Trends to Watch in State Abortion Litigation
Since the reversal of Roe v. Wade in Dobbs v. Jackson Women’s Health Organization, state courts have moved to the center of the nation’s abortion wars. There are still key battles in federal court: over the application of the Emergency Medical Treatment and Labor Act to state laws denying abortion access in medical emergencies or challenges to the Food and Drug Administration’s authority to approve the abortion drug mifepristone. But more action has unfolded around the meaning of state constitutions.
To date, most cases — and key developments — have involved state protections for abortion. It is worth stressing, however, that some state judges seem amenable to anti-abortion constitutional claims. Judges in Florida, Oklahoma, and South Carolina have suggested not only that the state has an interest in protecting fetal life but also that the fetus may enjoy constitutional protections. In the future, state courts will likely witness conflicts about fetal personhood.
But looking at recent lawsuits focused on abortion protection, two key trends are especially worth watching, both of which offer clues to how the long campaign to reverse Dobbs might take shape.
The first involves experimentation with the foundation for a new abortion right. Equality-based claims for abortion have struck many as the most promising foundation to reconstruct a post-Dobbs constitutional right. State courts in Alaska, Arizona, and New Mexico have already looked at state equal protection clauses or Equal Rights Amendments as the basis for an abortion right. New litigation in state court also spotlights the connection between abortion and sex equality. Challenges unfolding in Pennsylvania and Nevada argue that state policies banning Medicaid reimbursement violate state Equal Rights Amendments. In Montana, a challenge to a stricter new Medicaid rule on abortion similarly turns on the state Equal Protection Clause.
If equality arguments are ascendant in academic and advocacy circles, however, the picture in state courts is more complicated, with privacy and autonomy-based claims continuing to play a significant role in state litigation.
In June, a deadlocked Iowa Supreme Court was divided over whether the state constitution still protected an autonomy-based abortion right in the wake of Dobbs, thereby assuring that a lower court decision invalidating the law remained in place. The Iowa court will soon weigh in on the constitutionality of yet another six-week abortion ban. The South Carolina Supreme Court looked to a state privacy right in striking down a six-week ban in January before the retirement of the court’s only female justice. More recently, the court upheld a virtually identical law, reasoning that the reconfigured law allowed patients a reasonable chance to avoid an unintended pregnancy. Privacy arguments are also central to cases pending before the Florida Supreme Court.
The ongoing vitality of privacy claims in state courts partly reflects the long shadow of the Roe decision: Roe, and related debates about privacy and choice, shaped state constitution-making and judicial decisions over the course of decades, and state courts today work against this background. At the same time, state court litigation illustrates the possibility of privacy rights that look quite different from the one sketched out in Roe and its progeny.
Another, possibly narrower foundation for abortion rights has appeared in cases in North Dakota, Oklahoma, and Indiana: a right to avert death or serious health threats. The Oklahoma Supreme Court has invalidated several of the state’s abortion bans for violating a state constitutional right to access abortion when there are grave threats to a patient’s life or health. The North Dakota Supreme Court has reached a similar conclusion, and in a decision allowing an abortion ban to go into effect, the Indiana Supreme Court likewise concluded that the state constitution protects the “right to an abortion that is necessary to protect her life or to protect her from a serious health risk.”
Fresh state court litigation seeks recognition of a right to abortion in exceptional circumstances. In Texas, plaintiffs challenge the constitutionality of the state’s narrow regime of exceptions. Suits filed in Idaho and Tennessee also seek to clarify and expand state exceptions.
The ascendancy of litigation focused on the scope of exceptions to abortion bans highlights the possibility of a new, abortion rights incrementalism. In the half century after the Roe decision, anti-abortion litigators sought to chip away at Roe by defending what appeared to be modest restrictions. In doing so, abortion opponents sought to limit access while making the idea of an abortion right increasingly hollow and incoherent.
Contemporary abortion rights litigation could reverse engineer this process. State courts with conservative judges may be more open to narrow, exceptions-driven litigation than demands for recognition of a broader right. In this way, exceptions litigation may expand access. At the same time, exceptions litigation may expose broader problems with Dobbs and the world it has ushered in. If a state court rules that one set of exceptions is constitutionally inadequate, it will be hard for legislators to write another that offers the clarity doctors need to care for patients, especially when legislators remain suspicious of physicians and those they care for, and when exceptions speak the language of criminal law rather than medicine. The more exceptions cases state courts take up, the more Dobbs’s intended — and unintended — consequences might define the decision’s legacy and facilitate its eventual overruling.
And so state courts will remain places where lawyers will experiment with new foundations for a right to abortion. But just as centrally, state courts have become home to incremental challenges that may yet chip away at Dobbs.
Mary Ziegler is the Martin Luther King Jr. Professor of Law at University of California, Davis.