Abortion under State Constitutions: A State-by-State Analysis

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ABORTION UNDER STATE CONSTITUTIONS: A STATE-BY-STATE ANALYSIS Second Edition by Paul Benjamin Linton (Carolina Academic Press, 703 pp., 2012, $85. 00)

America's abortion regime is largely the work of the federal judiciary. In 1973, the Supreme Court discovered a right to kill unborn children, a right that could be seen to be "founded," Justice Harry Blackman wrote for the majority in Roe v. Wade, either "in the Fourteenth Amendment's conception of personal liberty," or "in the Ninth Amendment's reservation of rights to the people." This abortion right, the Court determined, was derived from a Constitutional "right to privacy," a right the Supremes had discovered eight years earlier in Griswold v. Connecticut, a case concerning whether states could ban contraceptive use among married couples. No, they could not, the Court found, as that would be a violation of the "right to marital privacy." Despite its vague origins, the privacy right has provided amazingly broad and specific guidance to the federal courts, allowing them to ponder questions such as how far a child must emerge from his mother to be deemed born (and thus Constitutionally protected). Indeed, the right to abortion has been even asserted to entail-in the words of Justice Anthony Kennedy in Planned Parenthood v. Casey, the 1992 case upholding Roe v. Wade-a right to one's "own concept of existence, of meaning, of the universe, and of the mystery of human life."

While the federal courts have affixed the right to abortion to the U.S. Constitution, one must also remember that each state also has its own constitution, with rights analogous to their federal counterparts. The track record of state courts finding a right to abortion in state constitutions is mixed. A few (e.g., New Jersey) have gone where no federal court has gone before (or since), expanding the protection of abortion even beyond what the federal judiciary has required (especially in the area of states paying for abortions for indigent women under Medicaid). Some states have avoided creating state "rights to abortion." Given the proclivity of abortionists to protect their trade and litigate their opposition to state laws protecting the unborn in federal courts, most state supreme courts have simply not addressed the issue.

For those interested in seeing how abortion has played out in state courts, this book is a must. Paul Linton, Special Counsel for the Thomas More Society and former general counsel for Americans United for Life, offers a state-by-state analysis that is measured, balanced, and careful.

Linton notes that state constitutions typically have a bill of rights comparable to their federal counterpart. The question is: How do we interpret them? The author maintains that there are two "principled" approaches to such exegesis: "lockstep"-state constitutional rights provisions should be interpreted in "lockstep" with their federal counterpart-and "independent state constitutionalism"-state constitutional rights are independent of their federal counterpart, and can be construed more broadly, narrowly, or exactly. What Linton calls "not principled" is a blending of these two criteria: Federal interpretation establishes the "floor" for understanding what a state provision means, but not a "ceiling"-state courts can go beyond what their federal counterparts have decreed. While advocates of originalism and strict constructionism often focus their attention on the federal courts (especially when it comes to evaluating judicial nominees for the likelihood of their becoming legislators from the bench), it might be a fascinating study to see how state constitutionalism philosophies have been used to win at the state level what was lost at the federal. Such a study, of course, would transcend the abortion issue, likely also encompassing other neuralgic issues like euthanasia, same-sex "marriage" and expansive homosexual rights, search and seizure, criminal defendant "rights," etc.

According to Linton, more than 35 state supreme courts have not weighed in on abortion. …