When it comes to reproductive rights, the news coming out of the federal courts is almost always bad: They’re populated with conservative appointees, and even if litigants fare well in the lower courts, they still end up facing an anti-abortion onslaught from the U.S. Supreme Court. But state courts, even in Republican-leaning states, can be a silver lining.
Last Wednesday, Planned Parenthood v. MontanaMontana Supreme Court Throw it away The Montana Constitution requires minors to obtain parental consent to have an abortion, and the court reached this decision in part because it contains two provisions that are not in the federal Constitution. Give one Give people under the age of 18 all the fundamental rights provided by the state constitution; Another description The right to individual privacy is “essential to the thriving of a free society” and may not be infringed without a compelling national interest.
Federal privacy guarantees are more complicated because the federal Constitution does not explicitly provide for a right to privacy. Griswold v. ConnecticutThe Supreme Court has held that the right to privacy, and specifically the right to use contraception, can be inferred from a combined consideration of the protections of the First, Third, Fourth, Fifth, and Ninth Amendments. The lack of a clear constitutional guarantee is one reason the right to abortion has been weak in federal courts.
In Montana, the state offered several attractive state benefits, none of which were realized. First, Claimed Parental consent laws were necessary to protect minors from sexual harm. The court rejected this, noting that the laws only prevented minors from getting abortions for pregnancies that had already occurred, and did nothing to prevent potential harm that could result from the pregnancy. Second, Montana said that the laws were necessary to allow parents to monitor their children for post-abortion complications and psychological trauma. The court also rejected this, stating that abortion is extremely safe and there is no evidence that abortion increases mental health problems. Finally, the state said that parental consent laws protect minors from their own immaturity. The court agreed that it was generally a compelling interest, but the state allowed those same minors to make other decisions related to the pregnancy, such as continuing the pregnancy or placing the child for adoption.
Montana Legislature Although Montana has seen Republicans win several elections, a Democrat held the governor’s office for 16 years from 2005 to 2021. Constitution Judges must be elected, but the governor is allowed to appoint judges when vacancies occur. Appointed judges must run for election when their term ends. Current Members Despite the mix of Republican and Democratic appointees and elected justices, the decision to repeal parental consent laws was unanimous.
Here, the courts are functioning as they should. The Montana Supreme Court does not endorse the will of a conservative legislature or governor, and a spokesman for the Montana Attorney General’s Office said the justices “are not appointing judges or other legal advisers.”NaiveThat’s because 70% of state residents supported parental consent legislation in 2012. But it is not the court’s job to codify the will of the people into law. It is the court’s job to act as a meaningful check and balance on the actions of elected bodies.
Utah Republicans are similarly confused about the principle. Earlier this month, the Utah Supreme Court Refused Lifting lower court injunctions blocking state near-total abortion bans. This is not a substantive ruling on the case. Rather, it says the bans: Current Abortion Laws Abortion is legal in Utah up to 18 weeks, but it cannot be forced upon Utahns until a constitutional challenge has been fully resolved. The state Supreme Court issued an injunction blocking the move. attentionThe 2016 federal abortion ban would uphold the abortion status quo that has existed in the state for nearly 50 years. Moreover, the Court ruled that Planned Parenthood had raised several significant issues about the constitutionality of the abortion ban.
In Utah, the governor Appoint They send lawyers and non-lawyers to a judicial nominating committee. The committee reviews the applications and selects people to interview. The committee sends the names to the governor, who nominates someone from the list, and a majority of the state senate must approve that person. Judges hold their seats by running in nonpartisan, unopposed elections. Renewal Electiononly their names will appear on the ballot.
The process remains politically charged, as the governor has the power to appoint people to the nominating commission, and Utah does not have a Democratic governor. Since 1985So far, all of the justices currently on the Supreme Court have been nominated by Republicans. However, this system of selecting justices is Ability SelectionThis is probably the best one available. The commission limits who the governor can choose, and if a judge loses a retention election, Create vacanciesthe merit-based nomination process would have to start all over again.
But Utah lawmakers are unhappy with judicial independence on this issue. Complain Regarding the claim that this weakens the constitutional power of the legislature: Of course it doesn’t. As in Montana, this is a case of the judiciary functioning as intended, making independent decisions rather than simply enacting conservative policy.
To be fair, state constitutions and state courts are not magic wands. Georgia’s state courts Long held The state constitution guarantees a right to privacy, but the state Supreme Court has upheld a six-week ban on abortion. take effect The lawsuit continues, but across the state line in Florida Ability Selection and Your privacy rights Although the state constitution provided for this, the state Supreme Court overturned its own precedent and Allowed The 15-week ban is due to come into effect early this year. (The ban was subsequently lifted.) A tougher six-week ban.
But unless comprehensive reform of the federal courts occurs soon, state courts may be the best hope for abortion rights. State Guide In the 2024 state court elections, the balance of power on the Supreme Court could shift to the right in Montana and Michigan, while it could shift to the left in Kentucky and Ohio.
Conservatives won’t try to block abortion bans, so every state court seat matters.
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