees no problem with this. In Wrigley, the state argued the US Supreme Court’s decision in Dobbs overturned the right to abortion partly because abortion doesn’t have “longstanding roots in American culture.” The North Dakota Supreme Court, however, pointed out that even when North Dakota was still a territory prior to 1869, abortion to save the pregnant person's life was permitted. Relying on that, the state supreme court sided with the clinics at this stage of the litigation and upheld the injunction blocking the law from taking effect.

This is just a first step, as it blocks the law only while the case proceeds back at the lower court. There is no date set as to when that lower court process would begin, but it will likely take months to resolve. That said, it is still a win in a deep-red state to see its highest court acknowledge that enjoying and defending life and liberty includes protection from pregnancies that could seriously compromise health.

Oklahoma’s state Supreme Court, also not a hotbed of liberalism, just came to a similar result. Oklahoma’s abortion ban is similar to North Dakota’s, allowing abortions only if the pregnant person's life is at stake. Reproductive health groups asked the court to find that the state constitution protected abortion, period. Unsurprisingly, the court wouldn’t go that far. But it did hold that someone has an inherent right to an abortion if their physician determines continuing the pregnancy would endanger their life “due to the pregnancy itself or due to a medical condition that the woman is either currently suffering from or likely to suffer from during the pregnancy.” In practical terms, this means a pregnant person does not have to wait until they are in life-threatening danger, but instead can get an abortion if their doctor determines health consequences could result from an existing medical condition or one that might develop. This framing gives doctors much more discretion in helping patients. 

These cases are not ideal in that they still allow for near-total bans. But other states have used their state constitutions to find a more robust set of protections for abortion.

A brief history of state courts ruling in favor of abortion rights

Over 40 years ago, Massachusetts’s highest court held that the state’s Declaration of Rights — akin to a state constitution — provided more protection for abortion than the federal one. Nearly 30 years ago, the Minnesota Supreme Court found that abortion was constitutional under a combination of multiple provisions in the state constitution. In 2019, the Kansas Supreme Court held the state constitution’s guarantee of a natural right to personal autonomy encompasses the right to control one’s body and have bodily integrity, including getting an abortion. Earlier this year, the South Carolina Supreme Court permanently blocked that state’s six-week ban, saying since the state constitution contains an express right to privacy (unlike the federal one) banning abortion was unconstitutional. 

And just last week, a Wyoming district court judge blocked that state’s abortion ban. Why? Because in 2012, the state’s voters passed a constitutional amendment stating that citizens have the right to make their own health care decisions and the state “shall act to preserve these rights from undue governmental infringement.” This amendment was passed so that Wyoming citizens didn’t have to enroll in the Affordable Care Act, but now its existence is tripping up anti-choice forces in the state.

Only blue or purple states will likely see state courts use state constitutions to fully guarantee abortion access. However, looking at North Dakota and Oklahoma, there may be a path forward in more conservative states, wedded to things like “stand your ground” laws. Florida’s version of that law, for example, says deadly force is permissible when someone believes using such force “is necessary to prevent imminent death or great bodily harm” to themselves or others. Given that pregnancy is more dangerous than abortion, that pregnancy-related mortality is much, much higher for Black and Native people, and that states with the most restrictive anti-choice laws also provide some of the fewest supports for pregnant people, red state residents may be able to make the argument that their own safety is in danger during risky or complicated pregnancies. It’s somewhat of a slender reed, but post-Dobbs, it is likely the best we have.

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That’s all for this week

Aaron is on a brief vacation but will be back Monday. Have a great weekend.

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