An Eventful Summer for State Constitutional Abortion Rights Litigation

The U.S. Supreme Court’s most recent abortion cases ended in an anticlimactic fashion: the Court held that the anti-abortion doctors challenging the FDA approval of mifepristone did not have standing to sue, and dismissed another suit over whether a federal law requiring hospitals to provide emergency care trumps Idaho’s strict abortion ban. In both cases, the justices did not reach the underlying issues.

State courts, by contrast, have issued dramatic and wide-ranging abortion rulings this summer. The Texas Supreme Court rejected a challenge to that state’s abortion ban, Iowa’s upheld a six-week abortion ban, Kansas’s reaffirmed the right to abortion under its state constitution, and Utah’s temporarily blocked a near-total ban. New disputes have erupted in Michigan and Wisconsin, both critical battlegrounds around reproductive rights, both because of their swing-state status and their location in a region where abortion access is far from universal. These cases highlight the importance of both upcoming state supreme court elections and ongoing debates within state courts about the relationship between state and federal constitutional law.

Decisions Limiting Abortion Rights

In one of the most-watched state cases, the Texas Supreme Court this summer rejected a challenge to that state’s near-total abortion ban in Zurawski v. Texas. The plaintiffs included women who had experienced life-threatening pregnancy complications and doctors who said that the ban prevented them from meeting their ethical obligations to provide medical care to patients in need. They asked the court to clarify that the law — which allows abortions when the life of the mother is threatened — protected the good-faith judgment of physicians acting to preserve their patients’ safety or to intervene when a fetus was unlikely to survive. The plaintiffs also argued that the ban should not be enforced at all because it violated state constitutional due process and equal protection guarantees.

The Texas Supreme Court declined to interpret the law as allowing for abortions based on a doctor’s good-faith judgment, maintaining that the language providing exceptions was sufficiently clear. It further concluded that a pregnancy had to threaten a patient’s life or a major bodily function before a doctor could legally provide an abortion: it was not enough that a pregnancy was unsafe or that a physician identified a fetal condition incompatible with life.

The court went on to reject the plaintiffs’ claims that the law violated the state constitution, relying in part on history. Texas long had an “unmistakable commitment to protecting the lives of pregnant women experiencing life-threatening complications while also valuing and protecting unborn life,” the court said.

In Planned Parenthood of the Heartland v. Reynolds, the Iowa Supreme Court upheld a ban on most abortions from the moment a physician can detect fetal cardiac activity and reaffirmed that a focus on history and tradition — an approach echoing Dobbs v. Jackson Women’s Health Organization — would shape the state’s law.

The decision turned on how closely a court should scrutinize laws restricting abortion, known as the standard of review. In 2022, the court had ruled that there was no fundamental right to choose abortion under the Iowa Constitution, but did not set out the standard of review that should apply. The state then asked the court to lift an injunction blocking enforcement of a fetal heartbeat law. In blocking the law, the district court had applied an “undue burden” test, which asks whether the state created a substantial obstacle in the path of a patient seeking abortion. The supreme court deadlocked 3–3, leaving the injunction in place, and the state legislature passed a virtually identical law.

In this summer’s decision rejecting a challenge to the new law, the court announced that the lowest level of judicial scrutiny, rational basis review, should apply to abortion restrictions. The court underscored that a Dobbs-style history-and-tradition test should dictate the result in the case, noting that abortion had been a crime at common law and at the time of the ratification of the Iowa Constitution. Unlike some other conservative state supreme courts, including those in Oklahoma, North Dakota, and Indiana, the Iowa Supreme Court did not suggest that the state constitution protected access to abortion even in cases of threats to life or health. The court held instead that “the state’s interest in protecting the unborn can be traced to Iowa’s earliest days” — and that the law easily satisfied rational basis review.

Decisions Maintaining Abortion Rights

In Hodes & Nauser v. Kobach, the Kansas Supreme Court last month reached an almost diametrically opposed result when it came to the relevance of Dobbs. The court struck down a ban on dilation and evacuation, the most common procedure after the first trimester, underscoring how much its interpretation of the state’s constitution differs from the interpretation of the federal Constitution.

