So You Passed a State Constitutional Amendment Protecting Abortion. Now What? 

Since the Supreme Court ruled in Dobbs v. Jackson Women’s Health Organization that there was no federal constitutional right to an abortion, voters in 10 states have passed state abortion rights amendments, including 6 this year. (In one more state, Nevada, an amendment passed this year but must go before voters again in 2026.) Many voters likely thought that casting their ballot was the end of the story. The reality is that passing an amendment is often just another step in the lengthy legal and political wrangling over state abortion rights.

First off, passing a constitutional amendment doesn’t automatically remove abortion bans or restrictions from the statute book — which means litigation is often a necessary second step even after an amendment wins on the ballot. This year, for example, voters in Arizona and Missouri passed amendments that on their face appear to overturn state laws. (Arizona currently has a 15-week abortion ban on the books while Missouri bans virtually all abortions — one of the strictest laws in the country.) Abortion providers in both states have now filed lawsuits asking state courts to block these laws and offer a definitive legal statement that they’re inoperative. 

In Missouri, where the state’s amendment formally took effect last Friday, Planned Parenthood announced that it would not resume providing abortions until the court issued an injunction in its case. (The court heard oral arguments last week.) At least one sticking point is whether Missouri can still enforce various abortion restrictions, such as a 72-hour waiting period and a requirement that providers have hospital admitting privileges. In Arizona, by contrast, the state attorney general has taken the position that the state’s 15-week abortion ban violates the new amendment and filed a stipulation with the court that the state would not enforce the law while litigation is ongoing. At least some Arizona providers have stated that with this agreement in place they will resume expanded services.

Another set of questions relates to exactly what’s covered by a state’s abortion amendment. As the Missouri dispute highlights, many states have a web of laws and regulations relating to abortion that can pose serious practical hurdles to abortion access. In Ohio, for example, where voters passed an abortion rights amendment last year, the state attorney general has said he will appeal a lower court decision striking down the state’s six-week abortion ban. While conceding that the ban itself violates the state constitution, he argues that other provisions of the law should stay in effect, including a requirement that health providers assess and inform patients of the presence of a fetal heartbeat (with potential civil and criminal liability for failures to do so). 

As courts consider these questions, it’s significant that many abortion rights amendments explicitly lay out a far more demanding inquiry into abortion regulations and restrictions than what was required under federal law even before Dobbs. In Planned Parenthood of Southeastern Pennsylvania v. Casey, the Supreme Court established a rule that abortion restrictions would be struck down when they placed an “undue burden” on people seeking abortions. Under that test, many kinds of regulations, including 24-hour waiting periods and parental consent laws, were upheld. 

By contrast, several state amendments have protections that appear to go far beyond undue burden. In Michigan, for example, a 2022 amendment establishes a “fundamental right” to reproductive freedom, including abortion care, and states that this right “shall not be denied, burdened, nor infringed upon unless justified by a compelling state interest achieved by the least restrictive means.” 

Relying on this language, a Michigan trial court issued a preliminary injunction in June barring the enforcement of state laws imposing a 24-hour waiting period, requiring that abortions be performed only by doctors, and imposing “informed consent” requirements that the plaintiffs argued were designed to deter abortion patients. The court pointed to the text of the amendment as a basis to reject Casey’s undue burden framework and instead apply strict scrutiny, the most exacting form of judicial review. Soon after the judge’s decision, a new lawsuit was filed in Michigan challenging a state law ban on Medicaid coverage for abortion services.

One looming question in all of these states is how state supreme courts will ultimately assess the scope of rights under these amendments. They do so in a brave new world of highly politicized judicial elections, where abortion has often been a campaign issue and where special interests on all sides can flood races with seven- and eight-figure spending. And they’ll decide cases in a political environment where state legislatures are increasingly seeking greater political and partisan control over state judicial selection — sometimes explicitly in response to judicial rulings. 

Back in June, the Center for Reproductive Rights’ Amy Myrick and Alexander Wilson argued that “it would be a mistake for advocates to think that direct democracy alone can restore abortion rights.” Just as important, they argued, is protecting “the independence of state courts that will safeguard the democratic process as well as reproductive autonomy.” As we consider the legal contours of new abortion amendments, and look to future amendment campaigns as well, the political environment in which state courts operate is a critical part of the analysis.

Alicia Bannon is the director of the Judiciary Program at the Brennan Center for Justice and editor in chief for State Court Report.

Suggested Citation: Alicia Bannon, So You Passed a State Constitutional Amendment Protecting Abortion. Now What?, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Dec. 12, 2024), https://statecourtreport.org/our-work/analysis-opinion/so-you-passed-state-constitutional-amendment-protecting-abortion-now-what