The Power of State Reproductive Freedom Amendments

After the U.S. Supreme Court eliminated the federal constitutional right to abortion, voters in 10 states ratified state amendments codifying the right to abortion and reproductive rights more broadly. These initiatives all reflect public demand to restore constitutional protections, but they do not all take the same approach to doing so — far from it.

There are substantial differences in the text of these amendments, and those differences will affect how courts interpret the scope of the new guarantees and evaluate laws challenged under them. With dozens of abortion restrictions still on the books in these 10 states, abortion rights advocates first turned to the courts to regain and expand access to abortion. But most amendments offer far broader guarantees.

In a new report from UCLA Law Center on Reproductive Health, Law, and Policy, we analyze this developing landscape and what it could mean for realizing the promise of state reproductive freedom amendments. 

In 10 states — Arizona, California, Colorado, Maryland, Michigan, Missouri, Montana, New York, Ohio, and Vermont — voters ratified state constitutional amendments to establish new or stronger protections for reproductive rights. Not only are these bulwarks against criminal abortion bans, they also could unwind decades of restrictions that limit and undermine the accessibility, affordability, and dignity of abortion care. As we found in our research, over 50 laws restricting abortion (including ones now challenged or enjoined) were on the books in these 10 states at the time their amendments were ratified. These range from abortion bans to mandatory counseling and delay requirements to targeted regulation of abortion providers, such as admitting privilege and facility requirements, to funding bans and more.

Several state courts have already recognized that many of these laws — which have long been in effect or held constitutional under prior federal precedent — can no longer stand under new, stronger state constitutional guarantees. While the early decisions are promising, it will take ongoing implementation efforts and further interpretation by the courts to fully secure the legal rights guaranteed by the new amendments. Beyond that, proponents of these amendments, and the voters who ratified them, will need to fend off new anti-abortion strategies that seek to directly undo the amendments themselves.

To date, litigation in four states has resulted in state court decisions applying new amendments to block bans or longstanding abortion restrictions. Decisions in Arizona and Ohio permanently enjoined those states’ bans and a Michigan court held unconstitutional three types of abortion regulations that made it harder to access abortion care in the state. As the Ohio court explained, its 2023 reproductive freedom amendment “goes much further” than simply restoring the legal standard set forth in Roe v. Wade, which was overturned in 2022’s Dobbs v. Jackson Women’s Health Organization. The amendment renders any provision that indirectly burdens, penalizes, prohibits, interferes with, or discriminates against the right to pre-viability abortion presumptively invalid, the Ohio court said.

Battles over reproductive rights rage on in some states that recently passed amendments protecting abortion access. In Missouri, for example, while a state court has initially ruled that many of the state’s gestational bans and restrictions on abortion are likely unconstitutional under its reproductive freedom amendment, a new legislative initiative seeks to revoke that amendment. Six months after voters approved the amendment, anti-abortion lawmakers passed a referendum that, if approved by voters, would repeal it and ban nearly all abortions in the state. An American Civil Liberties Union lawsuit is challenging the new referendum as misleading and inaccurate, and a pending decision in that case could determine if it is on the ballot in November 2026.

It would be naïve to ignore the prospect of future hostile state court decisions or more ballot initiatives undermining the intent and impact of new constitutional amendments, particularly for abortion access. Still, there is power in how state reproductive freedom amendments can shape public and judicial understanding of constitutional rights over the longer-term.

Virtually all of the reproductive freedom amendments explicitly tie the positive rights they create to broader, foundational constitutional guarantees such as equality, liberty, and autonomy. Seven amendments use the language of equality, equal protection, or non-discrimination to protect reproductive health decisions and outcomes (California, Colorado, Maryland, Michigan, Missouri, New York, and Ohio) and six identify the constitutional guarantee as one of “freedom” (California, Maryland, Michigan, and Missouri) or “autonomy” (Vermont and New York). Additionally, Maryland and Vermont both describe the right as a matter of “liberty,” while Vermont and Missouri explicitly guarantee “dignity” and “respect.” And most protect a wide range of reproductive decisions and health rights beyond abortion. Almost all guarantee generally — and with specific language — decisions and health care critical to maternal health rights, birth justice, family formation, and more. And 7 of the 10 specify a highly demanding standard of judicial review.

Such framing and language affirm, as do decades of landmark state supreme court decisions, that multiple constitutional guarantees protect abortion and a broader right to reproductive autonomy. And while our research focused on the most immediate impacts for abortion laws, there are a host of other state interventions that infringe on the health, autonomy, and dignity of pregnant people in violation of state reproductive freedom amendments. At least one pending lawsuit is making that case: The ACLU of Vermont and Pregnancy Justice allege that, upon receiving confidential medical information about their client’s pregnancy, Vermont’s Department for Children and Families obtained an ex parte order to take custody of her fetus, sought an injunction to force an involuntary caesarean surgery, and then took custody of her newborn baby for seven months. They argue that this treatment of their client and the state’s broader “pattern and practice of surveilling pregnant Vermonters substantially interferes with and infringes upon their reproductive liberty,” and that Vermont’s reproductive liberty amendment prohibits “further penalty or criminalization due to [the client’s] protected medical decisions and birthing plans.”

Thus, state courts, if faithful to the specific rights and broader constitutional guarantees embodied in these amendments, can lead the way in building a more robust body of constitutional jurisprudence on reproductive rights. Likewise, as we urge in our report, it is up to voters, advocates, policymakers, and jurists to ensure these, and future, amendments are developed and enforced in ways that move us closer to reproductive justice.

Cathren Cohen is a staff attorney with UCLA Law’s Center on Reproductive Health, Law, and Policy.

Diana Kasdan is the legal and policy director of UCLA Law’s Center on Reproductive Health, Law, and Policy.