Abortion Fight Moves To State Courts After Supreme Court Overturns Roe

Judges have already temporarily blocked abortion bans in Utah, Texas, Louisiana and Kentucky.

State courts are the new battleground over abortion rights after the Supreme Court overturned the nearly 50-year-old right to an abortion recognized in the 1973 Roe v. Wade case.

Laws meant to ban or almost completely restrict abortion started to go into effect in 22 states after the court released its decision last Friday morning in Dobbs v. Jackson Women’s Health Organization.

Providers and abortion rights proponents fired back quickly with lawsuits in at least six states to block those laws from going into effect.

So far, lawsuits have been filed in Idaho, Kentucky, Louisiana, Mississippi, Texas and Utah, with further suits likely forthcoming in Ohio and South Carolina. Another lawsuit in Arizona is targeting a “personhood law” that could act as an abortion ban. In Michigan, Gov. Gretchen Whitmer (D) had filed a lawsuit asking her state’s supreme court to find a right to an abortion in the state constitution prior to Dobbs. And two pre-Dobbs lawsuits are ongoing in Florida and North Carolina.

In Kentucky, Louisiana, Texas and Utah, the lawsuits have already won temporary injunctions from state judges blocking abortion bans from immediately going into effect.

“We are using whatever means possible to preserve access for as many people as possible for as long as possible, and state constitutions are integral to that effort,” said Alexa Kolbi-Molinas, deputy director of the Reproductive Freedom Project at the ACLU.

In many cases, state constitutions have more expansive protections than the federal Constitution that could provide a basis for abortion rights that goes beyond a right to privacy. These include state constitutional clauses providing due process, equal protection, health care freedom and the right of citizens to practice their profession, among others.

For example, the lawsuit brought by Planned Parenthood Associates of Utah and the ACLU challenges the state’s trigger ban ― a previously unenforceable law that went into effect after Dobbs ― under seven different provisions of the Utah Constitution. These include a right to privacy, rights to equal protection and due process, equal access for men and women to all civil rights, a ban on involuntary servitude, and protections for families to make their own decisions.

People rally for abortion rights at the Utah State Capitol in Salt Lake City after the Supreme Court overturned Roe v. Wade on June 24, 2022.
People rally for abortion rights at the Utah State Capitol in Salt Lake City after the Supreme Court overturned Roe v. Wade on June 24, 2022.
Rick Bowmer via Associated Press

A state district court granted a quick pause on the trigger law on June 27.

“The immediate effects that will occur [from an abortion ban] outweigh any policy interest of the state in stopping abortions immediately,” Judge Andrew Stone said. “Doctors here are threatened with felonies. Affected women are deprived of safe, local medical treatments to terminate pregnancies.”

Stone ordered the next hearing on the case to be held on July 11 while noting that, whatever his ruling, the case is likely to “go upstairs” to the state Court of Appeals and Utah Supreme Court. But the temporary restraining order meant that people who had already scheduled appointments at abortion providers could access those services.

“What that allowed Planned Parenthood of Utah to do was to serve the pregnant people waiting all day in our waiting room, and call the others back who had said, ‘We’re going to go home and wait and see if the trigger ban is lifted,’” said Karrie Galloway, president of Planned Parenthood Action Council of Utah.

Because of the judge’s order, Galloway said, the three Planned Parenthood health centers in Utah were able to provide care to 32 people who had previously made appointments on Tuesday alone.

Similarly, abortion providers in Louisiana and Texas have resumed operation after state courts placed temporary injunctions on their state’s trigger bans.

In Kentucky, where the two providers in Louisville have stopped services due to the state’s trigger ban, a lawsuit from Planned Parenthood and the ACLU asks the state courts to find abortion protected by constitutional provisions that have been interpreted to include rights to privacy and self-determination.

“The Kentucky Constitution, we believe, protects the right to bodily autonomy and privacy and should therefore allow us to continue to provide care based on that,” said Tamarra Wieder, the Kentucky state director for Planned Parenthood Alliance Advocates.

A judge in Kentucky’s Jefferson County placed a temporary injunction on the state’s trigger ban and six-week ban laws on Thursday.

