State Court Protection of Reproductive Rights: The Past, the Perils, and the Promise

In the United States constitutional system, the protection of individual rights depends upon the federal and state judiciaries. The role of the federal courts in protecting reproductive rights provides a particularly well known, if controversial, example. Roe v. Wade is among the most widely recognized of all judicial decisions.' The U.S. Senate, for example, routinely questions Supreme Court nominees about their views on Roe, as well as Roe's principal precedent, Griswold v. Connecticut. Although the Supreme Court's invalidation in Roe of Texas's criminal abortion ban continues to be debated, Griswold's invalidation of a Connecticut law that made it illegal for even married couples to use contraception stands as a pillar of modern constitutionalism. The courts of the fifty states also possess broad authority to safeguard or diminish reproductive autonomy and, as a consequence, the status of health care, reproductive justice, and the well-being of women, children, and families in their jurisdictions. State courts interpret the meaning of state laws-constitutional provisions paramount among them that may provide greater protection for individual rights than the federal Constitution. The movement for marriage equality provides a powerful and related example: the first states to allow couples of the same sex to marry did so only after a state court interpreted a state constitutional guarantee to require what increasingly is recognized as a matter of right. Americans regularly have battled governmental intrusions on their reproductive rights in state as well as federal courts, dating back to when not only abortion and contraception were illegal, but so, too, was the distribution of information about how to prevent unintended pregnancy.' Now, more than forty years after Roe and fifty years after Griswold, state courts are as important as at any time since those landmark decisions. Overlapping factors converge to create special urgency for attention to state courts. A brief review of five such factors helps situate this Essay's analysis of the contemporary relevance of state courts to the fight for reproductive justice.