The last few days have seen a flurry of activity amid states reckoning with the Supreme Court decision negating the constitutional right to abortion.
Courtroom battles over abortion access have been ramping up: judges recently postponed the implementation of abortion bans in some states, and allowed others to go into effect. Meanwhile, red state leaders have pushed new restrictions, as some blue states enacted fresh protections for abortion providers. And the Court’s decision overturning Roe v. Wade, Dobbs v. Jackson Women’s Health Organization, is already having dire effects, causing clinic closures and forcing people to travel to obtain abortions.
Several states’ trigger laws banning or severely restricting abortion access have gone into effect since Roe was overturned on June 24; other states’ bans will go into effect imminently. Variation in when these bans will be enacted, as well as the volume of court challenges seeking to stay and overturn them, are causing confusion and distress for providers, advocates, and patients alike, as some people are unable to get abortion care in their state even in dire circumstances.
While Dobbs determined that states can regulate abortions before fetal viability, not every state that is likely to enact limits has yet. Indiana’s governor, for example, has called a special session of the legislature to enact new abortion bans “in short order,” though abortions are legal in the state for now. Trigger laws in some states, like Idaho and North Dakota, haven’t yet gone into effect. In the meantime, providers in these states are already making plans for what happens next — whether that means shutting their doors, seeing as many patients as possible, or planning to move across state lines.
In other instances, providers’ ability to perform legal abortions can change from day to day as legal challenges to trigger laws from abortion rights advocates change the status of abortion access.
In Kentucky, for example, the state’s two abortion providers suspended abortion services immediately after the Dobbs decision came down, but they were able to resume abortion care by Friday after abortion-rights groups sought a temporary restraining order against the state’s trigger law and a further law banning abortions after six weeks. And adding to the complexity is the fact that in states like Texas, Idaho, Louisiana, West Virginia, and Arizona, the Associated Press’s Rebecca Boone and Claire Rush report, older bans are conflicting with newer legislation, creating broad confusion about what’s legal and what’s not when it comes to abortion care.
Essentially, the first week following the overturn of Roe has been a chaotic one that’s often left immediate access in a state of uncertainty and long-term access under new attack in many red states. And it’s also been one that’s seen states under Democratic control scramble to expand access through new legislation.
Bans are taking effect, but how and when is still unclear
On Friday, abortion rights advocates in Texas and Ohio experienced defeats in their efforts to suspend the bans those states have enacted, days after a South Carolina law criminalizing abortion after six weeks of pregnancy went into effect.
Texas Attorney General Ken Paxton (R) cheered a decision by the state’s Supreme Court to issue a stay on a lower court decision that allowed abortions in the state to continue while a lawsuit against the state’s ban proceeds.
Pro-life victory! Thanks to my appeal, SCOTX has slapped down the abortion providers and the district court carrying their water. Our state’s pre-Roe statutes banning abortion in Texas are 100% good law. Litigation continues, but I’ll keep winning for Texas’s unborn babies. pic.twitter.com/xgQuDtEXQu
— Attorney General Ken Paxton (@KenPaxtonTX) July 2, 2022
The law at the center of the lawsuit dates from 1925; it both bans abortion and allows providers convicted of performing abortions to be punished with at least two years’ prison time.
The law was never repealed even after Roe v. Wade, and it’s separate from two abortion laws Texas enacted in 2021: one criminalizing abortions except in extremely limited circumstances, and another allowing private citizens to sue abortion providers and those who assist people trying to obtain an abortion.
After a brief reprieve in which Texas clinics were allowed to perform abortion procedures, Whole Woman’s Health clinics in Texas announced Saturday their four clinics in the state would no longer provide abortion care.
“With the pre-Roe ban reinstated, Whole Woman’s Health is forced to cease providing abortion in our 4 Texas clinics,” the group wrote on Instagram. “This morning, our clinic staff embarked on the heartbreaking conversations with the patients whose appointments must be cancelled, and our clinics have started the wind down process.”
The lower court order allowed clinics to perform abortions until at least July 12 — when the next arguments in the case will be heard, offering a brief window until the state’s trigger law takes effect, 30 days after the Dobbs decision. Texas clinics were able to perform some abortions before the Supreme Court’s decision. The Washington Post’s Caroline Kitchener and Meryl Kornfeld reported that an Austin-area clinic performed 10 abortions Tuesday, calling patients who had just had to cancel their appointments and make alternate arrangements and urging them to come in “as soon as you can.” That reprieve is over, at least for now.
Also on Friday, Ohio’s Supreme Court decided it won’t block that state’s six-week abortion ban, a trigger law passed in 2019, as lawsuits challenging it move through the courts.
That law has no provisions for abortion care in the case of rape or incest, and this month meant that a 10-year-old victim of sexual abuse was unable to get an abortion, according to the Indianapolis Star. The child reportedly had to travel to Indiana to receive care. One Indiana abortion provider told Star reporters Shari Rudavsky and Rachel Fradette that her clinic was receiving “an insane amount of requests” for abortion care from people in nearby Kentucky and Ohio, both states where trigger laws went into effect after the Dobbs decision, though Kentucky’s law is blocked by a court order for now.
Though Kentucky’s abortion rights are safe for the moment, state Attorney General Daniel Cameron has attempted to strike down the restraining order keeping the state’s trigger law and six-week abortion ban from going into effect; its citizens will vote on the constitutional right to abortion in November.
It’s not just Texas and Ohio — legal challenges to abortion restrictions abound
Laws in several other states are facing legal challenges as well.
