Republican lawmakers in a handful of conservative states have stumbled on a roadblock to what they thought would be a clear path to setting new restrictions on abortion if the Supreme Court upends the landmark Roe v. Wade decision: right-to-privacy protections enshrined in their own state constitutions.
In states where courts have ruled that their constitutions’ explicit privacy rights extend to the right of a woman to have an abortion, the procedure would continue to be legal even if the Supreme Court’s 1973 ruling is overturned, legal scholars and abortion rights advocates said.
In Montana, the issue is playing out in the courts, where a state judge temporarily blocked three new anti-abortion laws. The state’s Republican attorney general appealed to the state Supreme Court, asking the justices to overturn a 23-year-old ruling that extended the state’s constitutional right to privacy to the right to have an abortion.
