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Less than two years after the Supreme Court in Dobbs v. Jackson Women’s Health Organization overturned Roe v. Wade, the landmark decision recognizing a right to choose abortion, a campaign to reverse Dobbs and reestablish a new right to reproductive autonomy has taken shape. This emerging strategy deploys what this Article calls state constitutional incrementalism: an effort to chip away at a federal precedent by scoring wins in state supreme courts.

This Article explores the promises and perils of state constitutional incrementalism, using reproductive rights, both past and present, as a critical case study. It traces the history of antiabortion incrementalism, with special attention to state courts, and then explores how contemporary abortion-rights advocates have drawn on the lessons of the past (among others) to reverse engineer this campaign in the present day. Two incrementalist strategies have emerged in state court as a result: efforts to secure state constitutional protections for abortion and to highlight the inadequacy of exceptions to state abortion bans. These efforts are incremental in more than one sense. None of them directly challenge federal precedent. In the short term, however, both promise to change the reality on the ground, state by state. And both can set the stage for a later challenge to a federal precedent.

A complicated picture of the costs and benefits of state constitutional incrementalism emerges from this study. State constitutional incrementalism can offer powerful evidence of the internal contradictions and unworkability of state precedents that echo a federal decision or state laws that a federal precedent permits. State constitutional incrementalism also facilitates experimentation with different jurisprudential foundations for constitutional rights. These experiments can afford a rare glimpse of the real-world efficacy of different approaches to liberty and equality. And a critical mass of state constitutional decisions can provide evidence of an “evolving,” popular understanding of the constitutional protections that may also matter in the federal context.

At the same time, however, the success of state reproductive-rights incrementalism, much like the fight to reverse Roe, will depend a great deal on the responsiveness of state courts to popular mobilizations for constitutional change. History shows that the incrementalist campaign to undo Roe owed as much to gerrymandering, efforts to deregulate campaign spending, and strategies to limit access to the vote than it did to lower court victories or incrementalist litigation. A new effort to restore reproductive rights will have to attend as closely to the same kinds of structural change.

Assisted reproductive technology (ART), which encompasses fertility treatments in which eggs or embryos are handled, is a frontier of family law and reproductive justice, and developments in abortion jurisprudence may shape its borders. Abortion restrictions and other laws regulating pregnant people are often framed with rhetoric emphasizing fetal personhood or fetal rights. Now that abortion is legally unshielded from criminalization, the consequences of Dobbs will reach, as did fetal-personhood laws before, even those who are not seeking abortions. As commentators have observed, this collateral damage threatens to touch potential parents seeking to use ART. Yet so far, the most abortion-restrictive states tend to carve out protections for ART from their laws regarding fetuses. This Note argues that states touting fetal personhood protect ART users—while persecuting people who partake in a multitude of other types of conduct thought to harm fetuses—because ART furthers the creation of white, affluent families that suit these states’ normative values. Fetal personhood, then, is a tool for social control. Advocates of reproductive freedom should surface this truth in efforts to stave off the proliferation of fetal-personhood laws at the state and federal levels.

The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization held that there is no right to abortion healthcare under the United States Constitution. This Essay details how states prosecuted pregnant people for pregnancy behaviors and speculative fetal harms prior to the Dobbs decision. In this connection, it also identifies two, related post-Dobbs concerns: (1) that states will ramp up their policing of pregnancy behaviors and (2) that prosecutors will attempt to substantiate these charges by relying on invalid scientific evidence. This Essay examines the faulty forensic science that states have used to support fetal harm allegations and reminds defense attorneys of their obligation to challenge junk science in the courtroom.