The Long Battle After the Vote: Abortion Rights Litigation and the Shifting Legal Landscape
Ten states have enshrined abortion rights in their constitutions since the Supreme Court overturned Roe v. Wade, but the fight for access is far from over. A surprising reality is emerging: simply amending a state constitution doesn’t automatically dismantle existing restrictions. Instead, it initiates a complex and often protracted legal battle, one where even victories can be temporary, and advocates find themselves playing a frustrating game of legal whack-a-mole.
The Post-Roe Legal Maze: Amendments vs. Restrictions
The core issue is that constitutional amendments establish a right to abortion, but they don’t automatically invalidate pre-existing laws like mandatory waiting periods, biased counseling requirements, or restrictions on medication abortion. These laws must be individually challenged in court, with advocates arguing they violate the newly affirmed constitutional right. This process can take years, leaving individuals seeking abortion care facing significant hurdles even in states where voters have explicitly protected access.
Adding to the complexity, conservative state legislatures are increasingly responding to court rulings that strike down restrictions by simply passing new, similar laws. This forces advocates to continually amend existing lawsuits or file new ones, extending the legal battles and delaying full access to care. The situation in Missouri, where a preliminary injunction blocking restrictions was lifted only to be reinstated after further court action, exemplifies this frustrating cycle.
State-by-State Breakdown: Where the Battles Stand
Currently, legal challenges are unfolding across the country, with varying degrees of success. Here’s a snapshot of the key states:
Arizona
Arizona’s November 2024 amendment protects abortion rights before fetal viability, but challenges are underway against restrictions like mandatory counseling, 24-hour waiting periods, and a ban on telehealth. A ruling is still pending.
Michigan
Michigan’s 2022 amendment offers broad reproductive freedom protections. While a trial court blocked a 24-hour waiting period and restrictions on physicians, the state supreme court is yet to rule on these issues. Separate lawsuits challenge the exclusion of abortion coverage from Medicaid.
Missouri
Missouri’s experience highlights the volatility of the situation. A trial court initially blocked pre-viability bans, but the state Supreme Court intervened, reinstating restrictions before another trial court ruling again blocked them. The case is currently appealed to the Missouri Supreme Court, demonstrating the back-and-forth nature of these legal battles.
Ohio
Ohio’s amendment, passed in 2023, is facing challenges as well. Trial courts have temporarily blocked restrictions like waiting periods and telehealth bans, but the legal process is ongoing. Attempts by some legislators to limit judicial review of the amendment have so far failed.
Beyond Amendments: Relying on Precedent
States like Alaska and Kansas, without specific constitutional amendments, are leveraging previous state supreme court rulings that established a right to abortion. In Alaska, advocates are challenging restrictions on who can provide abortions, building on a 1997 ruling. Kansas is similarly using a 2019 ruling to challenge a 24-hour waiting period and restrictions on advanced practice registered nurses. However, this approach is inherently less secure, as future court compositions could overturn established precedent – a stark reminder of the fate of Roe v. Wade itself.
Montana: A Dual Approach
Montana presents a unique case, with both a 1999 state supreme court ruling and a 2024 constitutional amendment protecting abortion rights. Providers are currently relying on the existing precedent in a challenge to Medicaid coverage restrictions, even with the new amendment in place.
The Future of Abortion Access: A Long-Term Struggle
The current legal landscape reveals a critical truth: securing abortion rights through constitutional amendments is just the first step. The real work lies in the arduous process of dismantling existing restrictions through litigation. This process is not only time-consuming and expensive but also vulnerable to political interference and shifting court compositions.
Looking ahead, we can expect to see several key trends emerge. First, the focus will increasingly shift to challenging restrictions on medication abortion, particularly as telehealth options expand. Second, states with strong constitutional protections will likely become “safe havens” for individuals seeking abortion care from restrictive states, potentially straining resources and infrastructure. Third, the legal battles will likely intensify, with conservative groups seeking to narrow the scope of constitutional protections through strategic litigation. The Guttmacher Institute provides ongoing analysis of these trends: https://www.guttmacher.org/
Ultimately, the fight for abortion access is evolving into a long-term legal and political struggle. While constitutional amendments represent significant victories, they are not a guarantee of access. Continued advocacy, strategic litigation, and sustained political engagement will be essential to ensure that the promise of these amendments is fully realized.
What strategies do you think will be most effective in overcoming these ongoing legal challenges? Share your thoughts in the comments below!
