Abortion Restrictions May be Unconstitutional in These Red and Blue States, Where Courts have Ruled That Privacy is a Fundamental Right.

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For decades, anti-abortion legislators in Florida have had little luck curbing abortion access because of a right-to-privacy provision in the state constitution that the state’s highest court – and voters – have decided preserves the right to the medical procedure.

That statement is at the heart of a new lawsuit aiming to prevent the state from prohibiting abortion beyond 15 weeks, now that the Supreme Court has given red and blue states the green light to regulate the issue locally by reversing Roe v. Wade. This famous 1973 ruling allowed abortion globally.

In lawsuits against counties that have moved quickly to outlaw the operation completely or early in pregnancy, lawyers for abortion clinics are relying on similar arguments that state constitutions provide a right to privacy and that the right to abortion is part of that.

“[Privacy rights are] deeply ingrained because the ability to make decisions about your body and your life is essential to orderly government, which is what a constitution is,” said Amy Myrick, a senior staff attorney on judicial strategy at the Center for Reproductive Rights.

As of Tuesday, the center, the ACLU, and Planned Parenthood have launched legal challenges in 11 states to stop the implementation of restrictions in a post-Roe world. Of those challenges, at least six, including in Mississippi, Kentucky, and Idaho, contain claims that the prohibitions implemented or anticipated to take effect to violate people’s right to privacy, whether that right is expressed or inferred by the courts. So far, judges have temporarily halted restrictions in Louisiana, Kentucky, and Utah, enabling clinics in those states to continue offering abortion services – for now. Trial courts also temporarily halted Texas and Florida from implementing their restrictions on abortion, but those judgments have since been postponed on appeal.

As in Roe, where the Supreme Court decided that while the right to privacy is not specified in the US Constitution, it is implied and guarantees the right to abortion, courts in several red and blue states have construed their constitutions as preserving the right to privacy, experts told BuzzFeed News. And that protection is often far more significant at the state than at the federal level.

“The federal constitution is a floor but it’s not a ceiling, and state constitutions may and frequently do offer more protection for their citizens,” said Alexa Kolbi-Molinas, deputy director of the ACLU Reproductive Freedom Project.

For instance, the Mississippi Supreme Court upheld a previous decision from 1998 that held that “the state constitutional right to privacy includes an implied right to choose whether or not to have an abortion” and that “no aspects of life are more personal and private than those dealing with one’s sexual organs and reproductive system.” According to Hillary Schneller, senior staff attorney at the Center for Reproductive Rights, who is representing the Jackson Women’s Health Organization in a lawsuit contesting the state’s so-called trigger law, which outlaws nearly all abortions, as well as a law forbidding the procedure at six weeks of pregnancy, this decision “very clearly confirms that the Mississippi Constitution independently protects the right to abortion.”

Neither prohibition has yet been implemented, enabling Jackson Women’s Health, the state’s sole surviving abortion facility and the provider at the core of the lawsuit that led to Roe’s collapse, to continue providing services before 15 weeks of pregnancy.

Our goal in this circumstance is to buy every hour, every day, so they can keep doing it,” Schneller said. “Every day the clinic is permitted to stay open and provide abortion services to protect Mississippians’ health and lives, and we want to be able to assure that for as long as possible.

The concept to entrench privacy rights gathered speed in the 1970s — about the time that Roe was decided — owing to a number of worries about breaches of people’s privacy, including digital privacy problems.

“This was a period in which both there was kind of early digitalization and misuse of digitization,” said Mary Ziegler, a professor of law at the University of California, Davis, and a specialist on the legal history of reproductive rights.

In Montana and Alaska, which explored privacy rights during constitutional conventions, some delegates regarded abortion as being part of a comprehensive right to privacy that embraced both private decision-making and privacy surrounding data and technology, Myrick said. But in other places like Florida, which approved a constitutional amendment protecting the right to privacy in 1980, it wasn’t obvious if the provisions were aimed to safeguard abortion.

The discussion in 1980 didn’t really deal with abortion a lot,” Ziegler added, referring to the Florida amendment. “It also wasn’t plainly about abortion.

Because of Roe, voters potentially would have understood at the time that abortion was connected with a right to privacy as the state Supreme Court acknowledged in earlier judgments on the matter. And in 2012, Florida voters rejected a ballot initiative that attempted to remove abortion from the state’s constitutional right to privacy.

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Still, Gov. Ron DeSantis has continued to claim that Florida’s right to privacy does not protect abortion. After a circuit court judge announced last week that he would issue an injunction halting the state’s 15-week prohibition, DeSantis promised to urge the Florida Supreme Court to reverse its precedent. “The battle for life is not over,” his office added.

In addition to Montana, Alaska, and Florida, courts in California, Massachusetts, Minnesota, and New Jersey have construed their state constitutional right to privacy as ensuring access to abortion, according to the Center for Reproductive Rights. Several other red and blue states, like Arizona, South Carolina, and Louisiana, have specific rights to privacy in their constitutions but their highest courts have not yet decided on whether it encompasses abortion, Myrick said.

In court challenges launched in the aftermath of Roe’s demise, lawyers representing abortion clinics are also relying on equal protection and inherent rights sections to claim that the abortion prohibitions violate state constitutions. Other challenges are centered on arguments that red and blue states’ abortion laws are so ambiguous that it’s unclear what activity they ban, what exceptions are permitted, and what penalties would be in place.


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