The Road Not Taken: State Constitutions as an Alternative Source of Protection for Reproductive Rights

Lawyers seeking constitutional protection for reproductive rights have relied almost exclusively on a liberty/privacy theory under the Federal Constitution. In the wake of Planned Parenthood of Southeastern Pennsylvania v. Casey, this theory may be seen as providing a floor of minimum protection-preventing states from banning abortion outright. But it is not strong enough to prevent states from enacting restrictions on the availability of abortion. Thus, the battle over reproductive rights may be seen as shifting from one phase ("Can abortion be banned?") to another ("How far can states go in restricting access to abortion'?"). If proponents of reproductive freedom are to have any success in this second phase of abortion litigation, they must look beyond the lone theory that has so long sustained them. They must advance new theories under the Federal Constitution and they must also look to state constitutions.