Legal Challenges to State Abortion Bans Since the Dobbs Decision Kaiser Family Foundation
Key Takeaways
The Supreme Court of the United States decision in Dobbs returned the decision to restrict or protect abortion to states. In many states, abortion providers and advocates are challenging state abortion bans contending that the bans violate the state constitution or another state law.
These challenges generally fall into three categories:
- Broad Constitutional Challenges: In Ohio, Oklahoma, Georgia, and Utah, among others, the abortion ban challenges include claims that state constitutional protections, such as liberty, due process, and privacy rights encompass a right to abortion.
- Health Care Amendment Challenges: Some state constitutions were amended to include a right to make health care and health insurance decisions in an effort to block the ACA’s individual coverage mandate. In Wyoming and Ohio, abortion advocates argue that this amendment includes the right to make a decision about whether or not to have an abortion.
- Religious Freedom Challenges: In Florida, Indiana, Kentucky, Missouri, Utah, and Wyoming people from various religious backgrounds argue abortion bans either unduly infringe on their religious exercise or violate state constitutional protections against the establishment of religion.
A number of state courts have responded favorably to many of these arguments and have temporarily blocked several bans while litigation on their constitutionality is ongoing. In time, these challenges will reach each state’s highest court, which will be the ultimate arbiter of the constitutionality of state-level abortion bans.
Introduction
Since the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, overturning Roe v. Wade and Planned Parenthood v. Casey, the legal landscape at the state level has been activated as never before. With the aim of restricting access to abortion, many states moved swiftly to lift court orders previously blocking bans, revive dormant pre-Roe bans, certify “trigger” bans, and enact new laws. Lacking federal protections, abortion providers have been on the front lines challenging these bans in state courts, questioning their constitutionality, not under the United States Constitution, but under each state’s constitution. Since the Dobbs decision, 23 states have tried to implement a complete ban or a pre-viability ban. In 6 states, these laws are currently blocked by courts. For an overview of the current legal status of abortion across the country, please see our abortion dashboard.
Although State Constitutions are similar to one another in many respects, each state has its unique judicial history and binding precedent, with State Supreme Court rulings diverging on liberty, privacy, and due process protections. Additionally, some states have amended their constitutions to include different abortion protections, while others have moved to assert that their constitution confers no right to abortion. Given these differences, abortion bans and restrictions that may be unconstitutional in some states may be constitutionally permissible in others. As a result, the types of challenges on state constitutional grounds have varied in states banning – or attempting to ban – abortion access, including those where the question of a constitutional right to abortion had never reached their highest courts, the ultimate arbiters of the constitutionality of state laws.
Despite the variety in the types of legal challenges to abortion bans, a few patterns in the approaches have emerged in the abortion litigation landscape. In this issue brief, we present an overview of some of the types of challenges presented in state courts since the Dobbs ruling in June 2022 and highlight some of the novel strategies that are being used to defend access to abortion in states that have enacted abortion bans.
Background
Before the Supreme Court of the United States (SCOTUS) Dobbs decision, the supreme courts of ten states had recognized a constitutional right to abortion in their states’ constitutions, but often under differing guarantees and protections. For example, in Montana in 1999, the state’s highest court found that the state constitution contained stringent protections of the right to privacy, exceeding those provided by the federal constitution, and, as such, ruled that procreative autonomy (the right to decide whether or when to have children) is protected under the right to privacy. Florida and Minnesota are two other states where the highest courts have ruled that their states’ constitutions include a more expansive right to privacy than SCOTUS had found in the federal constitution. In Massachusetts, the state’s highest court recognized that the right to abortion is found within the state constitutional due process rights.
Currently, nine state supreme court decisions finding state constitutional protections for abortion are binding precedent and have not been overturned by a subsequent decision or constitutional amendment. (Table 1). Just as SCOTUS overturned Roe, state supreme courts may overturn their previous decisions upholding the right to abortion in their state constitutions. In 2018, the Iowa Supreme Court found that the state constitutional rights of due process and equal protection encompassed the right to abortion. However, in June 2022, the Iowa court reversed itself, finding that the state constitution confers no fundamental right to abortion.
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