Abortion Rights Votes Kick Off Flood of State Legal Fights (1)

The implementation of reproductive rights measures approved by voters in seven states will be shaped by litigation to either strengthen the constitutional amendments or limit their impact.

The ACLU of Missouri and Planned Parenthood affiliates filed a lawsuit Wednesday to overturn Missouri’s abortion ban and other restrictions one day after voters approved a reproductive rights amendment. Affiliates across the country are also considering litigation, targeting other states’ parental consent statutes, Medicaid funding restrictions, and other limits they say conflict with the measures—most of which protect abortion until fetal viability, or roughly 24 weeks into pregnancy.

Attorneys also expect lawsuits questioning the processes campaigns used to get these measures on the ballot and arguing the amendments are eclipsed by a fetus or embryo’s right to life.

This means abortion laws in these states could remain unsettled for months as the country continues to face a patchwork of reproductive health regulations more than two years after the US Supreme Court overturned the constitutional right to abortion.

“Nothing would happen automatically” after the votes to state abortion bans and other restrictions, said Mary Ziegler, a professor at the University of California, Davis School of Law focused on reproductive health care.

“There would have to be a legal challenge,” Ziegler said in an interview.

In Michigan, the legislature repealed some restrictions on abortion, including a 1931 total ban on the books, after voters passed protections there in 2022. But abortion providers in the state and in Ohio, where a judge last month permanently struck down the state’s six-week ban, have taken to the courts to directly weigh in on the constitutionality of lingering restrictions.

“Ballot measures themselves often do not speak directly to their interpretation or enforcement, including their legal effect on existing laws that ban or otherwise severely restrict access to abortion care,” said Rebecca Reingold, an associate director at Georgetown University’s O’Neill Institute for National and Global Health Law.

In June, a Michigan judge blocked the state from enforcing multiple abortion-related requirements, including a 24-hour waiting period and mandatory counseling. The ACLU is now a challenging the state’s ban on Medicaid coverage for abortions.

Voters in Arizona, which currently bans most abortions after 15 weeks of pregnancy, backed a constitutional amendment Tuesday (Prop. 139) to guarantee access until viability and in situations to protect the life or health of the pregnant person.

Amanda Mollindo, spokesperson for ACLU Arizona, said in an email ahead of the vote that the organization plans to “use every tool available to ensure access to care,” including “litigation, executive advocacy, or legislative repeal.”

After the abortion rights measure was approved in Missouri, Planned Parenthood providers asked a Missouri Circuit Court to put a pause on its total abortion ban and other restrictions, including a mandatory 72-hour waiting period between counseling and an abortion, before the amendment takes effect Dec. 5.

“Whether, when, and to what extent we can offer abortion services in Missouri will ultimately depend on the courts,” Emily Wales, president and CEO of comprehensive health of Planned Parenthood Great Plains, and Richard Muniz, interim president at CEO, Planned Parenthood Great Rivers, said in a joint statement over email.

An abortion rights amendment passed in Montana, where abortion is already allowed until fetal viability. Ashley All, communications director for Montanans Securing Reproductive Rights, said the vote is expected to strengthen litigation brought by Planned Parenthood of Montana challenging various abortion restrictions.

Planned Parenthood has received funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg, the majority owner of Bloomberg Government’s parent company. Michael Bloomberg donated $1 million each to Arizona for Abortion Access and the abortion rights measure group Missourians for Constitutional Freedom, and $750,000 to the ballot measure organization Coloradans for Protecting Reproductive Freedom, according to campaign finance filings.

Opposition Challenges

Groups opposed to the amendments are also likely to fight.

“The notion of ballot amendments to short circuit the legislative process is one fraught with its own level of difficulties, and which comes with it a promise of increased litigation,” Sarah Parshall Perry, a senior legal fellow at the Heritage Foundation, said in an interview.

Michigan’s government is still battling a legal challenge to the state’s 2022 amendment. Michigan Right to Life argues in that case that the measure created a “super-right” to “reproductive freedom,” outside “the checks and balances of a republican form of government.”

Opposition groups had already begun setting the stage for legal challenges in states where abortion rights amendments ended up failing to pass Tuesday.

An abortion rights measure on the ballot in South Dakota (Amendment G) failed to reach the 50% threshold required to amend the state’s constitution. The anti-abortion group Life Defense Fund brought a pre-election challenge to the amendment, arguing the group behind the measure, Dakotans for Health, collected invalid petition signatures and that the vote for Amendment G shouldn’t be certified.

South Dakota state Rep. Jon Hansen (R), co-chair of the Life Defense Fund, said in an emailed statement that the organization “will be discussing the lawsuit with our legal team to consider the aspects of the case that still can move forward.”

Attorneys at the Catholic law firm Thomas More Society who unsuccessfully challenged Amendment 3’s placement on the Missouri ballot said after the election results that they are prepared to litigate further.

“We stand ready to help defend the rights of Missouri’s parents, women, children, and babies, against the assaults that are planned by the proponents of Amendment 3,” Thomas More Society Senior Counsel Mary Catherine Martin said in an emailed statement.

In Arizona, a legal challenge would go before state justices who in August upheld voter pamphlet summary language that used the phrase “unborn human being” in a description of Prop. 139, and earlier this year decided to reinstate an 1864 abortion ban that was later repealed by the state legislature.

While question marks surround the immediate effects of the abortion rights votes, Perry said groups on both sides will want courts to weigh in quickly.

“This is going to be a very fast-moving field,” Perry said.