Welcome to the latest State Court Report newsletter.

When the U.S. Supreme Court overturned Roe v. Wade last summer, it didn’t say anything about people whose lives or health might be endangered absent an abortion. Some states have taken that as an invitation to put in place near-total bans, prompting challenges under state constitutions.

Last week, the Oklahoma Supreme Court ruled

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5–4 that its state constitution provides a “limited right” to abortion once a doctor determines with “a reasonable degree of medical certainty or probability” that the pregnancy creates life-threatening circumstances. The court relied on Oklahoma’s due process clause as well as a provision recognizing an “inherent right” to life and liberty. The decision struck down a law that required doctors to wait for an imminent life-threatening medical emergency before performing an abortion. As one justice argued in a concurring opinion, just as you don’t need to wait for an appendix to burst before you can operate, a doctor shouldn’t have to wait “until their patient has a seizure, a stroke, experiences multiple organ failure, goes septic, or goes into a coma because of the fear of criminal prosecution.”

Oklahoma’s ruling comes on the heels of a unanimous ruling

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by the North Dakota Supreme Court earlier this month recognizing a fundamental right to an abortion when needed to preserve a pregnant person’s life or health. The North Dakota court based its ruling on a state constitutional provision that identifies “enjoying and defending life and liberty” and “pursuing and obtaining safety” as “inalienable rights.” One concurrence likened abortion under these circumstances to the right to self-defense. Another argued that the drafters of the North Dakota Constitution understood that courts should interpret fundamental rights broadly.

Ultimately, both rulings were narrow but significant, targeting some of the most extreme abortion laws in the country. Each relied heavily on a long history of laws in their state providing medical exceptions to abortion bans. Importantly, neither court resolved whether its state constitution also protects abortion rights in other circumstances, leaving those questions for another day — and likely future litigation.

At the same time, while the Oklahoma and North Dakota decisions bear some similarities, they’re also quite different in scope and practical impact. To begin with, the North Dakota court recognized a broader constitutional right, protecting not just a woman’s life but also her health: to “prevent severe, life altering damage.”

Even more significantly, the North Dakota court upheld a preliminary injunction blocking the state’s abortion ban from being enforced, which means that abortion is currently legal in the state up to 20 weeks post-fertilization. By contrast, while the Oklahoma court struck down one law, it allowed another near-total ban, dating back to 1910, to stay on the books because it has an exception to preserve a woman’s life (not limited to medical emergencies). That means abortion will remain illegal for all but a tiny fraction of Oklahomans.

These rulings follow decisions

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earlier this year in South Carolina, where the high court ruled that the state constitution protects the right to abortion, and Idaho, where the court found no state constitutional right. Oklahoma and North Dakota both sit somewhere in the middle, recognizing a limited set of state constitutional abortion protections while declining, at least for now, to address whether their constitutions protect abortion rights more broadly. With more than two dozen

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state cases currently pending across the country, the national patchwork of post-Dobbs abortion rights is just beginning to take shape.

Wisconsin Bail Amendments on the Ballot

On April 4, two constitutional amendments regarding pretrial release are on the ballot in Wisconsin. Professor Quinn Yeargain from Widener University Commonwealth Law School analyzes these amendments in historical context. Yeargain writes, “These changes, if adopted, are simply the latest in a long line of constitutional amendments that have severely limited — or eliminated altogether — the right to bail.” Read more

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Victims’ Rights Amendments Face Legal Challenges

Since 2008, a dozen states have adopted “Marsy’s Law” constitutional amendments, promoted by proponents as victims’ rights provisions. Walter Olson, a senior fellow at the Cato Institute, discusses pending challenges to these amendments in Wisconsin and Florida. He argues that “advocates and policymakers should be on notice that Marsy’s Law generates outcomes that are hard to defend in principle.” Read more

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Nevada Supreme Court Limits Qualified Immunity

In a recent decision, the Nevada Supreme Court ruled that money damages were available to enforce the Nevada Constitution’s protections against unreasonable search and seizure, and that qualified immunity, a doctrine that often shields government officials from liability, did not apply as a defense. Professor Marcus Gadson from Campbell University writes that this precedent may “channel more civil rights litigation into state court as plaintiffs around the country decide to focus on state constitutional claims and forgo federal claims where they encounter more hurdles.” Read more

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Ohio Justices Reject Chevron Deference

The Ohio Supreme Court recently ruled that state courts need not defer to state agencies on the meaning of statutory text, declining to adopt the federal Chevron deference doctrine. Professor Jonathan Adler of the Case Western Reserve University School of Law writes that “an increasing number of [state courts] are concluding that, at least as far as state law is concerned, mandatory deference to state administrative agencies should not be required.” Read more

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What Else We’re Reading

The Thomas R. Kline School of Law has a great resource on the Pennsylvania Constitution, including a collection of historical documents. Check out the Pennsylvania Constitution website

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California Chief Justice Patricia Guerrero

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and former Ohio Chief Justice Maureen O’Connor

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discuss their paths to the bench and their experiences as trailblazers in the judiciary, as part of USA Today’s Women of the Year series.

Notable Cases

State of Washington v. Zachery Kyle Meredith

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, Washington Supreme Court

Upheld the use of fare enforcement checks on public transit but ruled that a passenger had been illegally detained, violating the state constitution’s protection against unlawful seizure. Read more in the Seattle Times

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State v. Smart,

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New Jersey Supreme Court

Ruled that law enforcement officers cannot conduct warrantless searches of vehicles unless the circumstances leading to the search are “unforeseeable and spontaneous,” finding that the New Jersey Constitution provides stronger protections than the Fourth Amendment with regard to searches and seizures. Read more in the New Jersey Monitor

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In the Matter of the Application of Hawaii Electric Light Company

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, Hawaii Supreme Court

Upheld the Public Utilities Commission’s rejection of an electric company’s proposal for a biomass power plant based in part on the state constitution’s right to a “clean and healthful environment.” Read more in Bloomberg Law

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State of Ohio ex rel. Reynolds v. Kirby

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, Ohio Supreme Court

Held that most juvenile court judges cannot grant witness immunity, because their courts were established by statutes that did not grant them that authority. Read more in Court News Ohio

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