Plus: Sanctuary policies and how state constitutions ended dueling


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Last month, an Ohio appellate court struck down

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portions of a state ban on gender-affirming care for transgender minors. The court ruled that Ohio’s prohibitions on hormone therapy and puberty-blocking medications violated the state constitution.

The case, Moe v. Yost

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, isn’t over — the state attorney general has filed

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an appeal to the Ohio Supreme Court — but the opinion is well worth a read. Most striking to me was how the court relied in part on Ohio’s “health-care freedom amendment,” a 2011 ballot initiative that was part of a conservative-led effort to limit the effect of the Affordable Care Act. Significantly, the amendment bars the state from prohibiting “the purchase or sale of health care or health insurance.”

State constitutions are full of provisions that don’t appear in the U.S. Constitution. They’re also relatively easy to amend

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, which means that the texts of state constitutions often tell a story of political and social movements over time. That’s certainly the case with health-care freedom amendments, which appear in six state constitutions (including Ohio’s), as State Court Report contributor Julia Livingston has explained

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Proponents of these provisions were animated by opposition to federal mandates related to health insurance, but the constitutional rights they established also prioritize personal medical decision-making as a right. At the time, these amendments were largely a messaging tool to mobilize the public against the Affordable Care Act. While they didn’t have much legal traction at the time they were enacted, they could have big implications today for some of the most high-profile issues landing in state court.

With respect to gender-affirming care, the Ohio court concluded that the freedom to choose health care must mean more than just “the right to receive health care subject to the policy preferences of the General Assembly.” Rather, the amendment establishes a right to choose to receive health care when it “follows the widely accepted guidelines and treatment protocols of the professional medical community in the United States.” The kind of categorical ban at issue in Ohio violates that right, the court explained, because it completely bars treatments by qualified medical providers that are widely accepted by the professional medical community.

Health-care freedom amendments have also been cropping up in the reproductive health-care arena. Last year, a Wyoming trial court relied on the state constitution’s “right of health care” to block

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the state’s abortion ban. Concluding that the Wyoming Constitution establishes a fundamental right to make health-care decisions and that abortion services are a form of health care, the court held that Wyoming’s ban was an “unreasonable and unnecessary restriction[] on the right of pregnant women to make their own health-care decisions.” On April 16, the Wyoming Supreme Court will hear

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arguments in an appeal of that ruling.

State courts have turned to other state constitutional provisions to establish health-care freedom rights as well, using analysis that can be applicable to both transgender health care and abortion rights. In a recent piece, Amy Myrick and Alexander Wilson of the Center for Reproductive Rights discuss

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recent Montana Supreme Court rulings that rely on a provision in the state constitution providing for the “right of individual privacy.” In the context of abortion rights, the Montana court has long held that the right to privacy encompasses the “right to make medical judgments affecting her or his bodily integrity and health in partnership with a chosen health care provider free from governmental interference.” In December, the court applied these principles to uphold

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a preliminary injunction blocking a state ban on gender-affirming care for minors.

It’s an important lesson, Myrick and Wilson argue, that “the same constitutional protections for personal autonomy and bodily integrity apply to diverse decisions that people make about their bodies, health, and lives.”





Sanctuary Policies in a Federalist System

Sanctuary policies like those resisting enforcement of federal immigration and gun laws have flaws and limitations, writes George Mason University professor Ilya Somin, but they also have strong constitutional grounding, promote diversity, and help protect against authoritarianism. Read more

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North Carolina Court Decision Could Overturn a State Supreme Court Election

Last week’s decision by a North Carolina appeals court panel allows for rewriting election rules after the votes were counted and moves the losing candidate closer to his goal of having more than 60,000 ballots thrown out, writes Justin Lam, part of the Brennan Center team that filed an amicus brief in the ongoing litigation over the state supreme court seat. Read more

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North Carolina’s Constitution of Contrasts

As part of our 50-state series

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, Campbell University law professor Marcus Gadson discusses the North Carolina Constitution’s fraught history with race and how it is “a distinctly 19th and even 18th-century document despite being adopted in the 20th century.” Read more

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The Complexity of Lockstepping Post-Bruen

Duke Center for Firearms Law Executive Director Andrew Willinger explains how a Kansas appeals court refused to invoke originalism principles, finding that differences between Kansas’s right-to-arms provision and the U.S. Second Amendment cut against following federal precedent in interpreting the Kansas law. Read more

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The History of Dueling and State Constitutions

Alexander Hamilton’s deadly duel is the country’s most famous, but dueling has a deep history in the United States. Perhaps surprisingly, state constitutions were integral in ending the practice, writes former Brennan Center intern Sasha Jones. Read more

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What Else We’re Reading

Our roundup of noteworthy state supreme court oral arguments in April

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, by State Court Report adviser Sarah Kessler and Brennan Center writer and editor Erin Geiger Smith, includes disputes over New York City emissions caps, same-sex couples’ parental rights in Ohio, a historic minority community’s referendum power in Georgia, and more.





You May Have Missed

A New York county clerk refused

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Texas’s motion seeking to enforce a $113,000 default judgment against a New York–based doctor sued by the Texas attorney general for prescribing abortion-inducing drugs to a Texas woman. State Court Report wrote about the case

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and choice-of-law

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issues in this era of abortion bans.

Following a Maine trial court ruling

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criticizing the state’s continued failure to provide counsel for indigent defendants and saying that defendants could be released pretrial or have their charges dismissed if counsel is not provided under certain timelines, the state’s public defense service filed a plan

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to address the problem.

A Montana district court temporarily blocked an anti-transgender law requiring

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people to use public bathrooms that align with their sex assigned at birth.





Notable Cases

People v. Poole

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, Michigan Supreme Court

Held, unanimously, that the court’s 2022 ruling that mandatory life-without-parole sentences for 18-year-olds is “cruel or unusual” and in violation of the state constitution applies retroactively, entitling defendants to resentencing when the period for direct review of their cases had expired by the time of the 2022 decision. // CBS News

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Smith v. BlueCross BlueShield of Tennessee

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, Tennessee Supreme Court

Decided that a private employer firing an employee for exercising her state constitutional right to petition doesn’t trigger an at-will employment exception for terminations that violate public policy because Tennessee’s right to petition constrains only the government. The American Civil Liberties Union had argued

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that the court should interpret the right to petition more expansively. // The Tennessean

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You can find briefs and opinions from notable state constitutional lawsuits in our State Case Database

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.









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