Not only is there an unequivocally stronger textual argument for LGBTQ+ rights under state constitutions, but in many states, the state judiciaries may be friendlier, too, advises yeargain.
Third, a handful of states contain what are colloquially known as “healthcare freedom” amendments.were adopted in several conservative states in the years immediately following the passage of the Affordable Care Act, designed to protect individual rights to healthcare “from undue governmental infringement.” In the abortion rights context, litigants in Ohio and Wyoming have relied on these provisions to challenge their states’ abortion bans.
But the “freedom” of a person “to provide for their health care,” as recognized by the Alabama, Arizona, Ohio, and Oklahoma Constitutions, or the “right” of each person “to make his or her own health care decisions,” as recognized by the Wyoming Constitution, is clearly applicable in the context of state bans on gender-affirming care. Admittedly, the language of these provisions is keyed to Obamacare-specific contexts.
Not only is there an unequivocally stronger textual argument for LGBTQ+ rights under state constitutions, but in many states, the state judiciaries may be friendlier, too. So far this year, otherwise conservative state supreme courts in Indiana, North Dakota, Oklahoma, and South Carolina have recognized some right to abortion under their state constitutions.
For the time being, the focus of LGBTQ+ rights advocates on federal constitutional claims may make sense—after all, they keep winning. But regardless of what the U.S. Supreme Court does when it considers one of these cases, litigation is likely to continue for the foreseeable future.
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