This fall, Maine voters will again decide whether to scrub that exclusion from their state’s constitution, echoing the court ruling. Question 8, one of several constitutional amendments on the state’s Nov. 7 ballot, asks voters if they want to “remove a provision prohibiting a person under guardianship for reasons of mental illness from voting.”  

Maine is already closer to universal suffrage than most states. It’s one of two states, plus Washington D.C., that is approaching universal suffrage. Maine allows people to vote from prison and state law affirms the voting rights of people with intellectual disabilities, autism, and brain injuries. That makes this clause stand out—it treats mentally ill people under guardianship as second-class citizens, which is precisely why the court ruled it unconstitutional. 

“We are creating a subset of mentally ill people under guardians who can’t vote,” Democratic State Senator Craig Hickman, who spearheaded the effort to put the matter to the vote, told Bolts. Hickman, a voting rights advocate, has also been involved in other measures to remove outdated language from Maine’s constitution. “I think it’s important to ratify this amendment. [We need to] make it clear that in this state we have no reason to disenfranchise.” 

“Voting is…a fundamental right,” says Lewis Bossing, an attorney at the Bazelon Center for Mental Health Law, an organization that advocates for adults and children with mental disabilities. “We would like to see a world in which there is no competency standard for voting, because we don’t subject people generally to proving somehow that they can make a choice.”

While it may seem symbolic, the amendment in Maine highlights the patchwork and shifting landscape of voting rights for people under guardianship across the country. And it may have a material impact. The constitutional amendment, if passed, could encourage other states to examine and strike or reform their language—and Bossing notes that the American Bar Association has a recommended standard, starting with due process, for determining when someone under guardianship may lose their voting rights. Some states, such as California, have already adopted versions of this language in their code. 

While the number of people living under guardianships in the United States is unknown because there’s no formal tracking, one study this year guessed at 1.5 million, with guardians supervising some $50 billion in assets. The specifics of these legal arrangements can vary by state and by person, but typically require going to court to petition a judge for a guardianship on the grounds that someone cannot make independent decisions. Considerations for guardianships can include severe mental illness, some developmental or intellectual disabilities, and illnesses related to aging such as Alzheimer’s. 

Many states, including Texas, West Virginia, and Wyoming, have clauses in legislation or their constitutions that explicitly prohibit some people judged “incompetent” from voting, though the specifics can vary by state. Many, like Maine, have conflicting constitutional and legislative positions around voting rights for people under guardianship. Kentucky’s constitution, for example, uses outdated language to describe who shall not have the right to vote (“idiots and insane persons”), though the state’s civil code is actually protective of voting rights for those under guardianship. According to a congressional report published in 2018, nearly 10,000 people across the country lost the right to vote due to “mental incompetence”, which Bossing warns can be an overly broad category.  Though advocates say that the true number is likely much higher because reporting is not reliable. 

Maine barred people under guardianships for mental health conditions from voting until the Disability Rights Center of Maine sued on behalf of three women under guardianships who wanted to vote in the 2000 presidential election. One of them was allowed to vote in that election after successfully petitioning the local judge overseeing her guardianship. Another woman tried but was unable to vote that year after her judge denied the petition to amend her guardianship, citing the prohibition in the state constitution. The third plaintiff was unable to seek a modification to her guardianship ahead of the 2000 election because she had been hospitalized at the time.    

The federal court in Maine ruled in 2001 that it was in fact unconstitutional to deny ballot access for people under guardianships for mental illness, a violation of both the due process and equal protection clauses in the federal 14th Amendment. The state chose not to appeal the decision and legislators struck the relevant sections of the elections code. Today, the voting information page maintained by Maine’s Secretary of State affirms voting rights for people under guardianship, in alignment with the court decision and legislative changes. 

But the outdated voting restrictions have remained in Maine’s constitution since then. Scrubbing the language requires a two-thirds majority in both the state House and Senate to place an amendment on the ballot, followed by a simple majority vote in a referendum. 

“I want to excise anything that is unconstitutional,” Hickman, who led the amendment process in the legislature this year, told Bolts. “We have already removed any disenfranchisement of mentally ill people under the courts and law.” Only a handful of people testified in this year’s legislative hearing over the amendment, including Maine’s secretary of state, who noted that it would finally bring the state’s foundational legal document in line with established case law.

Bossing and other advocates for people under guardianships also argue that people who express a desire to vote should be allowed to vote, and should be provided with any accessibility accommodations they need, such as an electronic voting machine equipped for use by blind voters, plain language material for people with cognitive or intellectual disabilities, or a communication board for a developmentally disabled voter. 

But that help isn’t always available. Despite numerous federal laws protecting the right to vote privately and securely for disabled people, disabled voters report systemic access problems in every election. A 2017 U.S. Government Accountability Office report found that 83 percent of voting places surveyed had one or more accessibility barriers. Disabled voters are also harmed by restrictions on mail and early voting, poor mail ballot design, limits on who can collect and drop off ballots, and calls for hand-marked paper ballots. In a bitter twist, leveraging the Americans with Disabilities Act to close or move polling places has become a voter suppression tactic.

The conversation about voting rights for people under guardianship also connects with a larger discussion about guardianships: Some disability activists and organizations, including Bazelon, question whether they should exist at all, when alternatives that offer more autonomy are available. The supported decision-making movement, for example, presents an option where a disabled person can talk to friends, family, service providers, or others about a decision, weighing those conversations but ultimately making an independent choice. Individual disabled people decide which kinds of decisions they want help with on the basis of their own needs, and they can revisit the topic as their lives change. 

While reformers work on a state-by-state basis, there have been attempts to address the issue federally. The Accessible Voting Act of 2020 filed by U.S. Senator Bob Casey, a Pennsylvania Democrat, would have barred voting restrictions on the basis of guardianships. Under the bill, which failed that session, in order to terminate voting rights, guardians or the state must produce “a court order finding by clear and convincing evidence that the individual cannot communicate, with or without accommodations, a desire to participate in the voting process.”

In Maine, there is currently no coordinated campaign against Question 8 this year, but its proponents are concerned that voters may not understand the context of the ballot measure. “People are confused,” notes Hickman, who hopes clarifying the fact that the amendment is simply cleaning up the constitution to remove language that violates the law will help voters. In the state’s voters’ guide, Disability Rights Maine Executive Director, Kim Moody, explains the story behind the amendment, saying “that outdated provision remains part of the Maine Constitution today and should be removed.”

“People assume folks can’t make their own decisions, people must be making them for them. They think people are going to be taken advantage of,” Hickman says, describing concerns about Question 8. But, like Bossing, he believes in the capacity of disabled voters to make their own decisions, telling Bolts “you can’t disenfranchise based on a feeling.”

The post Maine Referendum Spotlights Voting Rights for People Under Guardianship  appeared first on Bolts.

Ohio Republicans passed a measure in May that creates an Aug. 8 election to end Ohioans’ right to directly amend their state constitution with a simple majority vote.

Voters will decide on that day whether to adopt a proposal that would increase the threshold to change Ohio’s constitution from 50 to 60 percent, and that would make it harder for residents to get constitutional amendments on the ballot in the first place. If it passes, the measure would dramatically curtail a tool of direct democracy that has existed in the state for more than a century.

“It’s an attempt to fool voters into giving away their power,” said Mia Lewis of Common Cause Ohio, a pro-democracy group that opposes the amendment.

Ohio Republicans’ latest effort follows a recent pattern. In numerous states where they have near-total dominance and the only option to challenge them is through statewide referendums or constitutional amendments, Republicans have moved to attack direct democracy itself.

Arkansas Republicans recently passed a law that makes it harder to qualify ballot measures for a popular vote, as did Utah in 2021. Arizona Republicans attempted to do the same last fall, to mixed results. Republican legislators in Florida, Idaho, Missouri, North Dakota and Oklahoma have made similar attempts this year, to varying degrees of success. In the maneuver most reminiscent of Ohio’s, South Dakota Republicans rushed through a summer referendum last year in an attempt to make it harder for a Medicaid expansion plan to pass later that year. Voters rejected their last-minute gambit, then passed Medicaid expansion over their objections last fall.

Now, Republicans are trying the same playbook in Ohio.

The precipitating reason for this amendment is a push to enshrine abortion as a constitutional right. After the U.S. Supreme Court’s 2022 decision that ended the federally-guaranteed right to an abortion, Ohio Republicans passed legislation to ban most abortion in the state, though that law is currently pending legal review. Abortion rights groups responded with a campaign to amend the constitution, attempting to follow in the footsteps of similar initiatives that passed in California, Michigan, and Vermont last fall, and in March they got the greenlight to start collecting signatures for a November referendum.

Anti-abortion groups lobbied GOP lawmakers to support a constitutional amendment to make it harder for any future amendments to pass, and rush to get it in place before voters can weigh in on abortion.

“Their true motivation, aside from their insatiable desire for power, is to stop women from having the reproductive freedom that we so deserve,” Representative Jessica Miranda, Ohio House Democrats’ Minority Whip, told Bolts.

Republicans sought to paint this proposed amendment as a necessary adjustment to protect Ohioans against deep-pocketed out-of-state special interests rather than one focused on blocking abortion rights.

“By voting yes on August 8, Ohioans will be protecting our constitution from special interests for generations to come, while still preserving the people’s important role in governing our state,” Ohio GOP Chairman Alex Triantafilou said in a recent statement. 

“We believe the Ohio constitution is a foundational document and shouldn’t be home to every whimsical issue that comes down the road,” said Rob Nichols, a spokesperson for Republican Secretary of State Frank LaRose. 

But Republicans have occasionally admitted what this push is really about.

“There is a reason that every far left group in Ohio is fighting so hard to preserve their ability to do an end run around us,” state Representative Brian Stewart, the Republican who spearheaded the effort to create the referendum, wrote his GOP colleagues in a December letter obtained by the Cleveland Plain Dealer. “After decades of work to make Ohio a pro-life state, the Left intends to write abortion on demand into Ohio’s Constitution. If they succeed, all the work accomplished by multiple Republican majorities will be undone, and we will return to 19,000+ babies being aborted each year.”

In holding this vote, Ohio Republicans are doing an about-face from a position they held just a few months ago. In December, the GOP-controlled legislature passed a law to eliminate August elections because of the difficulty and additional expense for holding them, as well as the historically low voter turnout during a time of year when many people are on vacation.

LaRose said at the time that August elections “aren’t good for the taxpayer, elections officials, voters or the civic health of our state,” and lamented their historically low turnout. 

But after the GOP failed to move the proposal through the legislature in time to put it on the ballot for the spring primary, LaRose and other Republicans changed their tune.

His spokesperson punted when asked why his boss had reversed his position.

“The general assembly has the authority to establish the time, place and manner for an election. It’s their call, and they chose to do an August election,” Nichols told Bolts. “It’s not our call.”

He also shrugged off concerns from local election workers about the cost and effort of an August election, saying he had faith that local officials were up to the task.

“They’re professionals, they’ve been through this before,” he said. “There have been August elections routinely in the past, and they’ve handled themselves flawlessly.”

The amendment’s opponents have filed a lawsuit in an attempt to block the vote from happening at all, arguing it violates this recently passed law banning most August elections.

In a separate lawsuit, they are seeking a court order to alter the Republican-drafted language for the amendment, which their lawyers described in a court brief as a “misleading, prejudicial ballot title and inaccurate.”

