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R.I. Supreme Court rejects challenge to Reproductive Privacy Act

As the US Supreme Court looks to reverse Roe v. Wade, Rhode Island’s high court upholds the state law protecting abortion rights after Catholics for Life seeks to have it overturned.

People hold signs in support of abortion access during a pro-choice rally on the lawn of the Rhode Island State House in Providence, Rhode Island on May 3, 2022.Matthew Healey for The Boston Globe

PROVIDENCE — The Rhode Island Supreme Court on Wednesday rejected a legal challenge to the Reproductive Privacy Act, the law Rhode Island enacted in 2019 to protect abortion rights in case the US Supreme Court overturned Roe v. Wade.

The decision comes just two days after news broke that the US Supreme Court is poised to overturn the landmark 1973 decision that legalized abortion nationally.

The Rhode Island Supreme Court dismissed a legal challenge brought by Catholics for Life and other plaintiffs that claimed the Reproductive Privacy Act violated the Rhode Island Constitution. The attorney general’s office defended the validity of the law.

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In a 27-page opinion, Justice Maureen McKenna Goldberg rejected the argument that state Superior Court Judge Melissa E. Darigan had committed reversible error by dismissing the legal claims based on lack of standing, weighing in on the merits of the case, and shifting the burden of proof to plaintiffs. “We affirm the judgment of the Superior Court in all respects,” she wrote.

“The case before us involves a monumentally controversial issue as reflected in a deep and enduring societal divide,” McKenna Goldberg wrote. “This court appreciates the sensitive nature of the controversy surrounding the issue of the right to abortion, and we acknowledge the genuine concerns of the parties and amici in this case.”

Two of the five Supreme Court justices recused themselves from deciding the appeal.

Justice Melissa A. Long had denied a request for a temporary restraining order in the case when she was on the Superior Court.

And Justice Erin Lynch Prata had served as Senate Judiciary Committee chairwoman, helping to secure passage of the Reproductive Privacy Act. She made a key decision by transferring the bill from the Judiciary Committee, where passage was unlikely, to the Senate Health and Human Services Committee, which approved it.

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So the ruling was made by McKenna Goldberg, Supreme Court Chief Justice Paul A. Suttell, and Justice William P. Robinson III.

Robinson issued a partial dissent, saying, “I am able to concur in the portion of the majority’s opinion which holds that the plaintiffs in this case lack standing. However, in accordance with my long-held and emphatic belief that this court should not opine on issues concerning which we need not opine, it is my opinion that our holding that the instant plaintiffs lack standing should be the end of the matter.”

In 2019, Catholics for Life, Michael Benson, Nichole Leigh Rowley, and others filed a lawsuit challenging the constitutionality of the newly passed state law.

They cited the part of the state constitution that says “Nothing in this section shall be construed to grant or secure any right relating to abortion or the funding thereof.” They argued the Assembly lacked the power to pass the Reproductive Privacy Act because amending the constitution would require placing a constitutional amendment before the voters.

But the attorney general’s office argued that the language contained in Article 1, Section 2 of the state constitution was limited to that section and therefore did not limit the Assembly’s ability to pass the Reproductive Privacy Act.

In Wednesday’s ruling, McKenna Goldberg said, “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.”

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Also, she noted the section uses the word “construe,” and she said that is something that courts do, not legislatures.

“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,” she wrote. “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.”

McKenna Goldberg said Darigan was correct to rule that the plaintiffs lack legal standing to pursue the case.

For example, the adult plaintiffs had claimed they were deprived of a right to vote on the matter. But, McKenna Goldberg said, “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.”

Attorney General Peter F. Neronha issued a statement applauding the Rhode Island Supreme Court’s decision.

“In 2019, I was proud to play a key role in our state’s codification of the important reproductive health care freedoms established by Roe v. Wade and its progeny,” he said. “We have now successfully defended the Reproductive Privacy Act against a meritless legal challenge that our Supreme Court dismissed today.”

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Neronha, a Democrat, said, “The passage of the Reproductive Privacy Act and its continued viability ensures, during an uncertain national climate, that Rhode Island will not return to the days of illegal and unsafe abortions that put the lives of women in danger and created criminal liability for physicians.”

An attorney for the plaintiffs, Diane Messere Magee, said the plaintiffs and their lawyers are considering a petition for appeal to the US Supreme Court.

In a series of tweets, Messere Magee said the Rhode Island Supreme Court ruling relied significantly on Roe v. Wade and Planned Parenthood v. Casey, and while the plaintiffs are disappointed by the decision, “they view it in light of the pending US Supreme Court decision likely overruling Roe and Casey.”

“Regarding this court’s decision to address the significant underlying substantive issues in the case, we wholeheartedly agree with Justice Robinson’s dissenting remarks,” Messere Magee said.

She noted that Robinson wrote: “I am vigorously dissenting from the fact that the majority has chosen to address those weighty issues,” and “I do not subscribe to the entirety of the language in the majority’s opinion that leads to that dispositive holding.”

Tyler Rowley, president of Catholics for Life, said, “Despite this decision by the R. I. Supreme Court, we will continue to speak for the children who cannot speak for themselves. And we look forward to joining millions of Americans in Washington D.C. next January to celebrate the long-awaited defeat of Roe v. Wade on the 50th anniversary of that regretful day.”

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Steven Brown, executive director of the American Civil Liberties Union of Rhode Island, hailed the ruling.

“This decision is a welcome relief, especially in light of what we’ve learned about the US Supreme Court’s plans,” he said. “It guarantees that Rhode Island will remain a safe zone for exercise of this extremely important right.”

The ACLU had filed legal brief defending the Reproductive Privacy Act.

“The arguments against it were always bordering on frivolous from our perspective,” Brown said. “We think the court clearly came to the right decision. It’s a very timely decision in light of what we’ve learned this week.”

House Speaker K. Joseph Shekarchi, a Warwick Democrat, issued a statement, saying, “I am very pleased that the Rhode Island Supreme Court has affirmed the Reproductive Privacy Act enacted by the General Assembly. Regardless of any decision by the US Supreme Court, Rhode Islanders can be assured that a woman’s right to choose will be protected in our state.”


Edward Fitzpatrick can be reached at edward.fitzpatrick@globe.com. Follow him @FitzProv.