A Post-Roe World Roadblock: State Constitutions

Conservative lawmakers may find their anti-abortion agendas complicated by state constitutions in a handful of states that explicitly grant citizens the right to privacy, regardless of what the U.S. Supreme Court does reports Nick Ehli on February 17, 2022, for Kaiser Health News and USA Today .

Republican lawmakers have stumbled on a roadblock to what they believed would be a clear path to setting new restrictions on abortion if the Supreme Court of the United States upends the landmark Roe v. Wade , 410 U.S. 113 (1973), decision: right-to-privacy protections enshrined in their own state constitutions.

In states where courts have ruled that their constitutions’ explicit privacy rights extend to the right of a woman to have an abortion, the procedure would continue to be legal even if the Supreme Court’s nearly 50-year precedent is overturned, according to legal scholars and abortion-rights advocates said.

The original Roe ruling was principally based on protecting the right to privacy under the due process clause of the 14th Amendment . But the words "right to privacy" don’t appear in the U.S. Constitution , a position repeatedly raised by abortion opponents.

Those words are, however, written into the constitutions of 11 states , adding an unexpected hurdle to a post-Roe legal landscape.

Constitutions in Alaska, Arizona, California, Florida, Hawaii, Illinois, Louisiana, Montana, New Hampshire, South Carolina, and Washington have specific provisions relating to a right to privacy.

ALASKA, Art. I, § 22 . "The right of the people to privacy is recognized and shall not be infringed. The legislature shall implement this section."

Abortion rights advocates in conservative Alaska assert the constitutional right to privacy will protect a woman’s option there regardless of what the U.S. Supreme Court does. Voters will decide in November 2022 whether to call a constitutional convention. Abortion opponents seek to pass a constitutional amendment which could change the part of the state constitution that the Alaska Supreme Court has relied on to preserve abortion rights.

ARIZONA, Art. II, § 8 . "No person shall be disturbed in his private affairs, or his home invaded, without authority of law."

CALIFORNIA, Art. I, § 1 . "All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy."

FLORIDA, Art. I, § 23 . "Right to Privacy, Every natural person has the right to be let alone and free from governmental intrusion into the person's private life except as otherwise provided herein. This section shall not be construed to limit the public's right of access to public records and meetings as provided by law."

In 1989, the Florida Supreme Court found that this provision protects the right to an abortion.

HAWAII, Art. I, §§ 6 and 7

Section 6: "Right to Privacy. The right of the people to privacy is recognized and shall not be infringed without the showing of a compelling state interest. The legislature shall take affirmative steps to implement this right."

Section 7: Searches, Seizures, and Invasion of Privacy. "The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches, seizures and invasions of privacy shall not be violated; and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized or the communications sought to be intercepted. [Am Const Con 1968 and election Nov 5, 1968; ren and am Const Con 1978 and election Nov 7, 1978]"

ILLINOIS, Art. I, § 6 . Searches, Seizures, Privacy and Interceptions. "The people shall have the right to be secure in their persons, houses, papers and other possessions against unreasonable searches, seizures, invasions of privacy or interceptions of communications by eavesdropping devices or other means. No warrant shall issue without probable cause, supported by affidavit particularly describing the place to be searched and the persons or things to be seized."

LOUISIANA, Art. I, § 5 . "Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy. No warrant shall issue without probable cause supported by oath or affirmation, and particularly describing the place to be searched, the persons or things to be seized, and the lawful purpose or reason for the search. Any person adversely affected by a search or seizure conducted in violation of this Section shall have standing to raise its illegality in the appropriate court."

While The Bayou State’s constitution protects citizens against "invasions of privacy" voters passed a constitutional amendment in 2020, inserting that "nothing in this constitution shall be construed to secure or protect a right to abortion or require the funding of abortion."

MONTANA, Art. II, § 10 . "The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest."

In a 1999 case that is essentially Montana’s Roe v. Wade, the Montana Supreme Court ruled that state constitutional language incorporates the right of citizens to make their own medical decisions. Arguably, this right protects a woman’s right to procreative autonomy and her ability to seek and obtain a lawful medical procedure, which abortions were and are, free from interference from the government.

NEW HAMPSHIRE, Art. 2-b . "Right to Privacy. An individual's right to live free from governmental intrusion in private or personal information is natural, essential, and inherent."

New Hampshire's provision was approved as a privacy ballot measure in November 2018.

SOUTH CAROLINA, Art. I, § 10 . "The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures and unreasonable invasions of privacy shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, the person or thing to be seized, and the information to be obtained."

WASHINGTON, Art. I, § 7 . "Invasion of Private Affairs or Home Prohibited. No person shall be disturbed in his private affairs, or his home invaded, without authority of law."