Surveys suggest Republicans are out of step with the voters in the GOP-leaning state—both on abortion and on their wish to curtail direct democracy.

An October poll by Baldwin Wallace University found that 59 percent of Ohioans supported a constitutional amendment to make abortion access a fundamental right—enough support to pass with a simple majority, but just shy of a 60-percent threshold—with just 27 percent opposing it. 

But it doesn’t seem like the GOP’s attempted end-around is any more popular with voters than their attempts to curtail abortion access.

An early May poll conducted by the group leading the efforts against the amendment to change constitutional referendums found that Ohio voters would oppose the measure by a margin of 52 to 21 percent. Strategists in both parties say that other private polling indicates the measure is currently opposed by majorities of Ohioans.

“The overwhelming response to this from people has been outrage,” Democratic Ohio state House Minority Leader Allison Russo told Bolts. “They see this as a power grab from a gerrymandered, unaccountable legislature that wants to take away power from people and put it more firmly into politicians’ hands.” 

The proposed amendment has drawn a broad swath of opposition. Traditional Democratic allies like Planned Parenthood, the Sierra Club, the AFL-CIO and numerous left-leaning labor groups have been joined by the Fraternal Order of Police and the Libertarian Party. The bipartisan Ohio Association of Elections Officials came out in official opposition to it because of the added work and unnecessary cost to taxpayers, which is expected to run as high as $20 million.

The referendum has also drawn opposition from two former GOP state attorneys general, as well as all four of Ohio’s living former governors—including Republicans John Kasich and Bob Taft.

Even some Republicans don’t seem that keen on the August vote. The bill only passed the Ohio legislature after months of foot-dragging from reluctant GOP leaders and heavy pressure from anti-abortion rights groups, in spite of a GOP supermajority in both chambers. Republican Governor Mike DeWine only came out in support after it had already been passed by the legislature after months of debate. And the Ohio Business Roundtable, a conservative-leaning coalition of business groups that usually works closely with Republicans, has decided to stay on the sidelines.

But the new law’s sponsors and their allies in the religious right and business community are now rallying to the cause. 

The Ohio Republican Party recently launched an effort aimed at turning out GOP base voters, and a coalition of pro-GOP business organizations headed by the Ohio Chamber of Commerce recently launched an operation to provide air support. Those groups largely back the amendment because they want to make it easier to defeat a 2024 constitutional amendment to raise the state’s minimum wage.

Given the GOP’s insistence that this is about keeping outside special interests from changing the state constitution, it’s ironic that the biggest individual donor so far to back the amendment is an Illinois billionaire. Dick Uihlein, a GOP megadonor and shipping supplies magnate who has a particular fondness for election deniers and social conservative causes, is the biggest donor behind Save Our Constitution, a super PAC that spent more than $1 million on ads badgering reluctant Republican state lawmakers into passing legislation to create the August vote.

The proposal doesn’t just increase the threshold needed for voters to pass constitutional amendments—it also makes it much harder for groups to get amendments in front of the voters. Currently, organizations and movements need to secure signatures from five percent of registered voters in 44 of the state’s 88 counties to get a constitutional amendment on the ballot. The new rule, if approved, would force groups to get enough signatures in every single county—and eliminate the 10-day cure period that currently exists for groups to fix any errors in signatures to qualify for the ballot.

If passed, the Aug. 8 measure would only apply to future constitutional amendments; it would not change the process that governs the initiatives that change regular statutes. Voters would still be able initiate laws or repeal ones passed by the legislature with a simple majority of the statewide vote. 

But state legislators can immediately re-pass the same or similar laws or repeal voter-backed legislation, giving them an effective veto over popular opinion.

The election is scheduled for the second Tuesday in August, where the proposed amendment will be the only question on the ballot. According to early reports, local election officials are scrambling to secure enough poll workers and polling locations in time. 

August elections are typically very low-turnout affairs, with between 5 and 10 percent of registered voters actually casting ballots. Both sides are gearing up to spend heavily on the race, and expect slightly higher turnout due to the gravity of the issue.

But the amendment’s opponents seem much more confident than its advocates.

“It’s gonna be a tough fight in August, and it’s really going to be about getting out the vote,” said Russo, the House minority leader. “But I feel confident that it will be defeated.” 

The post “An Attempt to Fool Voters”: Ohio GOP Sets Up Vote To Weaken Direct Democracy appeared first on Bolts.

A decade ago, when conservatives were attacking President Barack Obama’s Affordable Care Act as government encroachment in health care, they worked to amend state constitutions around the country to affirm a broad right for people to control their own medical decisions.

“Each competent adult shall have the right to make his or her own health care decisions,” reads section 38(a) of the Wyoming constitution’s Declaration of Rights, under the header “Right of healthcare access.” The provision was placed on Wyoming’s ballot by state lawmakers and approved by voters in 2012; voters saw ballot language that described the measure as preserving this right “from undue governmental infringement.”

Now these anti-ACA provisions—and their broad affirmations of a right to decide—have turned into an unlikely weapon in progressives’ fight against restrictions on abortion. 

Reproductive rights advocates in Wyoming have sued to strike down the state’s abortion ban, saying that this “right to make . . . health care decisions” protects abortion access. A lawsuit in Ohio has made the same case using a similar provision in Ohio’s constitution that was adopted by voters in 2011.

“If you have an amendment that says you have the freedom to choose your health care, then that’s going to apply to all health care: that’s the argument being made,” says David Cohen, a professor of law at Drexel University who studies constitutions and abortion. “It’s like, ‘you used broad words, and these broad words have certain meanings, and we’re just applying those meanings to this context.’”

In both Ohio and Wyoming, these claims have seen early success in courts. 

A trial court in Ohio issued a preliminary injunction against the state’s abortion restrictions in October. The judge found that the Health Care Freedom Amendment “bolsters the Ohio Constitution’s protection of liberty and personal autonomy and reinforces that these protections extend to Ohioans… the right to make decisions about their own bodies—including the fundamental right to make a decision as private and as central to a person’s bodily integrity as the decision to have an abortion.”

Freda Levenson, legal director of the ACLU of Ohio, which supports the lawsuit, says plainly, “The court was required to take this provision at its word: it preserves Ohioans’ freedom to choose their healthcare. And abortion is healthcare.”

In Wyoming, a trial court issued a preliminary injunction on a similar basis, concluding that it “could find that [section 38 of] the Wyoming Constitution affords all Wyoming citizens with a fundamental right to make their own health care decisions and that includes a Wyoming woman’s right to make her own decision regarding abortion.”

And provisions in several other state constitutions could be used for the same purpose.

Since the U.S. Supreme Court overturned Roe vs. Wade in June, legal organizations that are working to defend abortion rights have looked increasingly toward state courts and constitutions. This strategy’s most recent success came in January in South Carolina. Few states have constitutional language that explicitly protects abortion but many state courts have pointed to equal protection, due process, and privacy clauses to affirm a right to abortion under the state constitution, and strike down restrictions or bans on the procedure. 

Plaintiffs are now adding last decade’s anti-ACA provisions to their repertoire. In Wyoming, plaintiffs cited ten different provisions of their state constitution, including section 38 but also Wyoming-specific protections of equality and the state’s equal-protection and due-process analogs. Similarly, in arguing in court that their state’s constitution contains “broad protections for individual liberties,” Ohio plaintiffs cited its equal protection and due process analogs, as well as the health care-freedom provision created in 2012. 

“We see this as a very clear recognition by the voters of Ohio of the fundamental nature of the right to be free from government intrusion in private health care decisions,” Becca Kendis, one of the attorneys of record in the Ohio case and a Reproductive Rights Fellow at the Case Western Reserve School of Law, told Bolts about the state’s 2011 constitutional amendment. 

The ACA’s passage in 2010 was not smooth. Polling during the congressional deliberations over its provisions indicated that it was very unpopular at the time, and the immediate response by Republican attorneys general and legislatures was to undermine its provisions. Throughout the country, conservatives championed constitutional amendments that established individual rights to health care, which built on Republican messaging that the ACA deprived Americans of their ability to choose their own doctors and make medical decisions. Most of these amendments were written narrowly. They referred specifically to an individual “right” to not participate in a specific health care system and not purchase health care or insurance, or to a right of patients to directly pay for health care services and of doctors to accept direct payments.

But the amendments also included expansive language that hinted at something broader. They articulated some sort of right that went beyond not participating in regulated health care markets.

The Alabama, Arizona, Florida, and Oklahoma amendments referred—in materially identical terms—to the “freedom” of their state residents “to provide for their [own] health care,” language that echoes Wyoming’s “right” to “make health care decisions.” 

A measure in Colorado, which failed in 2010, even referred to a “right of health care choice.” 

Reproductive rights proponents today are pointing to the breadth of that language to build their case that these clauses ought to apply to the right to choose an abortion.

For Kendis, the Ohio amendment’s drafters made a political choice to phrase their measure in vague and broad terms in order to maximize support for it.

“You can’t write it to get broad support and claim afterwards that it has this narrow application,” Kendis told Bolts. “If you’re writing something broadly because you’re trying to appeal to the broader public, what you write is what you get.” She added, “There’s a lot of thought process that goes into this to determine how to gain a majority of the vote.”

In both Ohio and Wyoming, appellate courts have declined to step in to block the trial courts’ injunctions, preventing the laws from coming into effect and allowing the lawsuits to continue in the trial courts. 

Whether the Ohio and Wyoming supreme courts end up agreeing remains to be seen, though the new conservative majority in Ohio is likely uninterested in recognizing abortion rights. Still, these arguments have been cleverly framed to appeal to conservative jurists in both states. 

A mainstay of the contemporary conservative legal movement is textualism, or the idea that a text should be interpreted based on its words’ meaning at the time of its adoption, judged by what a so-called ordinary speaker of the language would understand. 

Kendis is framing her case as an easy one for such textualists. In 2011, she says, abortion was a “widely available, legal form of ‘health care’ by any plain meaning or definition of that word for four decades.”

The subjective intent of the amendment’s drafters may have been to push back against the ACA but “they could have very clearly worded this in a way that was targeting the ACA, the individual mandate,” she added. “They could’ve even defined ‘health care,’ so we really have to consider the plain meaning of the word in the text.” But that’s not what voters saw. 

“At the end of the day, when the voters are going to read their ballots and they’re reading the language, they’re deciding whether they agree with the language,” she said. “I don’t see how anyone could argue that the voters, who approved this amendment, . . . were specifically excluding the right to abortion from the type of health care that they approved protection for.” 

In two other states that adopted similar constitutional amendments last decade—Arizona and Oklahoma—abortion-rights activists are challenging the constitutionality of their state’s abortion restrictions. Litigants in neither case have cited their state constitutions’ similar health care freedom amendments—even though both are textually similar to Ohio’s. Alabama has a similar constitutional protection but voters ratified a constitutional amendment in 2018 establishing that “nothing in this constitution secures or protects a right to abortion.”

Whether litigants in Arizona or Oklahoma pursue similar arguments may depend on how the lawsuits play out in Ohio and Wyoming, though each state court system will be shaped by its own politics and members.

Still, the turnaround in these amendments’ use is a reminder of a history of unintended consequences for constitutional provisions that the right has used as well, for instance with the federal equal protections clause and affirmative action cases.

“It opens up a lot of possibilities once you look into what our constitution says, which we had not needed to rely on before Dobbs,” Kendis said.

