The Supreme Court wants state lawmakers to decide abortion. So far, it’s been courts and voters

A yard in Merriam, Kansas, urges voters to oppose a proposed amendment to the Kansas Constitution to allow legislators to further restrict or ban abortion. Kansas voters rejected a ballot question that could have eroded abortion rights.

A yard in Merriam, Kansas, urges voters to oppose a proposed amendment to the Kansas Constitution to allow legislators to further restrict or ban abortion. Kansas voters rejected a ballot question that could have eroded abortion rights.

John Hanna, STF / Associated Press

“It is time,” Justice Samuel Alito, joined by a majority of the Supreme Court, announced in June, “to heed the Constitution and return the issue of abortion to the people’s elected representatives.”

Well, maybe not yet.

Two years after South Carolina’s elected representatives voted to ban all abortions after embryonic cardiac activity, about six weeks into a pregnancy, the state Supreme Court — whose members had all been approved by a Republican-majority Legislature — ruled 3-2 on Jan. 5 that the ban violated the right to privacy, added to the state Constitution by the voters in 1971. It was at least the fifth state court to block a law prohibiting or restricting abortions since the nation’s high court, in Dobbs v. Jackson’s Women’s Health Organization, overturned the 1973 Roe v. Wade decision that declared a constitutional right for a woman to terminate her pregnancy.

Later the same day, the Idaho Supreme Court, with four Republican appointees, voted 3-2 to uphold a state law banning nearly all abortions. Idaho’s Constitution does not expressly protect privacy — unlike the constitutions of 11 states, including California — but the dissenting justices said state constitutional guarantees of liberty and the due process of law should be interpreted to provide a right to abortion.

In Wyoming, a state judge has blocked a law that would have prohibited most abortions, saying it appears to violate an amendment to the state Constitution granting everyone “the right to choose and provide for their own health care.” The amendment had been approved by more than 72% of the state’s voters in 2012 — sponsored not by advocates of abortion rights, but by opponents of the Affordable Care Act, the federal health insurance law that the Supreme Court had just upheld.

State courts in Arizona, Ohio and Utah have also prevented enforcement of anti-abortion laws, saying they conflicted with other state laws or constitutional provisions.

The Kansas Supreme Court ruled in 2019 that abortion rights were protected in the state Constitution, and a ballot measure to overturn that ruling was rejected last August by 59% of the voters in the majority-Republican state. Florida’s Supreme Court ruled in 1989 that the state Constitution’s right to privacy protected abortion, but the current court has allowed the state to enforce a ban on the procedure after 15 weeks of pregnancy.

Iowa’s Supreme Court made a more dramatic about-face last June, overturning its 2018 ruling on abortion rights a week before the U.S. Supreme Court’s ruling. A ban on abortion in Indiana has been blocked by a judge on the grounds that it would violate religious freedom, but the state Supreme Court is scheduled to consider an appeal on Friday.

But Supreme Courts in other states have found abortion rights to be protected by more general guarantees such as privacy, liberty, equality and the right to choose one’s health care. The first was a 1981 ruling by the California Supreme Court that the state’s constitutional right to privacy, approved by the voters in 1972, also applied to abortion. Courts in Minnesota, Alaska, Montana and New Jersey issued similar rulings over the next 20 years. After the U.S. Supreme Court’s ruling overturning Roe, voters in California, Michigan and Vermont approved explicit state constitutional rights to abortion.

So what happens when a state’s high court, whose members may not have been chosen directly by the people, decides the right to abortion is protected by a longstanding provision of the state constitution?

The answer is “state initiatives to amend the constitution,” said Mat Staver, founder of Liberty Counsel, a nonprofit religious organization that opposes abortion. He predicted that voters in South Carolina would soon overturn their court’s decision, and others would follow.

“The people for nearly 50 years were tied and weren’t able to do very much” because of Roe v. Wade, Staver said. “Now, front and center, it’s going to be a state issue.”

But the results may sometimes be surprising, said Mary Ziegler, a law professor at UC Davis. Besides last year’s vote in Kansas, she noted, voters in Montana and Kentucky also rejected proposals to outlaw abortion last year, an issue they apparently viewed as more personal than political.

“You get a sense from ballot initiatives that people in conservative states may never vote for a Democrat,” Ziegler said, “but if you just take the abortion issue or reproductive rights in isolation, you may get a different answer.”

Not always, cautioned Elizabeth Nash, state policy analyst for the Guttmacher Institute, a nonprofit that supports access to abortion.

“In very conservative states, if you put it to a vote, it will take education and a campaign to stop those measures,” Nash said. “This is a long road.”

In contrast to last year’s state votes, she observed, voters in Tennessee approved a ballot measure in 2014 that eliminated abortion rights in the state Constitution, rights the Tennessee Supreme Court had ruled in 2000 were protected by the document’s guarantee of personal privacy. That allowed state lawmakers to ban all abortions after the U.S. Supreme Court repealed Roe v. Wade.

Still, Nash said, “I anticipate as people grapple with the impact of abortion bans... we will continue to see increased support for abortion rights even in conservative states.”

Meanwhile, the newly elected Republican majority in the U.S. House of Representatives passed its first anti-abortion legislation Wednesday, a resolution denouncing violence against clinics and churches that oppose abortion and a bill that would require health providers to care for newborns who survive a failed abortion.

One consequence of the Supreme Court’s ruling, said Martha Davis, a law professor at Northeastern University in Boston, is that the right to abortion will no longer be determined by one national Constitution but by varying interpretations of 50 state constitutions. Those are far easier to change than the U.S. Constitution, she said, noting that some, like California’s, have been amended hundreds of times. Every state requires voter approval to amend its constitution except Delaware, where it can be done by state legislators.

“I would not discount the role of the people,” Davis said by email. But as long there is no minimum federal standard, she said, “the nation will end up with a patchwork of laws that will chill some physicians from providing care and frustrate people who seek care in states where abortion is substantially banned or the laws are in flux.” She contrasted it with the situation in nations like Canada, Britain and the Netherlands, “where abortion is viewed as a politically neutral, fundamental health care issue, not up for grabs in the legislature or the courts.”

Bob Egelko is a San Francisco Chronicle staff writer. Email: Twitter: @BobEgelko