How State Constitutions and Courts Can Lead on Reproductive Rights and Gender Equality

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How State Constitutions and Courts Can Lead on Reproductive Rights and Gender Equality
6/15/2023 by Diana Kasdan and Alexander Wilson
A new Center for Reproductive Rights resource details sex discrimination claims under state constitutions.



Protesters attend the pro-choice demonstration at the Massachusetts State House in Boston on June 25, 2022, where hundreds gathered to protest the Supreme Court’s decision to overturn the landmark Roe v. Wade case, ending a guarantee on a fundamental right to abortion. (Craig F. Walker / The Boston Globe via Getty Images)

This story was originally published on The Brennan Center for Justice.

One year ago this month, the U.S. Supreme Court abandoned 50 years of precedent and held there is no federal constitutional right to abortion. In the case, Dobbs v. Jackson Women’s Health, the Court’s majority also attempted to foreclose other constitutional protections for abortion by asserting that state criminalization of pregnancy care is not a form of sex discrimination or a threat to gender equality. This blinkered view of how abortion bans impact women’s equal citizenship was vigorously contested by the Dobbs dissenting justices, constitutional scholars and the public.

Fortunately, the Dobbs majority opinion is not the last word on how other jurists will interpret constitutional guarantees that protect reproductive autonomy. With active cases in 19 states challenging abortion bans since Dobbs, debates over the constitutional meaning of life, liberty, equality and reproductive rights are now taking shape in state courts. At least seven of the pending post-Dobbs cases challenging abortion restrictions expressly raise claims grounded in state constitutional protections against sex discrimination. As these and many other cases on pressing issues make their way through state courts, it is a critical moment for the development of independent, modern state constitutional jurisprudence, including on sex discrimination and gender equality.

Of course, in most states, those decisions won’t be written on a blank slate. The Center for Reproductive Rights’ new resource, State Constitutions and Sex Discrimination, details the landscape of state constitutional standards for deciding sex discrimination claims. It allows readers to survey jurisprudence across each of the 50 states and search individual states to explore relevant precedent and constitutional provisions. In our research, we found that 31 of the 50 state high courts have, at some point, considered the scope of their state constitutions’ protections against sex discrimination, with nearly half of those states (14) establishing a more stringent legal standard than federal precedent. In cases challenging stereotypes about women and their place in society—from economic reliance on their husbands to gender-based parenting and unique public health care rules for pregnancy—many, though not all, state high courts have rejected those stereotypes as a legitimate basis for discriminatory policies.
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As more people turn to state courts to vindicate fundamental rights and block discriminatory state action, the Center for Reproductive Rights will continue tracking and analyzing those decisions—and looking to state courts to lead the way in building a modern gender equality jurisprudence.

https://msmagazine.com/2023/06/15/gender-equality-state-courts-constitutions/