The post How Attacks Against Obamacare Turned Into Tools to Protect Abortion Access  appeared first on Bolts.

This article was produced as a collaboration between Bolts and NC Policy Watch.

They packed the courtroom early, filling so many seats that a line stretched out the door of the building in downtown Raleigh that houses the North Carolina Supreme Court. In years past, many of the onlookers had been in handcuffs, jails and prison cells. Now, they wanted access to the ballot box. 

Those in line were told the courtroom was full shortly before oral arguments began. The overflow crowd walked down the street to First Baptist Church to watch the hearing streamed live in a basketball gym. Below the projection screen was a sign with a simple demand: “Unlock Our Vote.”

The state supreme court on Thursday held a hearing on whether North Carolinians should have the right to vote while on probation or parole. The case, CSI vs. Moore, is a challenge to North Carolina’s felony disenfranchisement law, which bars people from voting if they are incarcerated and if they are on some form of supervision over a felony conviction. 

Last year, a Superior Court in Wake County issued a landmark ruling in favor of the plaintiffs, effectively restoring the right to vote of 56,000 people in the run-up to the 2022 midterms.

The ruling kicked off a rush among civil rights organizers in North Carolina to tell those “second-chance voters” that they had regained their access to the ballot box, NC Policy Watch and Bolts reported in November. Some of them got to vote in November thanks to the ruling, which made North Carolina one of 24 states where anyone not incarcerated can vote.

But the 2022 midterms upended the political context in North Carolina by flipping the partisan majority of the state supreme court. Republicans picked up two seats, shifting the court to a 5-2 Republican majority and significantly diminishing the odds of major civil rights litigation like this lawsuit. 

The partisan shift loomed large at Thursday’s hearings. The two new Republican associate justices, Trey Allen and Richard Dietz, each signaled their skepticism toward the lower court ruling that expanded rights restoration. 

“The trial court seems to have imposed a remedy that’s beyond the authority of a court because the courts can’t grant the restoration of voting rights to felons,” said Allen. “The Constitution expressly provides that those rights can only be restored in the manner prescribed by law, and the authority to adopt such a law rests with the General Assembly, not with any court.”

“It seems that our constitutional doctrine is pretty clear, that in North Carolina, we don’t try to get into the minds of legislators,” said Dietz, pushing back against the idea that courts should remedy constitutional violations directly. “We declare something unconstitutional and then tell that other branch of government, ‘You need to try again. You enacted a law and it was unconstitutional. Enact one that is not unconstitutional.’”

Their GOP colleagues hinted that they largely shared this attitude. Should they rule to overturn the Superior Court, it could roll back last year’s voting rights expansion.

Kristie Puckett-Williams, an ACLU of North Carolina organizer and a field captain for Unlock Our Vote, said after the hearing that she thought the Republican justices seemed ready to uphold the state’s felony disenfranchisement law and overturn the lower court.

“The central debate is about who has the right to vote,” Puckett-Williams told Bolts and NC Policy Watch. And the justices during the hearing, she said, “foreshadowed that they are okay with us rolling back to a time in our history where poll taxes and literacy tests were common and standard.”

“I left feeling like they had an agenda.” she added.

Chris Shenton, a fellow at the Southern Coalition for Social Justice, a North Carolina-based organization that advocates for civil rights, said he couldn’t be sure what way the ruling would go. “I think the plaintiffs made a compelling argument that what was going on here is the same thing that happens with these statutes all over the country,” he said. “These laws were passed to disenfranchise Black voters in particular.”

It is not clear when the state supreme court will issue its ruling.

The supreme court is set to hear many other cases that touch on racial justice and civil rights this term. Next Wednesday the court will hear oral arguments in four separate cases involving alleged racial discrimination in jury selection, known as Batson violations. And, with the court’s rightward shift, many criminal justice advocates are concerned the high court will revert to its past practice and not find any Batson violations in cases that it hears.

Other voting rights issues could be at stake, too. Earlier this year, Republicans petitioned the supreme court to throw out last year’s opinions on a voter ID law and redistricting—written by the Democratic majority—and grant new hearings. In those cases, the majority had ruled against laws that, even if they appear race-neutral, have “profoundly discriminatory effects.”

The question at the core of Thursday’s hearing was whether North Carolina’s felony disenfranchisement statute should be struck down because it is racist.

The 65-page order, written last year by Superior Court Judges Lisa C. Bell and Keith O. Gregory, described felony disenfranchisement in North Carolina as a means by which white supremacists in North Carolina suppressed Black citizens’ political power, a tool that still disproportionately affects Black voters. The law, Gregory and Bell wrote, “continues to carry over and reflect the same racist goals that drove the original 19th century enactment.”

 In 2020, Black residents made up 22 percent of North Carolina’s voting-age population, but 45 percent of those disenfranchised because they were on parole or probation over a felony, according to a study conducted by The Sentencing Project. 

Pete Patterson, the attorney representing Republican legislators, argued in Thursday’s hearing that the felony disenfranchisement statute was race-neutral. 

The 1840 law that excluded people from the franchise if they had a felony conviction “couldn’t have been motivated by racial discrimination,” he said, since this occurred before Black people were allowed to vote in North Carolina.

The legislature in the 1970s relaxed those restrictions, restoring the voting rights of individuals convicted of felonies so long as they completed their terms of probation or parole, a reform Patterson called a “signature achievement of the Civil Rights Movement.” 

Stanton Jones, an attorney for the plaintiffs, defended the Superior Court’s findings. The statute in question might not explicitly mention race, he said, but it still disproportionately affects Black North Carolinians, given disparate outcomes in the criminal justice system involving people of color.

“It is intentionally designed to discriminate against African Americans, the trial court found,” Jones said. “This specific, intentional racial discrimination here was disenfranchising the class of voters, people who have felony convictions but are not incarcerated and living in the community. That was the racist design going back to 1877.”

Jones denounced the argument, made before the trial court, that the law is race-neutral since it treats Black and white residents who have felony convictions in the same manner. “That rationale would justify a poll tax or a literacy test,” Jones said. “A literacy test disenfranchises 100 percent of white people and Black people who can’t pass the literacy tests.”

Another core argument for Patterson was that the plaintiffs’ case is moot because the North Carolina constitution explicitly authorizes felony disenfranchisement—a point that at least one of the new GOP justices seemed to agree with. 

“This court would be creating tension if it says that felons have a fundamental right to vote, because there’s a provision in the constitution that says explicitly that they do not,” Patterson said.

Pointing to Article VI of the state constitution, he said people convicted of felonies did not have the right to vote “unless and until their rights are restored in the manner provided by law.”

Jones rebutted Patterson’s take on Article VI, stating that it “does not give the legislature a special license to intentionally discriminate against African Americans.” The Article authorizes laws pertaining to disenfranchisement and re-enfranchisement, he said, but those laws must comply with another part of the constitution: the Equal Protection Clause. He was joined by Associate Justice Anita Earls, one of two Democrats on the high court, in mentioning the Equal Protection Clause, which has been used to support voting rights claims.

Allen, the new GOP justice, pushed back. “I think we all agree that means that felons don’t have the right to vote merely upon their release from prison or incarceration,” Allen said. “As I understand the constitutional provision, the default is no felon voting, except in the ‘manner prescribed by law.’ Where’s the law that prescribes that felons can vote, or may vote, simply upon being released from incarceration?” 

Associate Justice Phil Berger, Jr., echoed Allen’s point, evoking “a specific class of individuals, without regard to race, who have no right to vote under the constitution.” Berger is the son of the Senate’s Republican leader Phil Berger, who is among the defendants in this case. He declined to recuse himself.

But Daryl Atkinson, another attorney for the plaintiffs, echoed Jones’s appeal for the supreme court to protect North Carolinians’ fundamental rights. 

He stressed that barring people on supervision from voting has meant that people have had to pay off fines and fines, tying the right to vote to how much money someone has.

“Basically what’s undergirding opposing counsels’ arguments is that, people convicted of felonies, you can do any manner of things to them to discriminate against them, and it wouldn’t violate the constitution,” he said. “Your honor, that can’t be the way.” 

“Folks must still have some constitutional protections under the North Carolina constitution,” he added.

The video feed at First Baptist Church shut off as the justices stood, signaling that the court was in recess. The plaintiffs and their attorneys would soon join the overflow crowd at First Baptist for lunch. They would celebrate all that they had accomplished since the lawsuit began in 2019—even if their hard-fought gains may soon be lost.

Corey Purdie, the founder and director of Wash Away Unemployment, an organization that helps people released from prison transition to life in the free world, told NC Policy Watch and Bolts that those in the courtroom came bearing a message. 

“It’s showing that we care,” he said, “that people are present, that people are concerned, that people matter.”

The post North Carolina Supreme Court Signals It May Roll Back Voting Rights for Thousands appeared first on Bolts.

“We hold that the decision to terminate a pregnancy rests upon the utmost personal and private considerations imaginable, and implicates a woman’s right to privacy,” Justice Kaye Hearn wrote in the lead opinion, pointing to language embedded in the South Carolina Constitution.

The six-week ban was passed in 2021 by the Republican legislature, which saw it as an invitation for the U.S. Supreme Court to overturn Roe v. Wade. After the court’s Dobbs ruling in June, the ban briefly came into effect until the state supreme court blocked it in August. At the time, the justices left unresolved whether they thought that the law violated the state constitution’s privacy-rights protection—but they settled that question with their ruling this week.

The ruling is fragile since one of three justices in the majority is leaving the court next month, and another must retire by 2024. But advocates for abortion rights were quick to cheer the ruling, the latest showcase of the extraordinarily heightened stakes of state courts since last summer.

“The court’s decision means that our patients can continue to come to us, their trusted health care providers, to access abortion and other essential health services in South Carolina,” Jenny Black, the president of Planned Parenthood South Atlantic, one of the plaintiffs in the case, said in a statement on Thursday.

After the Dobbs decision overturned federal protections for abortion and triggered bans around the country, abortion rights advocates turned to state courts, asking them to shield abortion access by affirming it as a right under their state constitutions. States are required to abide by the minimum protections recognized by the U.S. Constitution, but their courts are free to recognize a greater level of protection—and more rights—based on state constitutional provisions. 

The ruling from the South Carolina supreme court marks the first time since Dobbs that a state supreme court has rewarded that strategy and struck down an abortion restriction on state constitutional grounds.  

A dozen supreme courts had already affirmed by 2022 that their state constitutions recognize abortion rights, a state-by-state analysis by Bolts found in July. These rulings, like South Carolina’s, relied on interpreting language like an equal protection clause and privacy protections. In August, Kansans voted down a measure that would have overturned such a ruling; in November, voters in California, Michigan, and Vermont approved referendums that added explicit protections for abortion rights into their constitutions, becoming the first states to do so. 

The South Carolina Supreme Court flirted with that step on Thursday, though whether it actually affirmed a constitutional right to abortion is a matter of some confusion—even to its own members. Two of the justices in the majority wrote that the state constitution contains the right to an abortion. But the third, Justice John Few, took pains to distance himself from that conclusion, even while writing that abortion access falls under the constitution’s right to privacy. Justice John Kittredge, in his dissent, notes that Few’s opinion is “less clear, at least to me.”

Those nuances do not change the immediate fate of the 2021 law, said Jace Woodrum, executive director of the ACLU of South Carolina. 

