The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Rhode Island Supreme Court Rejects Challenge to Rhode Island's Abortion Rights Statute


From Wednesday's decision of the Rhode Island Supreme Court in Benson v. McKee (opinion by Justice Maureen McKenna Goldberg, joined by Chief Justice Paul Suttell and Justice William Robinson; Justices Erin Lynch Prata and Melissa Long did not participate):

In 2019 the General Assembly enacted the Reproductive Privacy Act (the RPA), effectively granting a right to abortion in line with Roe v. Wade, and repealing certain statutes otherwise prohibiting abortion in this state that were flatly unconstitutional…. [Plaintiffs sued] to challenge the General Assembly's authority to enact the RPA, and also seeking a declaration of their legal rights and status under certain statutes that were repealed by the RPA….

The adult plaintiffs' claims may be summarized as alleged voter suppression and deprivation of the right to vote. The adult plaintiffs argue that they have standing because they are "asserting a plain, direct and adequate interest in maintaining the effectiveness of their votes, … not merely a claim of the right, possessed by every citizen, to require that the Government be administered according to the law." These plaintiffs contend that they specifically pled that "Defendants wrongly 'suppressed' their negative vote against Defendants' passage and signing of the RPA."

Viewing the allegations in their pleadings in the light most favorable to the adult plaintiffs, we are of the opinion that they lack standing to bring this action under any conceivable set of facts. The adult plaintiffs merely assert that they had the right to vote against passage of the RPA and were deprived of that right. However, no member of the public—other than elected legislators—was afforded an opportunity to vote for or against its enactment. We know of no authority to suggest that a general election or referendum was mandated in this instance, nor do the adult plaintiffs provide us with any authority….

The adult plaintiffs do not assert a particular injury that distinguishes them from other voters, save for the purported deprivation of an opportunity to vote against passage of the RPA, which they suggest, with no citation to authority, required voter approval. The adult plaintiffs have not been treated or placed in a different position, because no other registered voters were afforded the right to vote on the passage of the RPA. At best, this is a generalized grievance shared with the public at large, because there was no general election or referendum where anyone cast a vote. Indeed, in their prayer for relief, plaintiffs requested "[a] declaration that Plaintiffs, and all the citizens of Rhode Island, have a right to vote, for or against, the establishment of a new fundamental 'right' to abortion (and the funding thereof) in the State of Rhode Island." The adult plaintiffs therefore acknowledge that their claims are identical to those of the voting public. Accordingly, the trial justice correctly found that the adult plaintiffs lacked standing in this case….

The unborn plaintiffs essentially claim that (when this action commenced) they were "persons" under the UDJA [Uniform Declaratory Judgment Act] because they fall within the language of § 11-3-4 of the [1973] criminal-abortion statute, declaring that "human life commences at the instant of conception and that said human life … is a person …." Additionally, Baby Mary Doe claims that she also falls within the definition of "quick child" under [a 1975 abortion-restrictive statute]. The unborn plaintiffs argue that, when the General Assembly in 2019 repealed these statutes, upon which statutes they base their standing, they were stripped of their legal rights and status and suffered harm. They are mistaken.

The United States Supreme Court in Roe held that "the word 'person,' as used in the Fourteenth Amendment, does not include the unborn." This Court has acknowledged that "state constitutional and statutory law is subordinate to … 'the [United States] Constitution[.]'" Accordingly, the unborn plaintiffs fail to assert a legally cognizable and protected interest as persons pursuant to these repealed statutes, which are contrary to the United States Constitution as construed by the United States Supreme Court.

Furthermore, with regard to the unborn plaintiffs' standing as a "person" under § 11-3-4, before the RPA was enacted, the entirety of the criminal-abortion statute—which, in part, prohibited the "[p]rocuring, counseling, or attempting miscarriage"—was declared unconstitutional under the United States Constitution by the United States District Court for the District of Rhode Island. Therefore, at the time the RPA was enacted, the unborn plaintiffs had no legal rights or status under chapter 3 of title 11. With respect to Baby Mary Doe's standing under the quick child statute—which criminalized the willful killing of an unborn "quick child"—this criminal statute did not afford private citizens any legal rights. Thus, this statute did not provide Baby Mary Doe with any "legally cognizable" claim.

Lastly, the unborn plaintiffs failed to allege any concrete and actual (or imminent) injury at the time they sought judicial relief. There was no suggestion in their pleadings that the unborn plaintiffs were in danger or somehow threatened as potential crime victims. In fact, each was born during the pendency of this case. Accordingly, we conclude that, because the unborn plaintiffs lacked standing, their claims were properly dismissed….

Justice Goldberg and Chief Justice Suttell also added (though Justice Robinson dissented from this part of the opinion, concluding that any analysis of the question was improper because the plaintiffs lacked standing):

Because we are mindful of the critical public importance that attaches to a direct challenge to the General Assembly's constitutional authority to enact legislation, we briefly turn to that specific issue….

In 1986 the Rhode Island Constitutional Convention, through Resolution 86-00032 (Sub. A), as amended, revised article 1, section 2 of the state's constitution to include the due process and equal protection language of the Fourteenth Amendment to the United States Constitution. Significantly, however, the drafters inserted a sentence declaring that "[n]othing in this section shall be construed to grant or secure any right relating to abortion or the funding thereof."

"This Court has said that, in construing constitutional amendments, our chief function is to give effect to the intent of the framers." When the language in a provision of the constitution is "free from ambiguity, the[ ] [words] are to be given their plain, ordinary, and usually accepted meaning." "The historical context of a constitutional provision also is important in ascertaining its meaning, scope and effect." Importantly, "state constitutional and statutory law is subordinate to the constitutional powers of the federal government, and 'the Constitution and the laws passed pursuant to it are the supreme laws of the land, binding alike upon states, courts, and the people[.]'"

A plain reading of article 1, section 2 reveals that the language in the last sentence is clear and unambiguous. First, it is confined to that section of the constitution; it reads, "[n]othing in this section shall be construed to grant or secure any right relating to abortion or the funding thereof." R.I. Const., art. 1, § 2 (emphasis added). Second, this sentence employs the term "construed[,]" which connotes a judicial function, defined by Black's Law Dictionary as "[t]o analyze and explain the meaning of (a sentence or passage) <the court construed the language of the statute>." Construing provisions in the state's constitution is the function of this Court, and we have not been called upon to do so in the context of this case. But in no way has the General Assembly been prohibited from enacting the legislation at issue in the case at bar. The General Assembly enacts law; it does not interpret or construe the constitution—that is the function of this Court.

We pause to note that at the close of the 1986 Constitutional Convention, the public voted to approve and ratify or reject fourteen proposed constitutional amendments by way of referendum. Ballot Question No. 8, the proposed amendment to article 1, section 2, was approved. Notably, Ballot Question No. 14, an amendment effectively banning abortion in Rhode Island, was also on the ballot in 1986. The question failed. The submission of these two distinct questions to the voters convinces us that article 1, section 2 prohibits the drawing of any inferences concerning the right to abortion or its funding arising from the due process and equal protection provisions of the state constitution. We are of the opinion that the enactment of the RPA did not amount to a constitutional amendment requiring a referendum. We also reiterate that, because plaintiffs do not show an actual and personal stake in the outcome, we make no substantive ruling relative to their claims….