This article was written by Daniel Medwed, University Distinguished Professor of Law and affiliated Professor of Criminology and Criminal Justice Professor.
MANY PEOPLE ACROSS the United States are devastated by the Supreme Court’s decision in Dobbs, which overturned a half century of precedent and abolished the federal constitutional right to abortion. For years, many activists have channeled that despair into fighting for change at the federal level, for instance, by pressing Congress to pass laws that safeguard abortion or alter the size of the Supreme Court.
Frankly, as long as the filibuster remains in place—and as long as Congress remains fairly evenly split between Democrats and Republicans—those battles may prove difficult to win. Federal fights are good and important long-term campaigns but, for the foreseeable future, the battle for reproductive freedom is in the states.
For those concerned about preserving reproductive justice, targeting state-level reform will reap rewards. Federal constitutional law might be seen as a floor under which states may not go; an individual state may not confer fewer protections to its residents than the Supreme Court demands. That’s one reason why Roe v. Wade was so important (and Dobbs is so damaging): That 1973 precedent ensured no state could completely cut off access to abortion. But there’s no ceiling imposed by federal constitutional law, which means states may always grant greater rights, more robust protections, as a matter of their state constitutions than the Supreme Court requires.