“Although it is rare for… all the justices to write separately, the result is the same: the Legislature’s six-week ban is struck down as unconstitutional, and abortion in South Carolina remains legal up to 20 weeks,” he told Bolts.

In other states, lawsuits appealing to the state constitutions have seen some initial success but few courts have reached final decisions. On Thursday, though, the Idaho Supreme Court held that its state constitution does not protect abortion. The conservative court handed down an opinion steeped in originalist philosophy that concluded “the relevant history and traditions of Idaho show abortion was viewed as an immoral act and treated as a crime.”

The South Carolina court’s ruling hinged on interpreting the state constitution’s clause against “unreasonable invasions of privacy.” That provision, embedded in its Declaration of Rights, generally relates to “searches and seizures,” and so opponents of abortion in South Carolina argued that the protection is limited to the context of criminal procedure. But the state supreme court on Thursday rejected this argument, holding that this right to privacy applies to abortion even if “the words used do not specifically mention medical care or bodily autonomy.” 

Because the six-week ban “leav[es] no room for many women” to exercise their choice to continue a pregnancy, Hearn wrote, it “prohibits certain South Carolinians from making their own medical decisions.” This “cannot be deemed a reasonable restriction on privacy.” 

Hearn also drew on a broad history of privacy-rights protection in the United States to make that case, including the decisions of other state supreme courts, including Alaska, Florida, Minnesota, Montana, and Tennessee, that also applied the right to privacy to abortion rights. 

The majority’s decision came with limits, though. Hearn’s lead opinion states that the abortion right protected by the state constitution “is not absolute.” It emphasizes that a six-week ban limits abortion access “before many women . . . even know they are pregnant” and “severely limits” or “completely forecloses” its availability. And Few’s concurrence outlines seemingly weaker standards of scrutiny and pushes against the notion that the right to seek an abortion is “fundamental” in the state constitution. These leave open the possibility that the same justices would uphold other types of abortion restrictions in the future.

Still, Woodrum, of the ACLU, said the differing opinions that make up the majority are a sign of strength for the position that abortion bans are unconstitutional. “There are many different paths to take that arrive at the same conclusion.”

“There is no doubt in my mind that some of our legislators will respond to this decision with more misguided attempts to ban abortion,” Woodrum said. “For months last fall, some legislators attempted to pass a complete ban on abortion, arguing that even the extreme six-week ban wasn’t enough. They weren’t successful, but we remain concerned that some of our elected officials will continue to ignore the Constitution and push to limit the reproductive rights of South Carolinians.”

Plus, the court’s composition will soon change, which could also change its approach to abortion rights. Hearn, who wrote Thursday’s lead opinion, is leaving the court in February because she has reached the mandatory retirement age of 72. Chief Justice Donald Beatty, who joined her in the majority, must also retire within the next two years. 

Members of South Carolina’s supreme court are elected by the legislature, which has a large Republican majority. But the legislature does not have absolute autonomy. The Judicial Merit Selection Commission considers prospective candidates and presents a slate of options to the legislature, which can elect one of the nominees or reject the entire slate and start the process over again.

Conservatives in red states have expressed frustration at such arrangements for preventing them from nominating politically reliable jurists on state courts. South Carolina’s process is built on informal but entrenched customs, which have historically included pledges of support for judicial candidates and vote-trading among legislators. The creation of the merit-based selection process in 1996 eroded some of these practices, but informal jockeying still takes place. 

Still, for advocates in other states who are fighting similarly harsh abortion bans in the state courts, the outcome in South Carolina is encouraging and shows that even courts dominated by Republican appointees may be unwilling to sanction near-total bans on abortion.

The post South Carolina Supreme Court Recognizes that Privacy Rights Protect Abortion Access appeared first on Bolts.

The result in Michigan will have the most immediate effects since, unlike California and Vermont, Michigan has a statutory ban on abortion on the books. Proposal 3, which affirms a “fundamental right to reproductive freedom,” passed on Tuesday, overturning the state’s abortion ban and protecting access going forward. ABC News called the race in favor of the measure which, as of publication, led 53 percent to 47 percent.

Meanwhile,  California voters overwhelmingly to  add a “fundamental right to choose to have an abortion” and a “fundamental right to choose or refuse contraceptives” to the state’s constitution. Vermont voters also approved language adding a  “right to personal reproductive autonomy” to that state’s constitution by a wide margin on Tuesday.  

Whether state constitutions protect abortion rights—and how state courts interpret those protections—has been a critical question in the aftermath of the U.S. Supreme Court’s decision to overrule Roe v. Wade. The conservative court’s ruling only concerned whether abortion rights were protected under the federal constitution, but each state’s constitution can set higher standards for the protection of individual rights and liberties. Additionally, though individual rights to contraception are currently recognized by the Supreme Court’s decision in Griswold v. Connecticut, many observers have speculated that the Court may overrule that decision, too. Accordingly, it is significant that all three constitutional amendments that passed tonight also recognize—explicitly or implicitly—individual rights to contraception.

An analysis published by Bolts in July found that a dozen state supreme courts have ruled that their states’ constitution recognizes abortion rights. But until Tuesday, no state constitution explicitly declared such a right; judges in those states relied on provisions that talked about a right to privacy or about due process. California, Michigan, and Vermont are the first three states to add provisions into their constitution that explicitly codify the right to an abortion. 

They likely will not be the last, with Democratic governors around the country calling for similar amendments and with abortion-rights advocates motivated by tonight’s results.

In states with abortion bans, advocates have also turned to courts to challenge their legality under state constitutions, hoping that more judges might recognize abortion protections.

Tuesday’s elections decided the courts’ balance of power in populous states that may face showdowns over abortion rights. The GOP gained a new majority on the state supreme court in North Carolina, and narrowly retained its majority in Ohio; Democrats are favored to retain their majority on the Michigan supreme court. In another major race where abortion was on the line, Republicans also failed to take full control of the state government in Pennsylvania, another battleground on the issue; Governor-elect Josh Shapiro, a Democrat, favors abortion rights and would be poised to veto bills that carry restrictions.

Tuesday’s results build on the landslide in favor of abortion rights in a referendum in Kansas in August. Earlier this year, Republican lawmakers in Kansas proposed a constitutional amendment that would have effectively overruled a landmark decision by the Kansas supreme court in 2019 protecting abortion rights, but Kansas voters rejected that amendment.

Kentuckyians were similarly voting on Tuesday on a constitutional amendment that would have declared that their state constitution does not protect abortion rights, and just like Kansas they rejected the measure. The result is welcome news to abortion-rights advocates and opponents of the proposed amendment, which significantly outraised and outspent supporters. However, the failure of the amendment itself will not legalize abortion in Kentucky. Ongoing litigation at the Kentucky Supreme Court, which concerns whether the state constitution implicitly includes abortion rights, will ultimately determine the legality of abortion in the commonwealth. 

Also in Kentucky, a conservative lawmaker who championed abortion restrictions in the legislature lost an election to join the state supreme court.  

Montana decided yet another measure pertaining to abortion on Tuesday. Unlike the other referendums, this concerned a state statute that required medical care be given to any infant “born alive” after induced labor, cesarean sections, or attempted abortions. The bill was drafted to mirror model legislation advanced by national anti-abortion groups, and was condemned by abortion-rights advocates and abortion providers as addressing a non-existent problem—especially given the rarity of late-term abortions generally. The measure appeared to be failing on Tuesday night, but regardless would likely have little impact on the legality and availability of abortion in Montana.

Of Tuesday’s referendums, Michigan’s Prop 3 drew the most attention heading into Tuesday. 

Passage of the measures in California and Vermont was never seriously in doubt given both states’ socially liberal bent. Both states enable abortion access, and the California Supreme Court has recognized an implicit state constitutional right to reproductive rights since the early 1980s. However, the addition of explicit constitutional protections further entrenches abortion rights in both states, and insulates them from the prospect of future supreme courts changing course.

Michigan, though, is more politically divided and Prop 3 faced a heavy opposition campaign. Attacks from opponents of the measure falsely argued that passage of the amendment would allow children to have access to “gender change therapy without parental consent,” a charge that appeared in television advertisements and was widely condemned as false.

The measure was also set to offset the status quo. The U.S. Supreme Court’s Dobbs decision “triggered” old statutes outlawing abortion in many states around the country. In some places, this meant returning to laws that were a century old—and in some cases, even older. Arizona returned to its 1864 ban, adopted when it was still a territory, and Wisconsin returned to its 1849 ban. In Michigan, the ruling threatened to reactivate the 1931 abortion ban, raising the prospect of widespread criminalization, even as some liberal prosecutors promised to resist it.

But the ban was blocked by state courts, with the state court of appeals halting the law’s enforcement and the state court of claims holding that it ran afoul of the state constitution. The issue was still pending before the state court of appeals, however, and the passage of Proposal 3 all but guarantees that the 1931 ban will be held unconstitutional.

With the amendment’s passage in hand, abortion will remain lawful in Michigan—and protected as a “fundamental right,” meaning that state courts will critically evaluate infringements on the right.

The post Measures to Protect Abortion Rights Triumph on Tuesday appeared first on Bolts.

Three of the court’s four rulings came down in narrow 4-3 decisions, all along party lines with the four Democratic justices banding together and the three Republicans dissenting. (One Republican crossed over in the final case.) Each of the Democrats wrote for the majority in one of the four rulings, signaling their broad agreement that state practices are in need of change.

This shake up highlighted the importance of Michigan’s upcoming Supreme Court elections, which could flip the court’s partisan balance. Democrats currently enjoy a 4-3 advantage on the court, but one justice from each party is running for re-election in November. The Republican justice on the ballot, Brian Zahra, dissented in all four cases and made it clear in his opinions the lengths to which he would go to make punishment harsher in Michigan.

The decisions come as some progressives look to state courts as one possible workaround for the conservative control of the federal bench. On matters ranging from abortion to criminal justice, state courts can provide greater protections than those the U.S. Supreme Court finds in the federal constitution by turning to state statutes or state constitutional provisions.

Michigan’s court decided the four cases by building on U.S. Supreme Court decisions, but they relied on the Michigan Constitution and Michigan laws to go further than the U.S. Supreme Court has gone—and has signaled it will go with its current membership. 

The U.S. Supreme Court restricted harsh sentences against children in a series of major rulings between 2005 and 2016. The court first banned imposing the death penalty on minors and life sentences without the possibility of parole (called LWOP) for non-homicide cases. Then, in a 2012 ruling (Miller v. Alabama), the court barred mandatory LWOP sentences for any crimes, including first-degree murder, committed by people under 18; four years later, in Montgomery v. Louisiana the court held that Miller decision applied retroactively, and that people already sentenced under a mandatory LWOP law should have an opportunity for a different outcome.

Under a mandatory sentencing scheme, any minor who is convicted of certain acts is automatically handed an LWOP sentence, with no additional consideration. The U.S. Supreme Court, in these rulings, held that LWOP is so extreme that, before subjecting a child to it, a court has to at least consider whether the acts reflect “permanent incorrigibility” rather than “transient immaturity.” The court did not bar sentencing minors to LWOP, but it opened a door for many who expected to die in prison and limited future LWOP sentences.

Michigan was heavily impacted by the Miller and Montgomery rulings, due to the large number of minors handed mandatory LWOP sentences in the state. As of 2015, when Montgomery was heard, Michigan had 368 incarcerated people in that category. Only Pennsylvania, a state known for very aggressive life sentences, had more.

