The Supreme Court’s decision to grant certiorari in Dobbs v. Jackson Women’s Health Organization has generated a great deal of discussion. Rightly so, as the case could allow states to protect life at fifteen weeks’ gestation—or perhaps as early as conception—free from federal interference. But much of the Dobbs discussion presumes that a favorable ruling would allow state legislatures to protect life without any interference at all from the judicial branch of government.
Sadly, this is far from the truth. The mission of abolishing abortion in America one state at a time will be more complex than that.
While a favorable ruling from the Supreme Court in Dobbs would bind all federal courts applying the federal Constitution, it would not bind state courts applying their state constitutions. Consequently, after Dobbs, some pro-life states will try to enact additional protections for the most vulnerable among us, only to find their hands tied once again by state courts doing exactly what the US Supreme Court did in Roe: ruling that the state constitution protects the right to abortion for any variety of absurd, progressive consequentialist reasons.
Pro-life leaders in Kansas are already well aware of this. The tragedy they’ve encountered demonstrates that, to fully capitalize on our opportunity in Dobbs, state legislatures must act now to 1) abolish or reform the Missouri Plan’s role in their judicial nominations and 2) amend their state constitutions to explicitly clarify that they do not contain a right to abortion.
What Happened in Kansas
Hodes & Nauser v. Schmidt concerned a Kansas law that banned dilation & evacuation abortions, a violent practice primarily used in the second trimester. The law was challenged in state court, and in 2019, the Kansas Supreme Court ruled that the state constitution contained a right to abortion, despite the fact that this alleged “right” is just as absent from the Kansas Constitution as it is from the US Constitution. Further, in the court’s six-to-one ruling, a majority of the Republican appointees sided with the Democratic appointees.
The Schmidt majority’s decision was rooted in Section 1 of the Kansas Bill of Rights, which reads, in full: “Equal rights. All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.” Through an act of mental gymnastics worthy of an Olympic medal, the Kansas Supreme Court twisted that language, managing to conclude that
Section 1 of the Kansas Constitution Bill of Rights affords protection of the right of personal autonomy, which includes the ability to control one’s own body, to assert bodily integrity, and to exercise self-determination. This right allows a woman to make her own decisions regarding her body, health, family formation, and family life—decisions that can include whether to continue a pregnancy.
Consequently, Kansas will be largely or entirely unable to benefit from a favorable ruling in Dobbs unless and until Kansas has the votes to amend its state constitution to nullify the holding in Schmidt. That could take decades.
This case highlights that even if Roe v. Wade and Planned Parenthood v. Casey are rolled back or overturned, the conservative legal movement will face a greater problem than originalist justices who sometimes decline to take important cases. Rather, the issue will be the inability of states to appoint originalist judges in the first place due to a common system for state judicial appointments known as the “Missouri Plan.”
The Cause of the Kansas Catastrophe
In 1940, Missouri amended its state constitution and created a new system for judicial appointments. To this day, Article V Section 25(d) of the Missouri Constitution requires all judicial nominees to be approved by a “non-partisan judicial commission.” Missouri later determined that the state bar association would be tasked with this role. Because Missouri was the first state to adopt this appointment model, it is often referred to as the “Missouri Plan.” Twenty-two states and the District of Columbia use some form of the Missouri Plan for judicial appointments.
Ostensibly, the Missouri Plan may sound like a good policy to prevent bias and partisanship from corrupting the judicial branch of government. Indeed, it is praised by some as the “gold standard” for judicial appointments. In practice, however, it has become an increasingly terrible method for appointing judges. That’s because the American Bar Association (ABA) (as well as similar organizations sometimes involved in choosing the potential nominees) has become gravely partisan in favor of left-wing secular causes. For example, in 1989, the ABA adopted an official resolution supporting a woman’s “constitutional” right to abortion. Other examples abound.
This is how we got Kansas’s pro-abortion disgrace of Schmidt. In many states, including Kansas, it can be dicey if not impossible for a pro-life governor to nominate originalist judges. Consequently, pro-life governors have had to nominate judges who sometimes act as progressive legislators. Pro-abortion influence on the state judicial commission ties their hands. Under Kansas’s form of the Missouri Plan, a majority of the state judicial commission is controlled by the state bar.
