Health Care

Abortion fight shifts from state house to court house

Visitors tour the Supreme Court in Washington, Monday, Sept. 25, 2023. (AP Photo/J. Scott Applewhite)

The heated fight over access to abortion and reproductive care is moving from the state house to the court house in 2024, as rights advocates challenge dozens of laws adopted in the wake of the fall of Roe v. Wade.

At least 38 cases have been filed challenging abortion bans in 23 states, of which 24 remained pending at either the trial or appellate levels, according to a state litigation tracker from the Brennan Center for Justice and the Center for Reproductive Rights.

Those figures include four states – Utah, Wyoming, Iowa, Wisconsin and Ohio – where bans remained temporarily blocked by state courts. 

The legal challenges are playing out as the U.S. Supreme Court prepares to take another case that could determine the whether mifepristone, the drug used in the majority of abortions performed throughout the country, should still be easily accessible.

Here’s an overview of the most significant challenges to state abortion laws in the year and a half since the U.S. Supreme Court overturned the constitutional right to an abortion, according to the Network for Public Health Law and other legal experts tracking abortion-related cases:

General constitutional challenges: Several challenges to state abortion bans have pointed to state constitutions that have been interpreted to guarantee the right to an abortion. 

Before the Supreme Court’s decision striking down the Roe precedent, in a case called Dobbs v. Jackson Women’s Health Organization, ten state supreme courts had recognized a right to an abortion in their respective constitutions. Those rulings have undergirded challenges to post-Dobbs bans in several states, including Utah and Wyoming, where courts have issued temporary injunctions against enforcing bans while the cases are pending. 

Challenges to Wyoming’s abortion restrictions also reference a 2012 constitutional amendment declaring that adults have the right to make their own health care decisions. That was one of several constitutional amendments passed by conservative states in the wake of the 2010 Affordable Care Act. 

In Oklahoma, the state Supreme Court has found that the state constitution guarantees a right to an abortion when the mother’s life is at risk and placed temporary injunctions on three of the state’s five new abortion laws, leaving intact a statute from 1910 prohibiting abortion except to save the life of the mother.

In other states, including Kentucky, Florida and Idaho, restrictions have remained in place while courts have considered constitutional challenges.  

Religious freedom: In some states, members of various religious groups have joined forces to argue that their religion requires abortion in certain circumstances that go beyond the life-threatening emergencies covered in some state statutes.

That includes a case in Indiana, where plaintiffs who practice Judaism, Islam, and Unitarian Universalism are arguing that a total abortion ban violates the state’s Religious Freedom Restoration Act because their religious beliefs would direct them to seek abortion care in cases where their mental or physical health is at risk, which are not allowed under the state statute. 

The court has issued a narrow injunction granting a temporary religious exemption from the state’s ban but has not clarified who would qualify. 

Patients: Several lawsuits have been filed in recent weeks by patients arguing that their rights were violated by bans that forced them to continue pregnancies despite harrowing complications. Those include the high-profile case of Katie Cox, who asked for an exception to Texas’ abortion ban when she learned the embryo she was carrying would almost certainly die from a genetic condition. 

Cox ultimately left the state for an abortion, but an anonymous woman in Kentucky has since filed a similar suit. Several dozen women in Kentucky, Texas, Tennessee and Idaho who previously experienced complications are awaiting decisions in cases that could expand their state’s exceptions to abortion bans, according to the Washington Post.