In implementing the decisions, the Michigan legislature eliminated mandatory LWOP sentences for acts a person committed while a minor. It also allowed for anyone sentenced to a mandatory LWOP sentence as a child to be resentenced under the new rules. 

Still, many other states have gone much further over the past decade by entirely abolishing LWOP sentences for minors. Michigan has not. Incarcerated Michiganders who get a new day in court are entitled to have their sentence reconsidered, but they can end up with a new LWOP sentence—and many local prosecutors have fought to ensure that they do.

In the years since, reform advocates have kept fighting to reduce the scope of these sentences, including by electing prosecutors who promise to not fight resentencing hearings and filing new lawsuits to chip away at the sentences. And they scored successes in court last month.

In its first 4-3 case, the Michigan Supreme Court ruled that it is unconstitutional under Michigan’s constitution to sentence a minor to life without parole for second-degree murder. Chief Justice Bridget Mary McCormack explained that the Michigan Constitution’s bar on “cruel or unusual punishments” provides “slightly broader protection” than the U.S. Constitution’s Eighth Amendment bar on “cruel and unusual punishments”—“not surprisingly given the plain meaning of conjunctions.” 

The notion that this distinction—between “or” and “and”—makes Michigan’s constitution more protective was not a new argument; it is the court’s longstanding position, fleshed out into a test for the court to apply decades ago and established even earlier. In People v. Lorentzen, a 1972 decision, the court held that a mandatory minimum sentence of 20 years for the sale of marijuana is unconstitutional due to Michigan’s “cruel or unusual” provision: “The prohibition of punishment that is unusual but not necessarily cruel carries an implication that unusually excessive imprisonment is included in that prohibition.”

The court has since adhered to this critical holding. But Zahra, the Republican justice who wrote the primary dissenting opinion in the case, made it clear he wants to change this. The court should “revisit whether the textual difference between [the Michigan Constitution] and the Eighth Amendment translates into a greater protection under the Michigan Constitution,” he wrote. Zahra’s move prompted McCormack to write a separate opinion detailing the history of the court’s approach.  And that in turn prompted Zahra to lambast McCormack. “Chief Justice McCormack embraces a cafeteria-style approach to constitutional interpretation,” he wrote at one point.

In a second decision, written by Justice Megan Cavanagh, the court increased the burden on prosecutors who are looking to sentence a minor to LWOP. The court ruled 4-3 that a prosecutor must prove that they are not seeking a disproportionate sentence. In plain English, the court held that Michigan’s legislature had made it clear that it was the prosecutor’s decision to seek LWOP, and, as such, it was up to the prosecutor to prove that it’s justified and not the defendant to prove it’s not justified. (Here again, the court’s three Republican justices dissented.)

The court’s third and fourth decisions, issued on the same day, brought the logic of shielding children from mandatory LWOP into new spaces—in one case to protect slightly older teenagers, and in another to question other types of harsh sentences.

In the third case, the court considered the mandatory LWOP sentence that was imposed on a teenager who was already 18 at the time of his crime, and so was no longer covered by the protections afforded under the Miller and Montgomery rulings. Even so, the court ruled in another 4-3 opinion that the mandatory LWOP sentence that he received violated the Michigan constitution’s “proportionality” requirement and was cruel under the state’s constitution. 

The majority opinion, written by Justice Elizabeth Welch, took issue with an arbitrary cutoff age of 18 for protections for youth. “Because of the dynamic neurological changes that late adolescents undergo as their brains develop over time and essentially rewire themselves, automatic condemnation to die in prison at 18 was cruel,” she wrote. “The logic articulated in Miller about why children are different from adults for purposes of sentencing applied in equal force to 18-year-olds.“ 

The court ruled that other 18-year old defendants should also be entitled to an “individualized sentencing procedure,” rather than a mandatory sentence, when they face LWOP. But Zahra wrote in dissent to again say that he would have the court revisit its longstanding interpretation of the state constitution’s “cruel or unusual” clause.

In the fourth and final case, the court looked beyond life without parole.  It provided new protections for some Michigan youth facing other sentences that are technically lower but still very harsh.

The 5-2 decision, written by Justice Richard Bernstein, applies only to the sentencing of people convicted of the high-level crimes that are eligible for LWOP.  In those cases, the court ruled, judges must consider youth as a mitigating factor in sentencing even when LWOP isn’t being sought, and even the prosecutor is instead seeking a set number of years of prison time. (The court also ruled, though, that the sentencing court does not need to explicitly detail how it considered youth as a mitigating factor. Justice Elizabeth Clement, the one Republican to join the majority, split on one of the two cases under consideration, saying that a brief mention of the defendant’s youth at sentencing was enough. The four-justice Democratic majority disagreed and still sent it back to the lower court for further review.)

Zahra, again, wrote the dissenting opinion, arguing that the court should not “extend” Miller to cases where prosecutors are not seeking LWOP sentences. He concluded that he therefore would have upheld both of the sentences—of 40 to 60 years in prison—without any further inquiry. Clement, one of Zahra’s two fellow Republicans on the court, wrote separately, in part to counter Zahra’s claim, writing that “the majority opinion in this case” is not “extending” Miller. “Accordingly, I concur with its holding that the mitigating effects of youth must be considered during term-of-years juvenile sentencing,” she wrote.

Zahra and Bernstein are each seeking new eight-year terms this fall. Michigan’s supreme court races follow a hybrid system; partisan nomination processes are followed by general elections where candidates for all seats share a single ballot that does not note their party ID. In 2022, this means that Bernstein and Zahra will be on one ballot alongside other candidates, and the top two vote-getters will win.

Neither party has yet held its convention to nominate candidates, but Kyra Harris Bolden, a state lawmaker, will likely be the Democratic nominee and Paul Hudson, an appellate lawyer, will likely be the GOP nominee.

Democrats need only to win one of the two seats to maintain the majority, while Republicans must sweep both to flip the court. Hundreds of court cases involving minors are working their way through Michigan courts, and the high court signaled its interest in bringing new scrutiny to how youth are being treated. But whether that interest lasts beyond 2022, and perhaps pushes into new directions, now hangs in the balance.

The post Michigan Supreme Court Restricts “Cruel” Treatment of Youth in Run of Major Decisions appeared first on Bolts.

The victory for abortion rights advocates was decisive, with 61 percent voting to reject the amendment as of publication. It is the first major win for abortion rights advocates following the Supreme Court’s Dobbs ruling on June 24 overturning Roe v. Wade. The vote also keeps in place a Kansas Supreme Court ruling three years ago that held abortion rights were protected under the state’s constitution.

“I think this was a passionate issue for folks, it goes beyond party lines, it’s about health care,” said Christina Haswood, a Democratic member of the Kansas House of Representatives from a district around Lawrence. Haswood, who is Navajo and the youngest member of the legislature, pointed to high mortality rates for Native people who are pregnant. “As a young Indigenous woman, at the end of the day this boiled down to life or death.”  

The state’s urban and suburban areas rejected the measure by huge margins, up to 85 percent to 15 percent in Douglas County, which contains Lawrence. And while the amendment largely carried the state’s rural counties that vote massively Republican, the margins were considerably tighter than these areas’ usual red hue.

Tuesday’s vote highlights the critical role that state constitutions are playing in setting the landscape for abortion access and criminalization after Roe. The federal Constitution sets a floor for what’s considered a protected right, but states are free to set higher standards, and judges often interpret state constitutions and bills of rights more expansively. Two doctors sued to challenge Kansas’s 2015 law banning dilation and evacuation abortions (the most common procedure for second-trimester abortions), arguing that Section 1 of the Kansas Bill of Rights—which protects “life, liberty, and the pursuit of happiness,” language borrowed from the Declaration of Independence—sets such a higher standard for abortion rights. 

In 2019, most of the Kansas Supreme Court agreed. The court ruled 6–1 that the state constitution “acknowledges rights that are distinct from and broader than the United States Constitution,” including the right to “personal autonomy,” which the judges wrote “allows a woman to make her own decisions regarding her body, health, family formation, and family life—decisions that can include whether to continue a pregnancy.” 

The Kansas legislature responded by putting the question directly to voters, with a constitutional amendment to overturn the state supreme court’s ruling on the ballot. But rather than risk the issue being decided in the higher-turnout general election, lawmakers called a “special election” that coincided with the primaries, which historically see lower turnout from Democratic and moderate voters in the state. Election-denying conservatives around Wichita who supported the amendment also spread lies about voter fraud to try and pressure local officials to remove ballot drop boxes ahead of the election, according to The Wichita Eagle. 

But turnout was considerably higher than in past primary elections, suggesting that the debate on abortion had a mobilizing effect on the electorate. In Wyandotte County (Kansas City), the turnout rate on Tuesday was 35 percent, compared to 25 percent in the last midterm primaries.

The amendment’s defeat on Tuesday means that the Kansas Supreme Court’s ruling affirming the right to an abortion remains the law in the state. 

But uncertainties remain regarding the long-term viability of the current constitutional protections. Two new justices have been appointed to the court since its 2019 decision, and though they were both appointed by the Democratic governor, the state’s nonpartisan judicial nominating process means that the ideological leanings of appointees aren’t always clear. With a Democrat currently in the governor’s mansion, wielding veto power, the Kansas legislature has not had the opportunity to outlaw abortion in the aftermath of Roe v. Wade; such a ban could force the state supreme court to weigh in again on the issue in the coming years.

The upcoming November elections will further reshuffle the balance of power over the issue. The state has a fiercely competitive gubernatorial election between Democratic Governor Laura Kelly, who supports abortion rights and opposed the amendment, and Attorney General Derek Schmidt, who clinched the Republican nomination tonight; Schmitt opposes abortion and supported the amendment. 

The governor’s race is one of several in the country that will decide if conservatives are able to push through new restrictions next year “I just hope that I’m here to modify whatever comes forward” in the next legislative session, Kelly said before the election. Even if Kelly were to win re-election, conservatives hope to gain ground in the legislature to secure a veto-proof majority against abortion.

Additionally, six of the seven justices on the Kansas Supreme Court face retention elections this year, which means voters will choose “yes” or “no” on whether each justice should serve another six-year term; several were on the court in 2019 and ruled in favor of abortion protections. The seventh justice, Eric Rosen, hits the mandatory retirement age of 75 in 2028, meaning that the next governor will pick his replacement. Though no supreme court or appellate judge has ever lost a retention election in Kansas, there have been several close calls recently. And since abortion protections in the state rest on a decision by the court, anti-abortion advocates already have plans to unseat the more liberal justices on the court this year.

The saga in Kansas also underscores how state constitutions have become new battlegrounds for abortion rights. In states with “trigger” laws that automatically banned abortion following the U.S. Supreme Court’s reversal of Roe, litigation began almost immediately attempting to block the anti-abotion laws under state constitutions—despite early successes, it’s unclear how that strategy will play out in states with conservative judiciaries.

After the U.S. Supreme Court’s decision in Dobbs, Bolts published a nationwide survey of the status of abortion rights under state (and territorial) constitutions. With today’s results in Kansas, there remain eight states where a still-binding ruling by state courts unambiguously affirms a right to abortion, with some confusion over the situation in a half-a-dozen additional states.

The landscape is likely to continue changing.  Supreme court elections are on the ballot this year in many states, which could affect the status of abortion rights in a number of swing states such as Michigan and North Carolina in coming years.