A Utah judge, for example, granted a 14-day restraining order blocking the state’s trigger laws from taking effect after the Planned Parenthood Association of Utah sued on the grounds that the law violates multiple rights granted by Utah’s constitution, including equal protection rights.
In Idaho, where around three dozen sometimes conflicting anti-abortion laws are on the books, Planned Parenthood Great Northwest, which operates a clinic in the state, sued to keep Idaho’s trigger law from being enacted, arguing that it violates Idahoans’ right to privacy under the state constitution. Similarly, a challenge to Mississippi’s trigger law claims abortion is protected in Mississippi’s constitution under its right to privacy.
Meanwhile, an Oklahoma lawsuit seeks to block two separate pieces of anti-abortion legislation there, saying both laws — including a law allowing private citizens to sue abortion providers who perform abortions after six weeks of pregnancy and a law originally enacted in 1910 — violates the Oklahoma Constitution’s guarantee of individual liberty.
A lawsuit in their state has Floridians in uncertainty about what’s legal. Thursday, a judge suspended Florida’s 15-week abortion ban; the ban’s opponents argue that it violates the state’s constitution. The law went into effect Friday, however, because that judge has yet to sign an injunction formally putting its implementation on hold. That means abortions are now banned after 15 weeks in Florida, but soon won’t be, at least temporarily.
Legislatively, abortion policy is in flux as well: While Indiana is currently serving as an oasis for its neighbors, abortion providers are by no means safe themselves; the state legislature will meet July 25 to discuss the state’s abortion policy.
In Arizona, state leaders are battling over which draconian law will determine abortion policy in the state — a ban from 1901, before Arizona was a state, or another passed in March of this year which outlaws abortions after 15 weeks.
Attorney General Mark Brnovich (R), who is running for the US Senate, claims that the 1901 law is enforceable and the law of the land, which conflicts with Gov. Doug Ducey’s claim that the March law overrides the pre-statehood ban. However, the bill’s authors say a provision allows for the 1901 law to take effect until the 15-week ban is enacted in September.
Some states are rushing to enact stronger protections
As restrictions intensify, progressive states like New York and California are acting to legally enshrine the right to abortion, whether by ballot measure or legislative process.
Both of New York’s legislative chambers passed the Equal Rights Amendment on Friday, which would provide far-ranging protections against discrimination based on many characteristics including sex. If the amendment is fully enacted, it will protect pregnant people and their access to abortion and contraception, the New York Times’ Grace Ashford reports.
The bill passed during an extraordinary session of the legislature convened by New York Gov. Kathy Hochul (D) to address the US Supreme Court’s new restrictions on gun laws, and come after the state passed a package of bills to protect abortion access anticipating the Dobbs decision.
Despite New York’s liberal reputation and Hochul’s support for the measure, it still faces an uphill battle before it’s enshrined into law as an amendment to the state constitution. Any amendment must pass two separate legislatures and then go to the voters as a referendum, which New York Democrats hope to accomplish in 2024, according to the Times. Though the legislature tried to pass the amendment during the regular legislative session, religious groups foiled that effort over concern that religion wasn’t written into the amendment as a protected class.
New York already has strong abortion protections written into law; in 2019, legislators codified the protections granted under Roe into state law, in addition to the further measures approved during the 2022 session. However, a constitutional amendment would be much more difficult to overturn should future leadership seek to do so.
As cafemadrid’s Nicole Narea reports, both Vermont and California will also give voters the chance to enact constitutional amendments protecting abortion access this November, and abortion rights advocates in Michigan and Arizona are attempting to do the same by gathering enough signatures to petition to put such measures on the ballot in those states.
But even in states where there is broad and historical support for abortion rights, Dobbs showed it’s not safe to assume that settled law is, in fact settled. That’s why, in addition to laws protecting abortion access, whether already on the books or recently passed, states are moving quickly to to ensure constitutional protections.
Some Democratic states are also pursuing a quicker route to abortion protections. Friday, both Connecticut and New Jersey advanced laws meant to protect abortion providers.
Connecticut’s law, which the state’s Gov. Ned Lamont (D) has promised to sign, greatly expands the list of practitioners who can become abortion providers and tries to shield providers from the potential legal risks that come with giving abortion care to patients who’ve traveled from states where abortion is illegal. It bars state law enforcement from cooperating with their counterparts in states that have banned abortion, and creates a countersuit protocol for providers to follow if they’re sued for providing care.
New Jersey Gov. Phil Murphy (D) signed two abortion rights bills into law Friday, one banning provider extradition, and another that restricts access to abortion patients’ medical data and that prohibits state agencies, including state law enforcement, from cooperating with states trying to punish their residents for traveling for abortion care. The new laws arrived on Murphy’s desk just days after he approved a state budget that set aside money meant to help the state’s abortion providers prepare for an influx of out-of-state patients.
The post-Dobbs era is likely to be chaotic legally
The legal landscape surrounding abortion following the Dobbs decision will only become more complex if states enacting bans try to enforce them even where abortion remains legal, as legal scholars David Cohen, Greer Donley, and Rachel Rebouché write in “The New Abortion Battleground,” a forthcoming research paper in the Columbia Law Review.
“The interjurisdictional abortion wars are coming,” the paper’s introduction warns, meaning that as states begin enacting their post-Dobbs abortion laws, challenges over which court and what state has jurisdiction over things like traveling to obtain an abortion or purchasing mifepristone and misoprostol (commonly known as the abortion pill) to end an early pregnancy.
“Instead of creating stability and certainty,” the authors argue, the Dobbs decision ”will lead to profound confusion because advocates on all sides of the abortion controversy will not stop at state borders in their efforts to apply their policies as broadly as possible.”