Strengthening Constitutional Self-Government

Publications

The States and Abortion

Editorial

January 2009

by David Forte

Paul Benjamin Linton, Abortion Under State Constitutions: A State-by-State Analysis, Carolina Academic Press, 2008, ISBN 978-1-59460-604-5

Paul Benjamin Linton is a practicing lawyer of academic mien. In a remarkable tour de force of research and exposition, Linton has produced a book in which he analyzes every state’s legal and constitutional posture on abortion. He has provided the definitive answer to the oft-asked question, what happens if Roe v. Wade (1973) and Planned Parenthood v. Casey (1992) are overruled? The breadth and depth of his effort is arresting. To produce this book, Linton not only had to master and understand state regulations now permitted or forbidden under United States Supreme Court precedents, but to study the text and meaning of every possible clause in every state constitution that might bear on the issue, every relevant state judicial decision interpreting its constitution, as well as every state’s laws—literally hundreds of them—dealing with abortion. He does all of this with concise clarity, resulting in a reference work of inestimable utility.

His lawyerly economy of language begins in his introduction, in which a few textual footnotes gives the reader a thorough and clear summary of the Supreme Court decisions dealing with state regulations of abortion. Then, in his initial chapter, Linton pauses to explicate the theory of federal-state constitutional relationships.

A state court may logically adopt one of two approaches to interpreting a state constitutional provision in relation to the federal Constitution. The court may decide, in light of the intent of the drafters of the provision, or as it has been previously interpreted under state precedent, that the provision is on all fours with the parallel provision in the federal Constitution. The right asserted in the state constitution—equal protection or due process, for example—is coterminous, neither more nor less, with the parallel provision in the United States Constitution. The problem with such a “lockstep” approach, however, arises when the United States Supreme Court changes the legal import of a federal constitutional right. Does the parallel state constitution provision become automatically adapted to the new federal guarantee, or does it retain its previous content? Linton points out, however, that this dilemma is only theoretical in relation to abortion, because “[n]ot one of the state supreme courts that have recognized a state constitutional right to abortion…has applied lockstep analysis.”

The second—and ultimately more principled—approach is for a state court to interpret its constitution as having a content independent of the federal Constitution. The asserted right might be less protected than the right under the federal Constitution (in which case the Supremacy Clause makes the federal guarantee binding on the state court), it may be (coincidentally) the same as the federal guarantee, or it may afford greater protection than the federal provision (thus giving the state citizen more rights than granted by the federal Constitution). In each alternative, the state constitutional provision remains independently discernible from the federal. Thus, the task of the legal researcher is to determine what the content of the relevant state provisions are, and what they would mean, if the federal interpositions of Roe and Casey were removed.

Linton, citing the work of Earl M. Maltz, criticizes a third theory of state-federal constitutional relationship that is an amalgam of the “lockstep” notion and the “independent state constitutional grounds” principle. That theory suggests that, as a matter of state constitutional law, a federal guarantee provides a “floor” of protection for the individual, but that a state constitutional guarantee can give more protection, a “ceiling” to the alleged immunity. Such a theory counsels a state judge to be half a judge. He may not find that a state provision allows for lesser protection than the federal (though unenforceable because of the Supremacy Clause), but he may find a greater protection in the state provision than the federal. Such a judge abdicates his role as a constitutional interpreter and allows for federal interpretation of the federal Constitution to determine the actual content of the state constitution. Though accepted in many academic writings, such an approach distorts both the structural and historical bases of our polity based on the idea of mixed sovereignty.

The bulk of the book is, of course, a survey of each state’s constitution and laws regarding abortion. Linton goes further, however, than clear reportage. He not only describes the legal and constitutional landscape of each state, but assays a prediction whether, as a matter of a state’s own constitution and precedents, a right to an abortion, limited or unlimited, would be recognized if Roe and Casey were to pass into history.

Linton declares that nearly one quarter of the states now recognize a right to an abortion independent of federal constitutional law. For example, he concludes that under New York precedents, the state “could not prohibit abortions, at least before viability.” Further, he finds “doubtful” whether the State may even “regulate abortion within current federal constitutional limits.”

Ohio is a more interesting example. Ohio has one of the most active legislative records in seeking to and oftimes succeeding in protecting the interests of the unborn child under state law. The state bans wrongful birth and wrongful life actions, but permits a wrongful death action on behalf on an unborn child viable at the time of death. Life sustaining treatment may not be denied to a pregnant woman even by a living will. Other protections are found in the criminal law, property law, and the law of intestacy.

Linton does not believe that, under Ohio’s constitution and precedents, a right to an abortion would be independently recognized. The record here, however, is more ambiguous. In Preterm Cleveland v. Voinovich (1993), an Ohio Court of Appeals interpreted the “liberty” provision of Art. I, §1 of the Ohio constitution. That section reads: “§1 All men are, by nature, free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and seeking and obtaining happiness and safety”

The Court of Appeals declared unequivocally that Art. I, §1 of the Ohio constitution guarantees “the choice of a woman whether to bear a child,” including “the right to a woman to have an abortion.” The court held that the right was not broader than the federal right elucidated in Roe and Casey. Linton believes that a later Ohio supreme court case declaring that the protections of the constitution’s Art. I, §1 were merely precatory and not independently enforceable by the courts without enabling legislation by the General Assembly, would overrule Preterm Cleveland. Knowing how Ohio courts often work, this observer is not so sanguine.

As thorough as this work is, there remain two lacunae which, if filled, would have been of significant help to the reader. The first would have been to include an addendum of the text each state’s relevant constitutional provisions that bear on the subject. The second, and more serious problem, is the lack of any index. An index should have been provided by the author or publisher to allow the reader to cross-reference like provisions and subjects across the various states.

Lastly, a word about future prospects. The book does not answer the current political question: what happens to the many now legally permitted protections for the unborn under state law if a federal Freedom of Choice Act is passed and President Obama fulfills his promise to sign such legislation? Will parental notification and permission laws be pre-empted? What will happen to those laws that criminalize assaults against an unborn child outside of a mother’s voluntary decision to abort? Will a Freedom of Choice Act repeal the federal laws that protect children born alive after a failed abortion and that prohibit partial birth abortions and, if so, would the new federal law thereby void similar state laws? Certainly with the very radical pro-choice Dawn Johnsen as the head of the Justice Department’s Office of Legal Counsel, the pressure for such a law will be significant. The answer to that question, of course, depends on what the text of a Freedom of Choice Act, if passed and signed into law, actually says.

Such a prospect does not diminish the relevance of Linton’s effort. Linton’s book focuses on state constitutional limits, if any, on what states could do to regulate abortion if and when Roe and Casey are overruled. That will always remain relevant, for federal laws can, themselves, always be repealed.

David Forte is an adjunct fellow of the Ashbrook Center and a Professor of Law at Cleveland-Marshall College of Law in Cleveland, Ohio. He is Senior Visiting Scholar at the Center on Religion and the Constitution at the Witherspoon Institute.