And voters will pass judgment on similar amendments. Later this year, voters in Kentucky will approve or reject a nearly identical amendment, and voters in California and Vermont will vote on adding explicit protections for abortion rights in their state constitutions. Voters in Michigan may vote on a similar measure, as abortion rights advocates recently submitted more than 700,000 signatures for an initiated constitutional amendment that would protect abortion rights. With Democratic governors calling for constitutional amendments to safeguard abortion rights in their states, other amendments could be on the ballot this year—or in the coming years

“[T]he story is much bigger because it reveals that abortion rights are supported even in the reddest states and that Republican legislatures are legislating in a way that is out of step with their constituents,” said Greer Donley, an Associate Professor of Law at the University of Pittsburgh School of Law who has written extensively on abortion rights. 

“It also creates a playbook for restoring abortion rights on a state-by-state basis, even in red states,” she added. ““The important thing about these amendment votes is that they detach party identity from abortion politics and allow voters to vote on the issue without having to abandon their party. They could be the way forward.”

The post Kansas Voters Reject Constitutional Amendment to Erode Abortion Rights appeared first on Bolts.

Just days before the U.S. Supreme Court overturned Roe vs. Wade, another high court tossed aside a separate precedent that protected abortion rights. The new conservative majority on the Iowa Supreme Court ruled on June 17 that Iowa’s state constitution does not guarantee a right to access abortions, striking down a 2018 ruling that had held the opposite.

This week, though, a state judge in Florida temporarily blocked new abortion restrictions on the basis that they violate his state’s constitution. Lawsuits are now asking state judges in Idaho, Oklahoma, and Utah to affirm the presence of similar rights in their own constitutions.

As states rush to respond to the U.S. Supreme Court’s ruling, state constitutions—and the judges who have the power to interpret them—have emerged as critical battlegrounds. 

The rights and liberties protected by the federal Constitution only set a floor, not a ceiling, for the rights people enjoy at the state level. States cannot provide less protection than the federal constitution, but they can provide more. Every state constitution contains a bill of rights and other provisions that are semantically similar to the federal Constitution’s, and judges often interpret these state constitutional provisions more expansively. With federal lawsuits now effectively blocked on abortion, as on other issues, many of these state courts now offer a more promising playing field for progressive litigators.

In Kansas, for instance, abortion access is protected as of now by a 2019 ruling by the state supreme court that the state constitution provides a right to abortion. Many other state courts across the country have similarly established that their state constitutions recognize abortion rights. 

These rulings rely on varying provisions that are embedded in many state constitutions; most commonly, equal protection clauses, due process clauses, implied or explicit rights to privacy, and gender-equality provisions. (No state constitution has a provision that nominally enshrines a right to abortion, though there are active efforts to change that.) The presence of such clauses in a state constitution does not guarantee that courts apply it to abortion. Eleven states have clauses in their constitutions that mention privacy, for instance, but only some of their high courts have held that the provision protects abortion rights. Where they have, courts frequently rely on state-specific histories and the contexts of their adoption.

Even where courts have held that the state constitution protects abortion rights, there is not always robust access to abortion. In Kansas, the state supreme court’s 2019 holding coexists with very onerous restrictions. Mississippi’s court affirmed severe restrictions even while it affirmed a right to abortion in 1998, and its precedent has not been tested in decades, though state advocates hope it can now come into play. 

Still, as long as they’re standing, such interpretations are a shield against all-out bans. And they survive the U.S. Supreme Court’s Dobbs decision to overrule Roe. 

Whether they multiply or atrophy now depends on battles that will be distinct to each state.

To enable a more informed picture of how state constitutions impact abortion rights, Bolts is publishing a state-by-state analysis of how state courts have interpreted their constitutions. The analysis also covers U.S. territories and the District of Columbia.

Many courts’ balance of power is precarious, and changes in their composition can massively upheave how a court interprets these provisions. The rapid shift in the Iowa supreme court’s jurisprudence followed changes to the state’s judicial nominating process, which gave Republican Governor Kim Reynolds more power over nominees and brought more conservative justices into office. Florida may be undergoing a similar shift. Its supreme court has interpreted the state constitution’s explicit right to privacy as protecting abortion rights since the late 1980s, but Republican Governor Ron DeSantis has reshaped the court’s liberal majority into a conservative supermajority—with potentially dire consequences for abortion rights in the state.

Inversely, Democrats flipped the Michigan supreme court in the 2020 elections; this now looms large over the fate of abortion rights. The court is considering whether to strike down the state’s pre-Roe abortion bans, and that lawsuit would face tougher odds if Republican justices held a majority of the seats.

This landscape is now in flux. Many courts are facing rapid decisions they’ve avoided so far, and the midterm elections and other appointments in upcoming years may reshuffle who has authority over state constitutions.

Bolts’s guide to 2022 state supreme court elections, published in May, shows all supreme court seats that are up this year across the nation, and how they could affect their state’s politics. Michigan’s high court could flip back to the GOP, as might Illinois and North Carolina’s, with major efforts for abortion. Conservatives also hope to gain in Montana, where abortion rights hinge on the state supreme court. Democrats hope to flip Ohio’s.

Where they can, pro-choice advocates are pursuing other avenues that would not rely on the vagaries of state supreme courts. This includes pressuring legislatures to strengthen state laws to championing constitutional amendments that explicitly codify the right to an abortion so as to not rely on judges’ interpretations of language like equal protections or due process clauses.

California and Vermont may become the first states to amend their constitutions to explicitly codify abortion rights this year; both states are voting on constitutional amendments in November. There could be still other amendments ratified this year protecting abortion rights, though one major push to join this trend has fallen short so far in New York.

Meanwhile, conservatives have sought to nullify or forestall rulings protecting abortion rights by amending state constitutions. In Tennessee and West Virginia, Republicans responded to decades-old rulings that recognized abortion rights by proposing constitutional amendments overturning those rulings; voters narrowly approved those proposals in both states. Similar efforts have failed elsewhere, however. This year, voters will decide amendments that say that the state constitution does not protect abortion rights in Kansas in August and Kentucky in November; the Kansas measure, if approved, would overturn the state supreme court’s 2019 ruling.

In each state, the stakes are muddled by the complicated mass of precedents, provisions, and rulings that make up its legal status-quo and govern whether the state constitution currently protects access to abortion—and if not, whether it likely could. We hope that the analysis below brings additional clarity.

For additional reading, see these resources compiled by the Center for Reproductive Rights and the Guttmacher Institute, which will be invaluable to readers who want to learn more about these state court decisions.

Alabama

Does a still-binding ruling hold that the constitution contains a right to abortion? No

Context: Alabama courts long established that the state constitution does not guarantee a right to abortion. In 2018, voters reinforced this by adding Section 36.06 to Article I of the state constitution, which recognized the rights of an unborn fetus and explicitly established that the constitution does not guarantee a right to an abortion.

Alaska

Does a still-binding ruling hold that the constitution contains a right to abortion? Yes.

Context: Since the 1990s, Alaska courts have interpreted the state constitutional right to privacy in Article I, Section 22, to include abortion rights. This precedent was established in 1997 with Valley Hospital Association v. Mat-Su Coalition for Choice and reinforced in 2019 with  State v. Planned Parenthood of the Great Northwest. 

Alaskans will vote in November on whether to hold a constitutional convention, and abortion has become a clear dividing line because reversing the 1997 ruling with a constitutional amendment would require a constitutional convention.

American Samoa

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The High Court of American Samoa has not ruled on whether the territorial constitution recognizes a right to abortion.

Arizona

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Arizona Constitution does contain an explicit right to privacy in Article II, Section 8, but the Arizona Court of Appeals declined to rule on whether abortion rights are protected in the constitution in a 2011 case. 
However, the Arizona Supreme Court held in 2002 that the state was required to provide funding for abortion services for low-income residents in some circumstances.

Arkansas

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Arkansas Constitution was amended in 1986 to add Amendment Article 68, which prohibits the use of public funds for abortions and establishes a “public policy” against abortion. Public policies have generally been held by state supreme courts to not be binding, but here could result in a state court holding that there is no right to abortion in the state constitution.

Arkansas

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Arkansas Constitution was amended in 1986 to add Amendment Article 68, which prohibits the use of public funds for abortions and establishes a “public policy” against abortion. Public policies have generally been held by state supreme courts to not be binding, but here could result in a state court holding that there is no right to abortion in the state constitution.

California

Does a still-binding ruling hold that the constitution contains a right to abortion? Yes.

Context The California Supreme Court has consistently held since the early 1980s that the implied right to privacy in Article I, Section 1, of the constitution encompasses abortion rights. In November 2022, Californians will vote on a constitutional amendment establishing an explicit right to abortion.

Colorado

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Colorado Supreme Court has issued a set of rulings since 1990 that have expressed some friendliness toward abortion rights, but these ruling have not established them as state constitutional rights. 

Colorado voters have repeatedly rejected anti-abortion constitutional amendments, including so-called personhoodamendments, though they did amend the state constitution in 1984 to add Section 50 to Article V, which bans the public funding of abortions, and subsequently rejected several amendments to remove the prohibition.

Connecticut

Does a still-binding ruling hold that the constitution contains a right to abortion? No, but it’s complicated.

Context: In 1986, a superior court in Connecticut (the state’s equivalent of a trial court) recognized abortion rights under the state constitution on the basis of a right to privacy implied by Article I. But the Connecticut Supreme Court has declined to do so (most recently in 2010), and superior court rulings in Connecticut do not constitute binding precedent.

Delaware

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Delaware Supreme Court has not ruled on whether the state constitution contains any protections of abortion rights.

Florida

Does a still-binding ruling hold that the constitution contains a right to abortion? Yes.

Context: Since the late 1980s, the Florida Supreme Court has repeatedly interpreted the right to privacy that is contained in Article I, Section 23, of the constitution as including abortion rights. The court has routinely struck down state legislation that has infringed on the right. But with the new conservative majority on the Florida Supreme Court, these holdings are vulnerable. A trial court judge struck down the state’s new 15-week abortion ban this week in a case that is expected to work its way through the state system.

Georgia

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Georgia Constitution contains an implied right of privacy in Article I, Section 1, Paragraph 1, but the Georgia Supreme Court declined to say if abortion rights are protected under the state constitution in the 2017 case Lathrop v. Deal.

Guam

Guam does not have a constitution; it operates under the Organic Act of Guam, which can be modified by the U.S. Congress. Guam has no legal protections for an abortion.

Hawaii

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Hawai’i Constitution contains an explicit right to privacy in Article I, Section 6, but the Hawai’i Supreme Court has not interpreted that provision to include abortion rights. In a nonbinding opinion from 1994, the state Attorney General has suggested that the right to privacy does include abortion rights.

Idaho

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Idaho Constitution contains an implied right to privacy in Article I, Section 1, but the Idaho Supreme Court has not interpreted that provision to include abortion rights. Recently, however, a lawsuit was filed against Idaho’s “trigger law” that asks state courts to recognize such a right.

Illinois

Does a still-binding ruling hold that the constitution contains a right to abortion? Yes, but it’s complicated.

Context The Illinois Supreme Court interpreted the equal protection and due process clauses in the state constitution’s Article I, Section 2 (though not the explicit right to privacy in Article I, Section 6) as protecting abortion rights in its 2013 decision in Hope Clinic for Women v. Flores. However, its decision in Hope Clinic held that the state constitution contained the same level of protections as the federal constitution. Following the U.S. Supreme Court’s decision in Dobbs, the status of abortion protections under the Illinois Constitution is unclear.

