Abortion Rights Groups Take Up the Fight in the States

SACRAMENTO — The battle over abortion shifted to the states on Monday as a weekend of furious protest and prayerful thanksgiving in the wake of the Supreme Court’s Roe v. Wade reversal gave way to a coast-to-coast wave of lawsuits, legislation and pitched political fights.

With conservatives in roughly half of the states moving swiftly to end or dramatically restrict reproductive rights, and liberals in about 20 more scrambling to preserve them, the national debate suddenly fragmented into a contentious patchwork, with lawyers and lawmakers dissecting state constitutions and statutes after Friday’s ruling in Dobbs v. Jackson Women’s Health Organization.

“It’s all about the states from here on out,” said Jessie Hill, a law professor at Case Western Reserve University who has worked on abortion rights cases. “We can fantasize about federal solutions to this issue or nationwide settlements of the abortion question, but I think that after Dobbs, I don’t see a lot of possibilities at the federal level.”

On Monday, Texas, Louisiana, Mississippi, Kentucky, and Louisiana filed lawsuits to stop or delay abortion bans. This follows a similar Arizona court challenge that was filed over the weekend. Planned Parenthood South Atlantic requested the withdrawal of a federal court challenge to South Carolina’s ban on abortion, but it was only to be able to file a new challenge in the state courts.

You only need to look at Louisiana or Utah, where judges temporarily stopped enforcement of laws banning abortion. Abortion rights advocates have come together to advocate for temporary injunctions in court that allow abortions to continue in the immediate future. One of Louisiana’s three clinics already said on Monday that it would reopen.

The most immediate impacts were in states with restrictions or bans, but states that support abortion rights moved Monday to strengthen their protections. In California, a supermajority of state lawmakers placed a constitutional amendment on the November ballot to explicitly protect abortion rights for the state’s 40 million people. Gov. Jay Inslee said he would pursue a change in that state’s Constitution to make abortion rights permanent.

The legal battles in states that want to ban abortions are intensifying.

Professor Hill is part in a team that challenged an Ohio law banning abortions within six weeks of a woman’s pregnancy. After the Supreme Court ruling, a judge allowed that law into effect. But Professor Hill said she believed that protections for individual rights in Ohio’s Constitution could make for a compelling argument that abortion is protected in the state.

In Florida, providers on Monday deployed similar arguments in a court hearing, contending that privacy rights in the state’s Constitution pre-empted a new state ban on the procedure after 15 weeks of pregnancy.

The Louisiana district court temporarily blocked so-called trigger laws that would have criminalized nearly all abortions after health providers argued that the bans were unenforceable and vague and violated the state’s Constitution. Utah’s judge stated that he would temporarily block the enforcement of an anti-abortion ban in that state.

“There is irreparable harm that has been shown,” Judge Andrew Stone said while issuing a temporary restraining order that will be in effect for two weeks. Lawyers representing a clinic that sought the order stated that they had 28 women who were awaiting an appointment for abortion on Monday.

However, even though lawsuits were filed against abortion opponents, they moved to put restrictions in place. In Mississippi, the state attorney general officially recognized the Supreme Court’s ruling, starting a 10-day clock after which almost all abortions will be prohibited. After an abortion provider requested a federal court to withdraw a lawsuit that had been blocking the law’s implementation, South Carolina’s measure banning abortions at six weeks gestation appeared likely to be implemented. In Indiana, the attorney general requested that courts allow the state’s enforcement of several laws, including one prohibiting abortions based on race, sex, or disability.

“I believe in building a culture of life in Indiana,” Attorney General Todd Rokita said in a statement. “That means protecting the lives of unborn babies and safeguarding the physical, mental and emotional well-being of their mothers.”

The most striking effect of the U.S. Constitution’s end of a 50-year-old set of reproductive rights for states was its speed at which it widened already widening political divides.

Monday’s joint statement by attorneys general from 21 states and the District of Columbia reassured out-of state patients that they would safeguard their right to abortion access. New Mexico, North Carolina, and Minnesota were represented. These states could see more patients from neighboring states that have abortion bans.

This comes after 19 attorneys general from other states asked the U.S. Justice Department last week to protect anti-abortion groups from violence. Florida, Ohio, Texas were among those represented.

Some states that had been established by conservative legislators were challenged in some cases by more liberal cities. Ohio’s courts allowed a 2019 law banning abortion to take effect within six weeks of the Supreme Court ruling. Cincinnati’s mayor said on Monday that he was taking steps to change the city’s health plan to reimburse city employees for abortion-related travel and for reproductive services to the extent they are allowed under state law.

“It is not my job to make it easier for the state legislature and governor to drag women back to the 50’s and strip their rights,” Mayor Aftab Pureval tweeted. “It’s my job to make that harder.”

In North Dakota, a fund-raising campaign raised more than a half-million dollars in three days to help move the state’s sole abortion clinic a few miles to a new location on the other side of the Minnesota state line.

A number of court challenges to abortion bans have focused on state constitutions. Particularly those that contain a right to privacy. Alaska, Arizona and Washington all have specific provisions regarding a right to privacy.

Joanna Grisinger, an associate professor of instruction at Northwestern’s Center for Legal Studies, said she also expected abortion rights advocates to challenge the enforceability of trigger laws, which more than a dozen states enacted to quickly ban or restrict abortion after the Supreme Court decision.

“There’s all sorts of ways that a motivated state could probably try to continue, if they have the votes, to limit or ban most abortion access,” she said. “But there are certainly some strategies in the coming months we’re going to see pushing back against some of these.”

Dr. Grisinger predicted that there could be another round of court review if doctors were charged with crimes for performing abortions, believing that the mother’s health is at risk. Some abortion bans, which provide exceptions for mother’s health or life, are quite vague. This could lead to a conflict between doctors and prosecutors.

“I would at least anticipate challenges from doctors and medical associations as they really strive to figure out what they can do,” she said. But, she added, “a lot of this is going to wait until someone is prosecuted.”

Brigitte, the deputy director of Reproductive Freedom Project at American Civil Liberties Union, cautioned that court challenges are not a panacea to abortion rights supporters. Even in those places where they find relief in the trial courts, they face a difficult legal and political landscape.

Many states with restrictive abortion laws have their supreme courts dominated by Republicans or Republican-appointed justices. Even if certain restrictions on abortion are deemed unenforceable by the legislature, lawmakers can try to pass new laws. Voters can also amend state constitutions.

“Like we’ve often said, the courts are not going to be able to save us,” Ms. Amiri said. “That was true even when Roe was the law of the land — that you needed all the tools in the toolbox then. I believe this is even more now. We have to diversify what we’re doing in terms of trying to ensure abortion access.”

Reporting was done by Richard Fausset, Alexandra Glorioso, Jesus Jiménez Campbell Robertson.