State courts show a path forward for red-state abortion rights

When it comes to reproductive rights, news out of the federal courts is almost always bad. Those courts are stacked with conservative appointees, and even if litigants catch a break in lower courts, they eventually run into the anti-abortion buzzsaw of the U.S. Supreme Court. However, state courts can prove a bright spot, even in red states. 

Last Wednesday, in Planned Parenthood v. Montana, the Montana Supreme Court threw out a law requiring minors to get parental consent for an abortion. The court got there partly because Montana’s state constitution contains two clauses not found in the federal constitution: one giving people under 18 all fundamental rights in the state constitution, and another stating that the right of individual privacy is “essential to the well-being of a free society” and cannot be infringed upon without a compelling state interest. 

Since the federal constitution doesn’t contain an explicit right to privacy, a federal guarantee of that right is more complicated. In 1965’s Griswold v. Connecticut, the Supreme Court found that a right to privacy—specifically the right to use birth control—could be inferred by looking at the protections of the First, Third, Fourth, Fifth, and Ninth amendments together. That lack of an explicit constitutional guarantee is partly why abortion rights have been so fragile in federal courts.