In 2020, the state supreme court had held that the state constitution recognizes “a right to decide whether to terminate a pregnancy.” In Kobach, the court reaffirmed this right, rejecting the state’s invitation to reconsider its decision in the wake of both Dobbs and the Iowa decision. The Kansas Supreme Court held that those decisions “do not control or even bring into question our interpretation of the Kansas Constitution Bill of Rights.” When it came to the constitutionality of the dilation-and-evacuation ban, the court dismissed the idea that the state had an interest in protecting the “dignity of life, born and unborn” by stressing that the interest was “so generic as to mean anything the State wants it to mean when it needs to justify anything it would want to do.” Even if the state could identify a compelling interest, the court emphasized that the state had “not presented even a scintilla of evidence” that the ban on the procedure “furthers the stated interest.”

The Utah Supreme Court this month upheld a lower court’s preliminary injunction against a near-total abortion ban, blocking enforcement of the law as a challenge to its constitutionality makes its way through the lower court. Although the high court did not reach the merits at this stage, it previewed that it would “look to history and tradition as part of the inquiry into what statehood-era Utahns would have understood the constitution’s text to mean.” Significantly, the court seemed skeptical that an examination of Utah’s history and tradition would yield the same result reached by the U.S. Supreme Court in Dobbs. The court suggested that examining history required a look not only at state statutes but also at the attitudes of Utahns, including women, at the time the relevant constitutional provisions were ratified.

The case is now back in the lower court for consideration of Planned Parenthood’s claims that the law infringes on state constitutional rights to “bodily integrity,” to “determine one’s own family composition,” and to equal protection.

Cases to Watch

These cases illustrate the wide range of positions taken by state supreme courts on the relevance of history and tradition in the aftermath of Dobbs. Similar questions will confront the Wisconsin Supreme Court when it considers two challenges to an 1849 law that conservative lawmakers interpret as criminalizing abortion except in cases of threats to life. A lower court judge in 2023 issued a ruling interpreting the 1849 law to apply only to persons who attacked pregnant women and killed their unborn children — not to abortion — a conclusion on which abortion providers relied to resume providing service in the state. A Republican district attorney asked the state supreme court to intervene in the case, and Planned Parenthood of Wisconsin filed its own suit, asking the court to declare the statute unconstitutional.

The court agreed to hear both appeals, dividing 4–3 on partisan lines in deciding to grant Planned Parenthood’s request. One of the justices in the court’s liberal majority, Ann Walsh Bradley, has announced that she would retire in July 2025, and one prominent conservative has already announced a bid to replace her. The fate of abortion bans in Wisconsin — or the role of a Dobbs-style history-and-tradition test — may not be permanently settled by whatever rulings the court issues in the two cases on the state’s 1849 law.

Conflicts around reproductive rights rage on even in states that have already passed ballot initiatives. Consider the example of Michigan, where recent litigation seeks to establish the meaning of the state’s Reproductive Freedom for All Act. In June, a lower court blocked the enforcement of a 24-hour waiting period before an abortion, reasoning that it conflicted with the act. A few days later, YMCA Kalamazoo, which pays for abortions for Medicaid-eligible patients, filed a suit arguing that Michigan’s ban on Medicaid reimbursement for abortion also ran afoul of the law.

Ballot Initiatives Spark Litigation

The litigation in Michigan drives home the degree to which ballot initiatives will make state supreme courts even more important sites of constitutional conflict. But state courts don’t just interpret constitutional amendments after they have passed. They also decide whether ballot initiatives can go forward at all.

State courts have already waded into disputes about whether voters will have the power to weigh in on abortion rights this fall. In Florida, for example, the state supreme court allowed a proposed amendment protecting abortion to appear on this fall’s ballot. In Arizona — where the secretary of state this week certified for the ballot an initiative that would protect abortion access — opponents have sought to block voters from considering a ballot initiative on the ground that it is misleading. Abortion-rights supporters, meanwhile, have sued the state over what they claim is medically inaccurate and biased voter guide language. The Arkansas Supreme Court issued a ruling ordering the secretary of state to continue verifying voter signatures in support of an initiative protecting abortion after the state froze the process based on a problem with the canvassers’ paperwork. South Dakota abortion opponents have also brought the state supreme court into the mix, asking the court to keep an abortion-rights measure off the ballot because, they claim, abortion-rights supporters misled voters in gathering signatures.

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The future of reproductive rights in state court remains uncertain, as state court composition can rapidly change, and as new ballot initiatives go to voters and are interpreted by courts. But one thing is clear: the reproductive rights Americans have — and how they are enforced — will continue to depend largely on state constitutional law.