This research article was authored by Dawn Johnsen, Walter W. Foskett Professor of Law, Indiana University Maurer School of Law, commissioned by the Piper Fund. A version of it was published in the Columbia Journal of Gender and Law.
The courts of the fifty states possess broad authority to safeguard or diminish reproductive autonomy and, as a consequence, the status of health care, reproductive justice, and the well being of women, children, and families in their jurisdictions. Now, more than forty years after Roe vs. Wade and almost fifty years after Griswold v. Connecticut, state courts are as important as at any time since those landmark decisions. In this article, the author surveys the role of state courts in light of increased challenges to both their independence and women’s reproductive rights. Overlapping factors, such as a heightened threat to the availability of legal abortion services, and an increase in efforts to populate state courts with judges opposed to reproductive rights converge to create special urgency for attention to state courts.
The paper first generally describes the role of the state courts relative to the federal courts on these issues. The next section discusses the interactions of state and federal courts in more detail, delving into specific cases to illustrate this concept. Johnsen then details strategies to re-criminalizing abortion by seeking the creation of separate legal rights for fertilized eggs, embryos, and fetuses in as many contexts as possible, under state and federal law. There are numerous examples that illustrate the diversity of contexts in which state courts may confront the assertion of rights of embryos or fetuses against pregnant (or previously pregnant) women who carried them.
Finally, the paper discusses conclusions and recommendations in order to advance reproductive justice for all, implying that the strategies must be multi-pronged to “educate, legislate, and litigate.” Johnsen also concludes with four recommendations for encouraging state courts to play their full independent role in the protection of women’s reproductive rights, which include furthering reforms that seek to de-politicize the state courts.