A New Way Some State Courts Limit Abortion Rights 

Abortion rights exist in state constitutions, but getting courts to recognize them can be a hard road. One glaring problem is when decisions use flawed “history and tradition” analysis to replicate noxious past inequalities, borrowing federal precedent that has no place in state court. Another less obvious trend is equally troubling: Constitutional procedures can be roadblocks for abortion rights and access.

Several recent decisions and developments have stymied abortion rights litigation for reasons unrelated to the merits of the particular case. In April, pregnant women who have experienced horrific health harms from delayed or denied abortion under Tennessee’s ban were finally going to trial after protracted delay due to the state’s many failed attempts to appeal decisions permitting the case to advance. One week before trial, the state once again tried to appeal the court’s refusal to shut down the plaintiffs’ claim that the cruelly narrow exception to the criminal ban violated their right to life.

This time, though, the state cited a pair of statutory amendments that the legislature quietly enacted just weeks before, repealing a law waiving sovereign immunity (which had allowed the state to be sued for constitutional violations where no monetary relief was sought) and giving the state an automatic right to appeal any denial of its sovereign immunity defense. An intermediate court and the Tennessee Supreme Court had rejected Tennessee’s prior effort to appeal based on sovereign immunity, spurring the legislature to jump in and change the rules overnight. With the new laws now in place, the court canceled the trial. The result? Endless appeals that will further delay the trial, and crushed hopes for plaintiffs who have waited three years to hold the state accountable for their egregious reproductive autonomy violations in open court.

Plaintiffs in North Dakota similarly found procedural roadblocks prevented them from expanding reproductive rights. In Access Independent Health Services v. Wrigley, three of the five justices sitting on the North Dakota Supreme Court held that the state’s abortion ban was unconstitutionally vague about when abortion is permitted to preserve a patient’s life and health. Nonetheless, because North Dakota requires a supermajority of four of the five justices to find a law unconstitutional, the court reversed a lower court opinion that struck down the ban as vague and in violation of the right to abortion contained in state constitutional guarantees including unenumerated “procreative autonomy.” As a result, the stilted reading of history and tradition in the two-justice dissent effectively controls the outcome.

When the Georgia Supreme Court in February 2025 vacated a district court decision finding the state’s six-week abortion ban violated the right to liberty, it did so not on the merits but based on a recent change to its standing doctrine. A month earlier, the court had overruled its third-party standing doctrine in another case. As a result, medical providers and reproductive rights groups challenging the abortion ban in SisterSong v. Georgia could no longer bring the suit. (In a state-level version of the U.S. Supreme Court’s “shadow docket,” the Georgia high court had earlier, without reasoning, stayed an injunction and allowed the state’s six-week abortion ban take effect that same day, provoking a dissent about procedural irregularities.)

In May 2025 the Missouri Supreme Court also used procedure in an alarming way — this time the standard for granting a preliminary injunction — to reinstate almost every abortion ban and restriction in the state after the trial court had blocked them as violations of the state’s new voter-approved Reproductive Freedom Amendment.

Additional threats loom, some involving legislative interventions to throw up new procedural hurdles similar to what just happened in Tennessee. Utah’s total ban has been blocked since 2022, when a trial court judge held that it likely violated a range of provisions in the Utah Constitution that protect abortion, including inalienable rights and equal rights. The Utah Supreme Court upheld the injunction in 2024, issuing an opinion that explained how courts should use history and tradition expansively to avoid truncating rights when specific applications (like abortion) of higher-level protections (like bodily integrity) were historically disfavored. The case was moving along on the merits until this year, when the Utah Legislature created a new three-judge panel for constitutional cases and the state tried to get the case transferred out of the trial court that delivered its previous loss. Movement is now halted while attorneys for the providers challenge the legality of diverting the case to the newly convened panel. And in the meantime, the Utah legislature added two seats to the Utah Supreme Court in response to its rights-protective rulings on abortion and other issues.

It’s all part of a trend. After Dobbs v. Jackson Women’s Health Organization, decisions across the country are demonstrating that abortion rights exist and many trial courts are ready to let plaintiffs tell their stories and prove their cases. But hostile legislatures and appellate courts want to shut down abortion rights quietly without having to issue decisions the public would reject. With the political stakes of unpopular legal decisions high, procedure is a new tool to cut momentum in favor of abortion rights and access off at the pass.

Amy Myrick is Senior Counsel at the Center for Reproductive Rights.

Suggested Citation: Amy Myrick, A New Way Some State Courts Limit Abortion Rights, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (June 22, 2026), https://statecourtreport.org/our-work/analysis-opinion/new-way-some-state-courts-limit-abortion-rights