Moreover, the court’s majority could flip to the GOP this fall, when the state holds two supreme court elections; “an Illinois Supreme Court dominated by Republicans could potentially have a vast impact on abortion laws in Illinois,” The Chicago Sun Times reports.

Indiana

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context The Indiana Supreme Court declined to rule on whether the state constitution contains any protection of abortion rights in a 2005 case. Ten years later, in a 2016 case, the Indiana Court of Appeals noted that this is an “unresolved issue.”

Iowa

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context The Iowa Supreme Court, in a 2018 ruling, held that the due process clause in Article I, Section 9, provided protections for abortions.  

In June 2022, however, the new conservative majority on the supreme court reversed that ruling, holding that abortion was not protected under the state constitution. The new case, Planned Parenthood of the Heartland v. Reynolds, was testing the constitutionality of a 24-hour waiting period for abortions.

Kansas

Does a still-binding ruling hold that the constitution contains a right to abortion? Yes.

Context In a 2019 case, the Kansas Supreme Court held that the equal protection clause in Section 1 of the state constitution’s Bill of Rights included abortion protections. 

A constitutional amendment that would overrule this decision and enable new restrictions is on the ballot in August 2022.

Kentucky

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context The Kentucky Supreme Court has interpreted the state constitution’s privacy rights broadly in the past, for instance striking down a statute against sodomy in the 1990s. But it has not interpreted that provision to include protections for abortion rights. In November 2022, voters will decide a proposed constitutional amendment that would establish that there is no right to an abortion in the state constitution.

Louisiana

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: In 2020, voters added Section 20.1 to Article I of the constitution. It provides that the state constitution does not protect abortion rights.

Maine

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Maine Constitution contains robust protections of rights to liberty and safety, equal protection, and due process, but the Maine Supreme Judicial Court has not interpreted those provisions to protect abortion.

Maryland

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Maryland Court of Appeals (equivalent to the state supreme court) has not interpreted the state constitution to include abortion rights, although a 1989 opinion from the state Attorney General suggests that Article 24 of the Declaration of Rights could include abortion protections.

Massachusetts

Does a still-binding ruling hold that the constitution contains a right to abortion? Yes.

Context: Since the early 1980s, the Massachusetts Supreme Judicial Court has interpreted the state constitution’s due process clause in Article 10 of the Declaration of Rights to protect abortion rights in several cases. 

Voters in 1986 rejected a constitutional amendment that would have granted the legislature the power to regulate or prohibit abortions.

Michigan

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Michigan Supreme Court has declined to rule on whether the state constitution protects abortion rights. 

In a 1992 case challenging abortion restrictions, it held that the state’s equal protection clause had identical protections as the U.S. Constitution’s equal protection clause, which suggested that there may be a parallel right to abortion under the state constitution, but the court added it was “unnecessary to decide” that question. Governor Gretchen Whitmer has challenged Michigan’s 1931 ban on abortions, asking the Michigan Supreme Court to recognize that the state constitution guarantees a right to abortion.

Moreover, abortion access advocates are currently collecting signatures to place constitutional amendment on the ballot in November that would enshrine abortion rights.

Minnesota

Does a still-binding ruling hold that the constitution contains a right to abortion? Yes.

Context: In its 1995 ruling in Women of the State v. Gomez, the Minnesota Supreme Court interpreted the state constitution’s implied right of privacy (in Article I, Sections 2, 7, and 10) to include a right to abortion.

Mississippi

Does a still-binding ruling hold that the constitution contains a right to abortion? Yes, but it’s complicated.

Context: The Mississippi Supreme Court held in 1998 that the state constitution’s explicit right to privacy in Article III, Section 32, included a right to abortion. (In the case, Pro-Choice Mississippi v. Fordice, the court otherwise affirmed new restrictions on accessing abortions.) Moreover, in 2011, voters rejected a constitutional amendment that would have defined life as beginning at conception. 

Mississippi politicians passed a “trigger” law in 2017 meant to ban abortions in the state if the federal Supreme Court overturned Roe, but reproductive rights advocates filed a lawsuit after the Dobbs opinion, pointing to the 1998 ruling. That precedent is now vulnerable to being overturned by the conservative majority on the court, which would greenlight the ban. In addition, the court has not struck down abortion restrictions on the basis of the ruling, which has rarely been used. Still, the situation is introducing rare complications for a Deep South state. “As Mississippi’s trigger law has been discussed in the state and nationwide, no one has taken into account the fact that the state Supreme Court has said the Mississippi Constitution protects the right to an abortion,” Mississippi Today wrote this week. “Apparently, Mississippi legislators also had forgotten about the 1998 state Supreme Court decision when they passed the trigger law in 2007.”

Missouri

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Missouri Supreme Court has not ruled on whether the state constitution recognizes a right to abortion.

Montana

Does a still-binding ruling hold that the constitution contains a right to abortion? Yes.

Context: The Montana Supreme Court held in a 1999 case, Armstrong v. State, that the state constitution’s explicit right to privacy in Article II, Section 10, included a right to abortion. Recent efforts by conservatives in Montana to elect a conservative majority to the court, however, could call that holding into question.

Nebraska

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Nebraska Supreme Court has not ruled on whether the state constitution recognizes a right to abortion.

Nevada

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Nevada Supreme Court has not ruled on whether the state constitution recognizes a right to abortion.

New Hampshire

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The New Hampshire Supreme Court has not ruled on whether the state constitution recognizes a right to abortion. The state ratified a state constitutional right to privacy in 2018, but this provision has not been tested in court as applied to abortion.

New Jersey

Does a still-binding ruling hold that the constitution contains a right to abortion? Yes.

Context The New Jersey Supreme Court held in a 1979 ruling that the state constitution’s implied right to privacy in Article I, Paragraph 1, includes protection of abortion rights, which it applied in 2000 to strike down abortion restrictions.

New Mexico

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context The New Mexico Supreme Court has declined to rule on whether the state constitution recognizes a right to abortion. But in a 1998 case, it ruled that the state’s equal rights amendment requires the state, when it provides healthcare to low-income residents, to also provide abortion services.

New York

Does a still-binding ruling hold that the constitution contains a right to abortion? Unclear.

Context In the 1994 case Hope v. Perales, the New York Court of Appeals (the state’s highest court) struck down a law restricting abortion but it did so by issuing an unexpectedly narrow ruling that sidestepped the question of the extent to which the state constitution guarantees a right to abortion. The scope of the ruling remains unclear. Recent efforts by state Democrats to amend the constitution to codify abortion access as a right have not been successful.

North Carolina

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context The North Carolina Supreme Court has not ruled on whether the state constitution recognizes a right to abortion; a 1997 ruling rejected claims that the state’s denial of public funding for medically necessary abortions violated the state constitution.

The narrow Democratic majority on the current court could prove more sympathetic to abortion rights in prospective future cases, but the partisan majority is on the line in two state supreme court elections this November.

North Dakota

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context The North Dakota Supreme Court ruled in 2014 that the state constitution did not recognize a right to abortion, in the case MKB Management Corporation v. Burdick. Later in 2014, state voters rejected a constitutional amendment that would have defined life as beginning at conception.

Northern Mariana Islands

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The constitution of the Northern Mariana Islands explicitly outlaws abortion, and the territorial supreme court has not further elaborated on the legality of abortion. A 1995 nonbinding opinion from the territorial attorney general suggested that abortion rights may nonetheless be protected by the covenant between the United States and the territory, as well as the territorial constitution. However, this informal opinion seems unlikely to alter the legal landscape.

Ohio

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context The Ohio Supreme Court has not ruled on whether the state constitution recognizes a right to an abortion, but one of the state appellate courts rejected that argument in a 1993 case.

Organizations that support abortion access filed a lawsuit after the Dobbs decision, asking state courts to protect such a right under the Ohio constitution. The state supreme court has a narrow Republican majority that is on the line in the 2022 midterms.

Oklahoma

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Oklahoma Supreme Court has not ruled on whether the state constitution recognizes a right to abortion. A case presently before the court is seeking to recognize that right.

Oregon

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Oregon Supreme Court has not ruled on whether the state constitution recognizes a right to an abortion, though the Court of Appeals rejected that argument in a 1983 ruling.

The 1983 ruling by the Court of Appeals did find that, if the state is providing funding for medically necessary services for pregnancy and childbirth, then the state constitution requires that it provide funding for medically necessary abortions; but it explicitly said this ruling was not about establishing a constitutional right to abortion. In any case, the Oregon Supreme Court did not validate its lower court’s analysis in its own 1984 ruling.

Oregon voters have repeatedly rejected constitutional amendments that would have banned or severely limited abortions.

Pennsylvania

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context The Pennsylvania Supreme Court held in the 1985 case Fischer v. Department of Public Welfare that the state constitution does not protect a right to abortion. (Given the liberal makeup of the current court, it is possible that its decision in Fischer could be revisited.)

Puerto Rico

Does a still-binding ruling hold that the constitution contain a right to abortion? Yes.

Context: The Puerto Rico Supreme Court has held since 1980 that the right to privacy in Article II, Section 8, of the constitution of Puerto Rico, which has historically had a broad application, provides protections for abortion rights. Lawmakers are still expected to push for new restrictions on abortion.

Rhode Island

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Rhode Island Constitution’s equal protection clause explicitly provides, “Nothing in this section shall be construed to grant or secure any right relating to abortion or the funding thereof.” The Rhode Island Supreme Court held in 2022 that that the state Reproductive Privacy Act is permissible under the state constitution—and that the impact of the state equal protection clause’s restriction doesn’t bar the legislature from recognizing abortion rights by statute.

South Carolina

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The South Carolina Supreme Court has not ruled on whether the state constitution recognizes a right to abortion.

South Dakota

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The South Dakota Supreme Court has not ruled on whether the state constitution recognizes a right to abortion.

Tennessee

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Tennessee Supreme Court ruled in a 2000 case Planned Parenthood of Middle Tennessee v. Sundquist, that the state constitution recognized a right to abortion. But in 2014, state voters added Section 36 to Article I of the constitution, which provided that the state constitution does not recognize a right to abortion.

Texas

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Texas Supreme Court has not ruled on whether the state constitution recognizes a right to abortion. While a 1993 ruling expressed openness to it on the basis of a right to privacy, the court did not affirm this, and it is now strongly conservative. In 2002, the court rejected the argument that the state’s refusal to fund medically necessary abortions violated the Texas Constitution, and its current conservative composition makes it unlikely that the court would revisit this issue.

U.S. Virgin Islands

The U.S Virgin Islands does not have a constitution; it operates under the Revised Organic Act of the Virgin Islands, which can be modified by the U.S. Congress. The Virgin Islands Code permits abortion.

Utah

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Utah Supreme Court has not ruled on whether the state constitution recognizes a right to abortion. 

But a case presently in state courts is seeking to recognize that right; a lower-court judge has temporarily blocked the state’s trigger ban, and the state supreme court may end up weighing on the issue.

Vermont

Does a still-binding ruling hold that the constitution contains a right to abortion? Unclear.

