State Courts Diverge In Latest Wave of Abortion Litigation

State supreme courts have emerged as a major site of progress for those advancing reproductive rights, but the latest round of rulings has painted a more complex picture. Conservative state courts have dismantled existing precedents, revived laws passed before the Civil War, and seriously considered efforts to short-circuit otherwise valid ballot initiative campaigns. Some have even signaled an interest in recognizing fetuses as persons under state constitutions. These recent developments underscore both the mutability of state reproductive rights law and the importance of upcoming judicial elections.

A pair of rulings from Pennsylvania and Arizona illuminate the stakes of state supreme court composition. The Pennsylvania case involved a challenge to the state’s Medicaid rules, which deny reimbursement for abortion. A group of Pennsylvania abortion providers sought to overturn a 1985 ruling upholding the Medicaid ban and to establish that the Medicaid exclusion would violate both a right to autonomy under the state constitution and the state’s Equal Rights Amendment. The lower court had held that the plaintiffs did not have standing to sue and relied on the 1985 ruling, Fischer v. Department of Public Welfare, in rejecting the plaintiffs’ equality claim.

In a recent ruling, the Democratic-majority Pennsylvania Supreme Court reversed, holding that providers had standing to bring claims on their patients’ behalf and explicitly overruling Fischer to conclude that the Medicaid ban is a form of sex discrimination that is “presumptively unconstitutional.” The court split by a vote of 2–2–1 on the question of whether the state constitution recognized a right to abortion, with one justice reasoning that there was no need to reach the question given the court’s holding on the state ERA. While the ruling in Allegheny Reproductive Health v. Pennsylvania Department of Human Services did not definitively answer questions about abortion rights under the Pennsylvania Constitution, the court revived the state ERA as a tool for future challenges to abortion restrictions.

Litigation is also ongoing in Arizona, where the state supreme court, which is composed entirely of Republican-appointed justices, recently rejected a challenge to an 1864 law banning abortion except in cases of a threat to the life of the patient. Planned Parenthood’s case had focused on the tensions between the 1864 law and a far more recent 15-week ban. The plaintiffs argued that the 15-week ban reflected the intention of legislators to permit abortions earlier in pregnancy. In a 4–2 ruling, the Arizona Supreme Court rejected that interpretation, reasoning that the 1864 law had been made ineffective only by the federal abortion right recognized in Roe v. Wade. After the reversal of Roe in June 2022, the court reasoned, there was nothing to stop the 1864 law from going back into effect. The court stayed its ruling for two weeks to allow time for the consideration of constitutional challenges to the state statute, but the stark contrast between the outcomes in Pennsylvania and Arizona is still hard to avoid.

An equally sharp divide was evident in a pair of rulings on the validity of reproductive rights ballot initiatives. The Nevada Supreme Court turned away a challenge by a state anti-abortion group arguing that a proposed ballot initiative, which would recognize a state constitutional amendment covering “prenatal care, childbirth, postpartum care, birth control, vasectomy, tubal ligation, abortion, abortion care, management of a miscarriage, and infertility care,” violated the state’s single-subject rule, had a misleading description, and required an expenditure of money without raising the necessary revenue. Without any noted dissents, the court disagreed and found the proposed ballot initiative to be “straightforward, succinct, and non-argumentative.”

The Florida Supreme Court, too, allowed a proposed ballot initiative to go forward. The state’s attorney general, Ashley Moody, had argued that the ballot initiative would mislead voters because relevant terms of the ballot measure, including “health” and “viability,” could be interpreted more broadly by physicians than most voters would expect. The Florida Supreme Court rejected this and other arguments raised by Moody in a 4–3 ruling. The ballot initiative, the court reasoned, addressed a single subject — government “interference with abortion” — and did nothing to mislead voters about its “obviously broad sweep.”

But the Florida ruling struck a far different note than the superficially similar Nevada decision. To begin with, the Florida high court issued the decision the same day it separately overturned a 1989 precedent recognizing a state constitutional abortion right. Writing for a 6–1 majority, Justice Jamie Grosshans reasoned that there was “no clear right to abortion” in the state’s Privacy Clause.

Even in the ruling allowing the ballot initiative to go forward, there were signs that voters might not have the last word. Several dissenting opinions raised the issue of fetal personhood. Justice Grosshans, for example, argued that the ballot initiative might mislead voters because it failed to address its impact on Article I, Section 2, of the Florida Constitution — specifically, whether “the rights guaranteed in article I, section 2 apply to the unborn.” Justice Renatha Francis likewise insisted that the ballot initiative failed to recognize the “right to life of the unborn.”

The majority hardly disposed of the question of fetal personhood in the future, maintaining that “the constitutional status of a preborn child under existing article I, section 2 presents complex and unsettled questions.” It is possible that the ballot initiative would put to rest claims about fetal personhood. Other conservatives, however, read the opinions as an invitation to pursue personhood litigation.

Together, these four decisions illuminate the terms of contemporary debate in state courts. With a growing number of states putting forward ballot initiatives, courts will not only decide whether such measures will go to voters but also interpret any measures that pass. And as equality claims become more central to state constitutional litigation, state judges will decide whether the most critical equality concerns are raised by fetuses or pregnant patients.

Mary Ziegler is the Martin Luther King Jr. Professor of Law at University of California, Davis.