Individual reproductive freedom is constitutionalized in some US states.

When it comes to the preservation of the right to abortion, two jurists named Daniel Borrillo and Thomas Perroud demonstrate in an article

published in “Le Monde” that the legislation in many states in the United States is more protective of the freedoms of both women and men than it is in France.

The decision that was handed down by the Supreme Court of Arizona on April 9 to uphold the prohibition on abortion in this state – with the exception of situations in which the mother’s life is in danger – enables us to take stock of the situation in this country and to draw parallels with the situation in France. In point of fact, France has recently incorporated into its Constitution the provision that states, “the law determines the conditions under which the freedom guaranteed to women to have recourse to a voluntary termination of pregnancy is exercised.”

The breadth of such recognition leaves us asking, given that the usefulness of this right is reliant on the material conditions of its implementation. If we can just rejoice at the raising of a woman’s freedom to stop her pregnancy to a constitutional level, then the scope of such recognition leaves us questioning. The only thing that we can draw from this is that, from this point forward, neither the legislature nor any court will be able to suppress this right. However, the scope of this right will always remain as fragile, unless the courts agree to offer a more clear content. packed with this newly acquired liberty.

In spite of the evident progress that such a constitutional inscription represents, it is not accurate to state that France would be the only country to follow this course of action. After the Dobbs decision, which eliminated federal constitutional protection of the right to abortion, it is extremely usual to picture the United States as a country that has irrevocably gone backwards. The decision that came from Arizona seems to confirm this concept, and it is an argument that has been made quite frequently. It is important to note that this depiction does not do credit to the intricacy of the current situation. This is because the United States of America is currently involved in a fight on a state-by-state basis, which may even result in a more advantageous position than the one that was before prevalent.

Two different approaches are now being pursued in order to constitutionally preserve the right to voluntarily terminate a pregnancy (often known as abortion), in addition to states that place restrictions on the practice of abortion. In certain states, such as Montana, North Dakota, Minnesota, Illinois, Kansas, Florida, Alaska, Massachusetts, New Jersey, and Mississippi, civil society is able to successfully challenge all bans on abortion through the use of litigation. Additionally, in these states, they are able to obtain recognition of the constitutional value of this right.

Jurisprudence is the means by which these states so obtain the constitutionalization of their governments. Nevertheless, prior to France, several states had already taken the initiative to incorporate the right to abortion into their constitutions, and they were successful.

As a result of the catastrophic decision that the United States Supreme Court made in the case of Dobbs v. Jackson Women’s Health Organization, which removed the constitutional right to abortion, the importance of state constitutions and courts has increased to an unprecedented level. Not only do state courts and constitutions provide better and more expansive legal basis for defending abortion rights, but they also guarantee access to abortion in regions of the country that have extremely restricted attitudes about the procedure.

Over the course of several decades, the Center for Reproductive Rights has been representing individuals in state courts in an effort to establish robust abortion rights at the state level that are independent of federal law. In a report titled “State Constitutions and Abortion Rights:

Building protections for reproductive autonomy,” which was published in July 2022, the Center outlined ten states in which the highest courts in those states had either recognized that their state constitutions protect abortion rights and access independently from and more strongly than the United States Constitution, or had struck down restrictions that were upheld by the United States Supreme Court. The report focuses on cases that were launched by the Center in seven different states.

These cases not only led to expanded protections for abortion rights and access, but they have also, in many instances, influenced the decisions of other cases and courts. In addition, the study conducted by the Center takes into consideration the ways in which this body of law can broaden and direct future efforts to protect reproductive rights.

A number of challenges to abortion laws that went into force following the Dobbs decision gave state courts with additional possibilities to safeguard abortion rights are included in the report, which provides a picture of abortion rights in the states prior to the implementation of these challenges.

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