Context: The Vermont Supreme Court has not explicitly ruled on whether the state constitution recognizes a right to abortion. In a 1972 case, the court struck down an abortion restriction as unconstitutional, but did not clarify whether it was relying on the federal or state constitution to do so—and it has not further elaborated on that in subsequent decisions. However, in November 2022, a constitutional amendment establishing an explicit right to abortion will be voted on.

Virginia

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Virginia Supreme Court has not ruled on whether the state constitution recognizes a right to abortion.

Washington

Does a still-binding ruling hold that the constitution contains a right to abortion? Yes, but it’s complicated.

Context: The Washington Supreme Court ruled in the 1975 case State v. Kroome that the state constitution’s implied right to privacy in Article I, Section 3, protects abortion. This decision relied on the holding that the state constitution contained the same level of protections as the federal constitution; in the wake of the U.S. Supreme Court’s decision in Dobbs, then, the status of abortion protections under Washington’s state constitution is unclear.

Following Dobbs, Democratic Governor Jay Inslee has called for a state constitutional amendment explicitly protecting abortion rights. Also, state progressives have been especially successful at tapping into the Washington State constitution’s “untapped potential” for civil rights thanks to a progressive majority.

West Virginia

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The West Virginia Supreme Court of Appeals ruled in 1993 that the state constitution recognized a right to abortion. But in 2018, state voters added Section 57 to Article VI of the constitution, which provided that the state constitution does not recognize a right to abortion; the amendment effectively nullified the 1993 case.

Wisconsin

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Wisconsin Supreme Court has not ruled on whether the state constitution recognizes a right to abortion. 

A case presently in state courts brought by Democratic Governor Tony Evers and Attorney General Josh Kaul is asking for that right to be recognized under the state constitution. The supreme court’s conservative majority is on the line in the 2023 elections.

Washington, D.C.

The District does not have a constitution. It operates under the D.C. Code, which provides broad abortion rights, but Congress has the power to modify the D.C. Code. Congressional Republicans have already indicated their desire to outlaw abortion in D.C., as well as to take away its ability to govern itself.

Wyoming

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Wyoming Supreme Court has not ruled on whether the state constitution recognizes a right to abortion.

The post What All State Constitutions Say About Abortion, and Why It Matters appeared first on Bolts.

Washington State is now presenting a blueprint for how progressives can shield themselves and even amp up civil rights protections beyond what federal courts are willing to extend.

Its state Supreme Court last week issued a landmark ruling that bars mandatory sentences of life without parole for anyone under the age of 21. This decision is a judicial milestone in moving past the cutoff age of 18 that the U.S. Supreme Court established in its federal rulings. 

That decision came on the heels of another sweeping ruling, issued two weeks earlier, that struck down the state’s statutes criminalizing drug possession. The wide scope of the drug possession decision stunned even reform advocates who hoped for a favorable ruling. It has made drug possession effectively legal in the state, retroactively; the ruling is now forcing state and local officials to cease arrests, drop ongoing cases, and vacate old convictions.

For people who are wary of the federal judiciary’s rightward turn, these decisions may signal a path forward.

The Washington Supreme Court grounded its two new rulings in part on the state constitution’s due process clause and on its ban on “cruel punishments.” Federal courts tend to not review such interpretations, showing off what advocates have to gain by pursuing claims in state courts and strategizing on how to win there. 

The decisions also crystalize the stakes of who sits on state benches, even if the scrutiny around the selection of these judges pales in comparison to federal battles.

“It is hard to miss what I call the Trumpification of federal courts,” said Daniel Greenfield, an attorney at the MacArthur Justice Center. “Increasingly, there’s a feeling among civil rights litigators and other lawyers and organizations interested in challenging the criminal legal system that the focus has been on federal courts for too long, and that there’s another potent tool that ought to at least be tried. That doesn’t mean that important gains can’t be made in federal courts, … but there are these 50 other court systems, all of which have a duty to vindicate the rights of their citizens.” 

Some of these courts have “untapped potential” for civil rights litigation, he added. These judges shape the landscape on voting rights, criminal justice, labor rights, and more.

On Washington’s highest court, at least, a progressive bloc may now be consolidating. This shifting balance of power is clarifying that this is not just a matter of which party has more judges. On this liberal-leaning court, distinctions are emerging based on how broadly judges are interpreting rights and how willing they are to rock the boat when faced with violations.

Both decisions came in narrow 5-4 rulings that broke along the same lines. In each case, the controlling side was made up of the five most recent justices to join the court. Two of them were appointed just last year by Governor Jay Inslee—appointments that at the time raised the possibility that the court may swing toward bolder outcomes on criminal justice cases. They then won elections in November and clinched the majorities in these two 2021 rulings.

“This last year has been pretty extraordinary, and it’s heartening,” said Mary Kay High, a public defender who is chief deputy in Pierce County’s Department of Assigned Counsel. “Those are elected judges, and I applaud the courage of putting their names on a decision that may be controversial,” she added, pointing to law enforcement’s mobilization against the rulings.

—

The Washington Supreme Court is not new to the business of overturning sentencing statutes. In the fall of 2018, it struck down the death penalty and barred all life without parole sentences for youth under 18. But with those rulings, the court was playing catch-up to standards set in other states. It made Washington the 20th state to abolish capital punishment and the 21st to end juvenile life without parole.

The rulings issued over the last month, by contrast, showed off a newfound willingness to forge ahead and set benchmarks for the rest of the country. 

The court’s evolution, fueled by the arrival of the two new justices, is evident compared to what happened almost exactly one year ago. In January 2020, a justice who had dissented in the 2018 case ending juvenile life without parole retired and was replaced with Raquel Montoya-Lewis. Even with that switch, the votes were still not there for those justices looking for a bolder path. In March, as the pandemic was spreading, all nine justices agreed that law enforcement should reduce unnecessary arrests to shield people from COVID-19 in jails, but they split 5-4 on how much to restrict arrests. The majority, which included judges who were part of the 2018 rulings, took a narrower approach. But now they faced a minority—made-up of Montoya-Lewis, Steven González, Sheryl Gordon McLoud, and Mary Yu—that was urging them to go even further.

Within weeks, the court’s membership changed again. Charles Wiggins, one of the five justices in the majority in that COVID-19 ruling, retired. Inslee replaced him with Helen Whitener, whose arrival flipped the balance between the two camps exposed by that pandemic decision. 

In both of the court’s new rulings on life without parole and drugs, the majority consisted of Whitener plus the four justices who argued that last year’s COVID-19 ruling was too timid. 

First, on Feb. 25, this five-member majority struck down the statute that criminalized drug possession. “Our state constitution’s due process clause provides even greater protection of individual rights [than the federal clause] in certain circumstances,” the court wrote.

State lawmakers are now considering whether, and how, to replace the overturned statute. Some have proposed criminalizing drug possession again, but reform advocates want the state to reckon instead with the failures of the war on drugs. Just four months ago, a ballot initiative made neighboring Oregon the first state to decriminalize drug possession. 

This decision was made on narrow grounds in that the court did not take issue with the broad aim of punishing drug possession. It took issue instead with a rare feature of state law: Washington convicted people without having to prove that they were aware they had drugs. 

But the problem’s specificity only underscores the boldness of the court’s choice to issue a sweeping remedy and overturn the statute in its entirety, which voided thousands of convictions. Courts, much like lawmakers, are often sensitive to arguments that it is just not practical to repair rights violations and that bringing finality to cases justifies ignoring the past, so they refuse to make changes retroactive. But not this time.

Reform advocates are delighted that the majority was undaunted by concerns that it would be too much of a burden to ask the state’s legal system to fix the unjust harm it has caused. 

“While it may strike some lawmakers and law enforcement as burdensome, it is only the beginning of what is required to deliver true justice to our communities,” said Kendrick Washington II, the youth policy counsel at the ACLU of Washington 

High echoed this assessment. “Do we really think that workload should outweigh a constitutional protection?” she asked.

The life without parole ruling, issued on March 11, will similarly force the state to confront the past and review existing sentences. 

Up to 26 people who are now incarcerated will be eligible for resentencing hearings, according to the Associated Press. Under the ruling, judges can still sentence people ages 18 to 21 to life without parole, but they need to consider factors specific to the individual, and they will have the option to offer another sentence in murder cases where that option did not previously exist. 

Advocates nationwide have been making the case for broadening youth justice by pointing to studies that show people undergo major cognitive development well into their 20s. 

“Washington State’s decision is important in that it ensures that there is consideration of youth,” said Heather Renwick, legal director of the Campaign for the Fair Sentencing of Youth. It recognizes that “nobody on their 18th birthday miraculously wakes up an adult” and “that all young people are capable of positive growth and change.” But, she added, “because it still leaves life without parole as an available sentencing option, there is room for the Washington legislature to take the next step and say that no young person should be sentenced to life without parole.” 

According to Renwick, the March 11 ruling is the first state court decision to extend the federal Supreme Court’s ban on mandatory life without parole for minors to youth beyond the age of 18. That said, some legislatures like in California and Washington, D.C. are increasingly taking even stronger steps in this arena. Just last month, a bill that would have barred life without parole for anyone under 25 passed in South Dakota’s  GOP-controlled Senate, though it eventually died. 

“I suspect that this decision reflects what is to come,” said Renwick, “and I think that it is going to be a combination of state constitutional analysis and state legislatures really thinking about what is age appropriate accountability for young people in their state.”

—

The new dividing lines between Washington justices could pave the way for more transformative decisions. And it has observers asking what has fueled the court’s shift. 

When Whitener was appointed last year, High told the Political Report that her background as a defense lawyer was “not the typical path to the bench.” (Gordon McCloud, who wrote the lead opinions in the new life without parole  and drug cases, has worked as a criminal defense lawyer as well.) Whitener, a former prosecutor and trial court judge, has also worked as a public defender, which remains relatively rare for judges. A Political Report analysis in October found that California’s Supreme Court includes three former prosecutors, but that no state justice since the 1980s has been a public defender. Federal appointments have long followed similar patterns.

But California notwithstanding, a new attitude may be spreading to some governors. This week, for his second appointment to the New Jersey Supreme Court, Governor Phil Murphy announced that he had chosen a civil rights attorney and former ACLU of New Jersey staffer, Rachel Wainer Apter. Washington’s justices could also be a model for presidential appointments amid a push to rework who makes the bench. Locally, activism around the power of local judges is growing.

Greenfield warns that until now conservatives have been generally more proactive about organizing state courts.

In recent years, Arizona Republicans expanded the size of the state Supreme Court to drive it to the right; Georgia’s GOP governor maneuvered to cancel multiple judicial elections on the 2020 ballot; and Montana and Pennsylvania Republicans are plotting to overhaul electoral rules and set up gerrymandered judicial maps in hope of grabbing control of the judicial branch.

In addition, it remains challenging for advocates or candidates to explain the stakes of these  appointments and elections—especially in places, such as Washington, where these shifts are about ideological nuances that partisan identification alone cannot manifest. Making elections for local judge salient can be even more difficult despite their vast powers on matters such as bail.

Greenfield, whose litigation focuses on prison conditions, insists that far more can be done to advance civil rights by leveraging the power of state courts. “There’s no reason why, say, Washington can’t afford its citizens greater liberties than is the minimum required by the federal Bill of Rights,” he said. 

And he added that changes in one state can build into a national wave that ends up bigger than the sum of its parts. “If a majority of state courts ultimately hold that, say, prolonged solitary confinement is unconstitutional,” he said, “federal courts would likely take notice of that.”

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