Overview
Abortion under State Constitutions, which has been favorably reviewed by law professors, research librarians and reference librarians, remains the only comprehensive treatment of arguments for and against the recognition of abortion as a state constitutional right. Since the first edition was published in 2008, abortion advocates have filed state constitutional challenges to abortion regulations in Illinois and Oklahoma. And in Alaska, a case challenging a citizen-initiated parental notice law tests the limits of the broad abortion right previously recognized in that State. At the same time, the legislatures of Florida and Tennessee have proposed amendments to their state constitutions which, if approved by the voters, would overturn earlier decisions recognizing a state right to abortion. These developments, along with a number of other factors, warrant a second edition.
In this edition, new materials—court decisions and/or legal commentary—have been incorporated into the discussion of state equal rights amendments, unenumerated rights (or retained rights) provisions and state privacy theory, as well as one of the introductory chapters. Individual state chapters have been edited to include, among other changes, a fuller description of a State's pre-Roe abortion statutes, a State's religion clauses, a State's statement of interests in protecting unborn human life and, in one instance, the sources of a right to abortion recognized by a state supreme court. Where appropriate, the analysis of a given state constitutional provision has been rewritten for greater clarity. Citations have been updated throughout the text and notes and, where necessary, corrected, and topical headings have been changed in some instances to describe more accurately the state constitutional provisions discussed. This edition also includes two new features-an appendix containing the text of every state constitutional provision cited or quoted in the book, as well as a topical index to facilitate cross-references to the same (or similar) provisions in different state constitutions. These features make the second edition even more helpful as a reference work for judges, lawyers, legislators and others interested in the issue of abortion as a state constitutional right.
Synopsis
Whether a state constitution protects a right to abortion is significant for two reasons: First, it may determine whether the State has the authority to enact and enforce laws regulating abortion (e.g., laws mandating informed consent or requiring parental notice or consent) within current federal constitutional limits. Second, and more important, it will determine whether the State would have the authority to enact and enforce laws prohibiting abortion, if the Supreme Court overrules Roe v. Wade and returns the issue of abortion to the States. Abortion under State Constitutions is the first, full-length treatment of the subject to appear in print. For each State, the author considers possible sources of a right to abortion in the state constitution (privacy, due process of law, equality of rights, equal protection, privileges and immunities, as well as other provisions); state court decisions interpreting those provisions; the relevant state constitutional history; pre-Roe prohibitions of abortion and their interpretation by state courts; post-Roe regulations of abortion; and what rights state law has conferred upon unborn children outside the context of abortion. Based upon the foregoing analysis, arranged topically within each State for ease of reference, the author concludes that thirteen state constitutions protect (or would be interpreted to protect) a state right to abortion that is independent of the right to abortion recognized in Roe v. Wade, while the supreme courts of the other thirty-seven States probably would not recognize a state right to abortion. Likely to become a standard reference work on the subject, Abortion under State Constitutions should be of interestnot only to lawyers who litigate state abortion rights claims and judges who decide those cases, but to anyone on either side of the abortion debate who wants to have a better understanding of the status of abortion under state constitutions.