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Reproductive Rights Landscape Shifting Quickly

Sharon Wells
Posted by Sharon Wells on Jun 2022


“On June 24, the United States Supreme Court decided the case of Dobbs v. Jackson Women’s Health Organization. The Supreme Court upheld a Mississippi law that banned abortions after 15 weeks of pregnancy, with no exception for rape or incest. In upholding the Mississippi law, the Supreme Court overturned one of the most famous Supreme Court precedents, Roe v. Wade (1973). Roe v. Wade was a half-century old opinion that established that our Constitution protects a woman’s right to privacy to have an abortion, restricting the ability of states to place an undue burden on that right.” 

- Holley-Walker, Danielle (dean of the Howard University School of Law). "The Supreme Court’s Abortion Ruling: Explaining What It Means for the Law and for Women in America." The Dig, 29 June 2022


In the wake of last week's historic Supreme Court ruling, reproductive rights are today at the forefront of political debate. They are sure to be a focal point in the upcoming election season. 

New statutes have already gone into effect in some states. Some limit access to or ban abortions outright. Mandatory waiting periods have been implemented in a number of states, and some have even required women to receive an ultrasound before they can have one. 


State constitutions often offer broader rights than the U.S. Constitution

Like the U.S. Constitution, no state's constitution explicitly includes a right to abortion (or other reproductive rights, like the use of birth control). But many describe rights to life, liberty and the pursuit of happiness. Others demand equal protection under the law.

And, unlike the U.S. Constitution, 11 states explicitly guarantee a right to privacy, an important legal underpinning of the original Roe decision in 1973.

It is expected that 26 states may end up passing laws that almost completely outlaw abortions. Thirteen states have what are known as “trigger” laws, laws that immediately went into effect after Roe v. Wade was overturned. Since Friday, eight states have banned abortion altogether. In Virginia, the governor is already seeking to ban abortions after 15 weeks of pregnancy.


Gone into effect or will soon

Restrictive abortion laws are in effect in at least six states after the court handed down its ruling: Arkansas, Kentucky, Missouri, Oklahoma, South Dakota and Wisconsin.

In Wisconsin, the Republican-controlled state legislature declined last Wednesday to repeal an 1849 state law banning abortion during a special session called by Democratic Gov. Tony Evers -- allowing it to take effect again after the high court overturned Roe.

And in Mississippi, the trigger law was certified on Monday by Attorney General Lynn Fitch, according to a statement from her office. Mississippi law states that within 10 days of the state attorney general confirming Roe has been overturned, abortions are prohibited in the state. Limited exceptions are provided in cases of rape or when the procedure would preserve the pregnant person's life. The state passed a separate 15-week abortion ban in 2018, which was the law at the center of the case the Supreme Court ruled on last week. In Mississippi, Jackson Women's Health Organization — the abortion clinic at the center of the Dobbs case — filed a new lawsuit Monday stating "Mississippians still have a separate and independent right to privacy under the Mississippi Constitution that the Mississippi Supreme Court held encompasses a right to abortion," the lawsuit states, citing a 1998 decision by the state court that remains legally binding, the clinic's lawyers argue.

Courts in conservative states like Montana and Tennessee, for example, have struck down laws designed to limit abortions by imposing waiting periods or onerous regulations for clinics.


Awaiting state or court action

In Wyoming, the state's "trigger law" takes effect five days after the governor certifies the Supreme Court's decision.

In North Dakota, a 2007 abortion ban takes effect 30 days after the law is certified by the state attorney general to the Legislative Council, a nonpartisan arm of the state's legislature.

Idaho, Tennessee and Texas have laws that take effect 30 days after the Supreme Court issues a judgment separate from the opinion issued last week. Attorneys general in Texas and Idaho say it could take an additional 30 days for the judgment to be issued and the laws to take effect.


In legal limbo

In Louisiana, a state district judge on Monday temporarily blocked the state from "enforcing or implementing" an abortion ban that had gone into effect immediately following the Supreme Court's ruling. The law was challenged by the Center for Reproductive Rights and Boies Schiller Flexner LLP on behalf of Hope Medical Group for Women and Medical Students for Choice, which argued that the ban is unconstitutionally vague.

In Utah, Planned Parenthood filed a lawsuit arguing that the state's trigger ban violates seven different sections of the Utah state constitution. A judge has temporarily blocked Utah's abortion ban as a result of the lawsuit — allowing abortions there to resume for 14 days.

In August, voters in Kansas will become the first to consider an amendment that expressly declares no right to abortion in the state's constitution in a post-Dobbs political reality. Kentucky will vote on another in November. In Kentucky, the ACLU has appealed to that state's legal traditions of privacy and self-determination.

In Kansas, the state's supreme court voted in 2019 to find a right to abortion in the state constitution's "life, liberty and pursuit of happiness" clause. That ruling remains in effect today — meaning abortion is legal in Kansas despite Dobbs. That could change if voters approve the amendment in August.

Four states and the District of Columbia have already codified the right to abortion throughout pregnancy, according to the Guttmacher Institute, a research group that advocates for abortion access. That includes New Jersey and Colorado, which passed those measures earlier this year.

In Vermont, voters in November will consider a first-of-its-kind constitutional amendment guaranteeing "personal reproductive autonomy." On Monday, in the wake of the Dobbs decision, legislators in California approved a similar ballot measure to put to voters in November.

An abortion-rights group in Michigan backed by the ACLU, is working to gather enough signatures to do the same there.

Georgia anti-abortion law likely to remain on hold through at least mid-July. Reproductive rights groups and abortion providers sued Georgia in 2019 after the Legislature passed an abortion law outlawing the procedure in most cases once a doctor can detect fetal cardiac activity, typically about six weeks into a pregnancy and before many women know they are pregnant. In July 2020, a federal judge struck down the Georgia law, leading to the appeal before the 11th Circuit Court of Appeals. 

Georgia Attorney General Chris Carr filed paperwork in federal court last week asking the judges to allow the law to go into effect.The court asked attorneys to file legal briefs that “address the effect, if any, the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization has on this appeal.” Attorneys have until July 15 to submit the filings. Once attorneys file the briefs, the federal appeals court could uphold Georgia’s anti-abortion law or the three-judge panel could return the case to U.S. District Judge Steve Jones in Atlanta, who struck down the Georgia statute in 2020, with instructions to uphold it.


Pauses on other restrictive abortion bans dissolved

In addition to the so-called trigger laws taking effect, a number of states have dissolved court orders blocking the enforcement of restrictive abortion laws in light of the high court's ruling.

A federal judge in Alabama granted an emergency motion on Friday to end an injunction against Alabama's "Human Life Protection Act" after the Supreme Court issued its opinion. The motion was filed by Alabama Attorney General Steve Marshall, who argued that the injunction the court had entered against enforcement of the act because it "contravenes clear Supreme Court precedent" was no longer in effect with the high court overturning Roe.

Ohio Attorney General David Yost announced Friday that the injunction blocking his state's abortion ban was dissolved, saying in a tweet: "The Heartbeat Bill is now the law."

A federal judge in South Carolina on Monday lifted a hold the court had placed on the state's ban on abortions after about six weeks, allowing South Carolina to enforce its so-called heartbeat law. Attorney General Alan Wilson announced shortly afterward that the law was now in effect.

Topics: State Legislation, Legislative News