The United States has a constitutionally established federal system in which the Constitution, statutes and treaties are the supreme law of the land, according to Kathryn Abrams, Berkeley Law professor and faculty director of the Center on Reproductive Rights and Justice. State law controls areas the federal law does not operate in.
Professor of political science Sean Gailmard explained the Supreme Court’s power over state law comes from the “supremacy clause,” Article VI of the Constitution. This means if a state law ever conflicts with the Constitution or with federal law, federal courts have the power to deem state law invalid. Moreover, due to judicial precedent, any state law the Supreme Court considers “like” an invalidated one is therefore also nullified.
Gailmard said Supreme Court decisions most impact state policies that contradict federal law or the U.S. Constitution. He said “social policy” cases currently divide liberal and conservative states most sharply; a recent example is the case of reproductive rights.
Abrams explained how abortion used to be under the purview of federal law, as a result of the precedents set by Roe v. Wade and Planned Parenthood v. Casey. In those cases, the Supreme Court ruled that the due process clause in the Constitution protected the federal right to reproductive choice.
However, Abrams said states under conservative leadership didn’t agree with this decision, and began preparing to enact laws that would potentially lead to the overturning of Roe. This took place in 2022 during the Dobbs v. Jackson Women’s Health Organization case, which led to the court ruling that neither the due process clause, nor any other clause in the Constitution, protected the right to abortion. In effect, this turned the decision regarding abortion to state powers.
As a result, Abrams said when it comes to laws regulating access to abortion, there exists a “patchwork of state laws” in the United States. For example, states such as Missouri had a ban ready to go after the Dobbs decision, whereas in Florida legislative bans are currently under dispute.
Many progressive states already had laws in place to protect abortion rights. Californians voted to add abortion rights to the state constitution following the Dobbs decision. Meanwhile, pro-abortion activists in conservative states have been attempting to enact similar changes in their states’ constitutions, of which several passed during the 2022 midterm elections, according to Abrams.
“Supreme court influence on social policy is very strong,” Gailmard said in an email. “Whether it pushes in a conservative or liberal direction depends on the leanings of the court and what it wants to do.”
The Supreme Court’s influence spans greatly over state courts, from its logic to style and reference points. As an example, while deciding the Dobbs case, the Supreme Court turned to the mid-19th century to determine the Constitution’s view of reproductive rights.
Abrams considers this “a dubious exercise because no one on the (Supreme) Court is trained as a historian.” She also believes this decision concerned more the rights of fetuses rather than those of pregnant women.
Although courts don’t necessarily have full control over a policy’s effects, according to Abrams, this nevertheless reflects “the influence of the court’s logic.” Further, Abrams said these aspects of the Supreme Court’s decisions may have influenced states to enact or uphold tighter laws.
On the reverse end, she said the absence of federal reproductive rights may have also pushed progressive states to enact even more protective laws, such as in California.
“Whether court decisions impact liberal-coded or conservative-coded state policies more depends on the political leanings of the court and what it is trying to do,” Gailmard said in the email. “It fluctuates throughout history, sometimes quickly.”
In the future, federal courts, and possibly the Supreme Court, may have to make other decisions regarding abortion rights.
Issues up for debate include determining whether restrictive states that prevent or penalize people who travel to get abortions violate such individuals’ constitutional right to travel — which, according to Abrams, has sometimes received protection under the 14th Amendment.
“When court rulings restrain what states can do, such as Obergefell’s restraint on prohibition of gay marriage, they tend to push states closer together,” Gailmard said. “When court rulings expand what states can do, such as Dobbs, they tend to push states further apart. This is not just because of law, but because of politics: states are increasingly polarized, so enabling states to take different courses is going to result in large differences in what they do.”