Similar arguments are being made in the other states where lawsuits have been filed, with more suits on the way.

A forthcoming lawsuit from Planned Parenthood and the ACLU in Ohio could cite any number of provisions, from the state’s due process clause to its health care freedom amendment.

“Our state has a history of interpreting our constitution to be more protective of individual rights more than the federal constitution,” said Jessie Hill, a law professor at Case Western Reserve School of Law who has worked on abortion cases in Ohio. “They’ve done this with the right to bear arms, they’ve done this with the free exercise of religion, they’ve done this with rights of criminal defendants, with rights to private property.”

In Michigan, it is unclear what the law even is at the moment. The state has a 1931 law on the books banning abortion with no exceptions for rape or incest that has not gone into effect due to a temporary injunction placed by the state courts.

Michigan Gov. Gretchen Whitmer speaks to abortion rights protesters at a rally following the U.S. Supreme Court's decision to overturn Roe v. Wade on June 24, 2022. She has asked the state supreme court to find a right to an abortion in the state constitution.
Michigan Gov. Gretchen Whitmer speaks to abortion rights protesters at a rally following the U.S. Supreme Court's decision to overturn Roe v. Wade on June 24, 2022. She has asked the state supreme court to find a right to an abortion in the state constitution.
Paul Sancya via Associated Press

Whitmer and state Attorney General Dana Nessel (D) oppose resuscitating the 1931 law and have stated that they would not enforce it if it came back to life. But some anti-abortion county prosecutors have suggested that they would begin to prosecute cases immediately, and some health providers that had offered abortion services stopped providing them after Dobbs.

Before the Dobbs decision, Whitmer filed suit asking the Michigan Supreme Court to find a right to abortion in the state constitution. On June 27, she urged the justices to immediately take up the case due to the confusion created by county prosecutors and health providers.

“Getting this done will put an end to any confusion and ensure that Michiganders, health providers, and prosecutors understand the law,” Whitmer said in a statement accompanying her notice to the court.

While state constitutions may grant more expansive rights than the U.S. Constitution, state courts can face issues of partisanship and ideological conformity similar to the federal courts. In some cases, state judges are elected to office, sometimes explicitly running as a member of a political party. A significant number of appointments made by one governor can also dramatically shift the balance of power on a court, affecting case outcomes.

On June 17, exactly one week prior to the release of the Dobbs decision, the Iowa Supreme Court overturned its 2018 precedent that had found a right to an abortion in the state constitution. This reversal was made possible after Gov. Kim Reynolds (R) appointed four of the court’s seven justices since the 2018 ruling. After Dobbs, Reynolds filed suit in state court to get an injunction removed from the 2018 law she signed that bans abortion after six weeks.

“In that sense, state courts are not different than the U.S. Supreme Court,” Kolbi-Molinas said. “They have the ability to reverse their precedent and are not immune from politicization.”

But with federal courts almost totally closed off by Dobbs, abortion rights supporters have to rely on the state courts. And that may involve long legal battles moving forward alongside political mobilization.

“This is only the first step in a long, arduous process,” Galloway said.

In some states, advocates have already begun mobilizing against ballot initiatives seeking to prevent state courts from ever finding a protection for abortion rights in their state constitutions.

The Kentucky legislature voted in 2020 to put a constitutional amendment on the November 2022 ballot that would declare no right to an abortion exists in the state constitution.

“Our research is really good. We are going to win,” Wieder said. “And this is our way to fight back. These constitutional amendments and referendums are the last backstop for so many of us searching for legal pathways to access.”

In Ohio, Hill predicts that there will be a constitutional amendment on the ballot by 2024, “one way or the other.”

“If there’s victory in the court, there’s going to be a ballot initiative to overturn that victory and to say that there are no abortion rights in Ohio. And if there’s a loss in the courts, I think there will be an initiative on the pro-choice side,” Hill said.

Meanwhile, any success in the courts, even a temporary reprieve granted by an injunction, allows those seeking abortion services, many of whom made appointments prior to the Dobbs decision, to get the care they need without having to travel even longer distances to out-of-state providers.

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