The abortion battle shifted to the states on Monday as a weekend of angry protest and prayerful thanksgiving in the aftermath Roe v. Wade Supreme Court case It gave way to a wave of lawsuits, legislation and fierce political battles from coast to coast.
With conservatives in nearly half of states moving quickly to end or significantly restrict reproductive rights, and liberals in about 20 other countries struggling to preserve them, the national debate suddenly split into a contentious patchwork, as lawyers and lawmakers dissected state constitutions and laws after Friday. Judgment in Dobbs v. Jackson Women’s Health.
“It’s all about the states from now on,” said Jesse Hill, a law professor at Case Western Reserve University who has worked on abortion rights issues. “We can imagine federal solutions to this issue or national settlements to the abortion issue, but I think after Dobbs, I don’t see many possibilities at the federal level.”
Abortion advocates in Kentucky, Idaho, Louisiana, Mississippi and Texas filed a lawsuit Monday to halt or delay abortion bans after a similar lawsuit was filed in Arizona over the weekend. Planned Parenthood South Atlantic has moved to withdraw a federal court’s appeal to a ban in South Carolina, but apparently only until the organization can file a new appeal in state courts.
To understand why, one only needs to look at Louisiana and Utah, where on Monday judges temporarily blocked enforcement of laws that would have banned abortion. Abortion advocates unite around the strategy of asking courts to issue temporary orders that could at least allow abortion to proceed in the short term. One of the three Louisiana clinics already said Monday that it will open again.
Although the actions with the most immediate potential impacts have taken place in states with bans or restrictions, states that support abortion rights moved Monday to bolster their protections. In California, an overwhelming majority of state lawmakers instituted a constitutional amendment to the November ballot to explicitly protect abortion rights for the state’s 40 million residents. In Washington, Governor Jay Inslee said he would continue to change that state’s constitution to make abortion rights permanent.
In states trying to ban abortion, legal battles are accelerating.
Hill is part of a team of attorneys who are challenging in federal court an Ohio law banning abortions after about six weeks of pregnancy. A judge allowed this law to go into effect after the Supreme Court ruling. But Hill said she believes the individual rights protections in the Ohio Constitution could make a compelling case that abortion is protected in the state.
In Florida, providers on Monday published similar arguments in a court hearing, claiming that privacy rights in the state constitution preempted a new state ban on the procedure after 15 weeks of pregnancy.
A Louisiana district court has temporarily blocked so-called laws that would have criminalized nearly all abortions after health providers argued that the ban was unenforceable, vague, and in violation of the state constitution. In Utah, a judge said he would temporarily prevent enforcement of the abortion ban in that state.
“Irreparable harm has been shown,” Judge Andrew Stone said while issuing a temporary restraining order that will be in effect for two weeks. Lawyers for a clinic that requested the order said they had 28 women waiting for an abortion appointment on Monday.
But even as lawsuits were filed, opponents of abortion moved to impose restrictions. In Mississippi, the state attorney general officially acknowledged the Supreme Court ruling, starting a 10-day hour after which nearly all abortions will be banned. In South Carolina, a measure banning abortion at about six weeks of pregnancy appears to be in effect after an abortion provider asked a federal judge to withdraw a lawsuit that prevented the law from operating. And in Indiana, the attorney general has asked the courts to allow the state to enforce several laws, including one that prohibits abortions requested because of race, gender or disability.
“I believe in building a culture of life in Indiana,” Attorney General Todd Rocetta said in a statement. “This means protecting the lives of the fetuses and protecting the physical, mental and emotional integrity of their mothers.”
As states grasped the end of a half-century-old set of reproductive rights guaranteed by the US Constitution, the most striking effect has been the speed with which they intensified already widening political divisions.
On Monday, attorneys general in 21 states and the District of Columbia issued a joint statement assuring out-of-state patients that they will protect their access to abortion. Represented states included New Mexico, North Carolina and Minnesota, which could take in more patients than neighboring states with abortion bans.
This comes after prosecutors in 19 other states last week asked the US Department of Justice to protect anti-abortion organizations from violence. Among the states represented are Florida, Ohio and Texas.
Brigitte Amiri, deputy director of the Reproductive Freedom Project at the American Civil Liberties Union, cautioned that judicial challenges, while important, are not a panacea for abortion-rights advocates. Even where they find comfort in the trial courts, they face a difficult legal and political landscape in the long run.
State supreme courts are dominated by Republican or Republican-appointed judges in many places with restrictive abortion laws. Even if some abortion restrictions are deemed unenforceable, legislatures can try to pass new laws and voters can seek to amend their state constitutions.
“As we have often said, the courts will not be able to save us,” Al-Amiri said. “It was true even when Roe was the law of the land – I needed all the tools in the toolbox at the time. But I think it’s more than that now. We have to diversify what we do in terms of trying to ensure access to abortion.”