Action Steps for Reform
Shortly after the Schmidt decision, Louisiana recognized this threat. Within two months, the Louisiana Senate passed a state constitutional amendment clarifying that the Louisiana Constitution contains no right to abortion. That amendment was ratified into the state constitution by the voters last November. Now, state judges will rightly be unable to “find” a right to abortion in the state constitution. Notably, this crucial move helped Louisiana jump to the number one spot in Americans United for Life’s state pro-life policy rankings the following year.
Ratifying these pro-life amendments has a separate benefit from getting rid of the Missouri Plan because it has an immediate positive impact. Revoking the Missouri Plan does not address the problem of non-originalist judges who are on the bench right now, but it does help prevent such judges from being nominated in the future. Therefore, states with strong pro-life majorities in the legislature should aim both to discard the Missouri Plan from their state constitution and to enact an amendment like Louisiana’s.
States without the votes to amend the constitution may have other options. With a simple majority in the legislature, several states could limit the harms of the Missouri Plan by passing laws that change the composition of the state judicial commission so that pro-abortion organizations like the state bar have less influence. Arizona passed such a measure in 1992, reforming the judicial selection process for some (but not all) state courts. In fact, because amending the Arizona Constitution only requires a simple legislative majority and a simple majority on a ballot proposition, Arizona was able to put this measure into the state constitution. States with a more challenging constitutional amendment process could pursue the same policy end through a simple bill as well. It would just be a bit easier for the policy to be revoked in the future.
In identifying target states for these reforms, we shouldn’t fall into the trap of thinking political party affiliation tells us everything about officials’ policy views. Even some governors, such as pro-life Democrat John Bel Edwards of Louisiana and pro-choice Republican Christopher Sununu of New Hampshire, buck the national trends. Still, for the issue of abortion, identifying Republican trifecta states is a good place to start.
Of the twenty-two states that use a version of the Missouri Plan, seven have a Republican trifecta with a two-thirds supermajority in both houses: Indiana, Missouri, Oklahoma, South Dakota, Tennessee, Utah, and Wyoming. An additional four states have a Republican trifecta with a simple majority in the legislature: Arizona, Florida, Iowa, and Nebraska.
Pro-life elected officials in all eleven of these states should quickly start pursuing one of the two routes to mitigate the harms of the Missouri Plan before Dobbs is decided. This way, if the Dobbs ruling is favorable for life, these states could roll out new pro-life policy much more easily next year. Also, for states whose best option is tweaking the composition of their Missouri Plan system, that could probably be done more quietly now than in the immediate aftermath of Dobbs, when the motives may be more apparent to pro-abortion activists in corporate America and the media seeking to pressure thin-skinned “pro-life” legislators.
It should also be noted that because these proposed reforms are themselves purely procedural and do not directly prohibit abortion itself, state legislator support is not necessarily limited to pro-life representatives. Democrats who are moderate on abortion as well as pro-choice Republicans can have political cover and be persuaded to sign off on them, citing the coalition-unifying, good-government grounds of stopping progressive activist judges from overriding the will of the state’s voters. It is for similar reasons that pro-choice Republican senator Susan Collins and the (mostly) pro-choice Democratic senator Joe Manchin have provided necessary votes to confirm the textualist and originalist Supreme Court justices who would make up an anti-Roe Dobbs majority.
Meeting the Historical Moment
In the world of pro-life policy, addressing the Missouri Plan may be the best way for us to save the greatest number of lives. Kansas could be waiting for decades to gain the votes needed to amend its constitution and undo Schmidt. We can’t allow the same judicial catastrophe—a catastrophe that could cost thousands of unborn lives per state—to replicate itself in other states.
We are living in the crucial months preceding what could be one of the most important Supreme Court cases ever. The pro-life movement has been waiting three decades for Dobbs. But ironically, to make the most of this Supreme Court opportunity, many of us need to turn our attention away from DC and toward our state capitols, encouraging our state legislators and state policy organizations to take action and do the right thing.