The fight for abortion moved to the provinces on Monday as a weekend of furious protest and prayerful thanksgiving followed the reversal of the Supreme Court Roe v. Wade gives way to coast-to-coast wave of lawsuits, legislation and political fights in progress.
With conservatives in about half of the states moving swiftly to end or dramatically restrict reproductive rights, and liberals in about 20 others scrambling to keep them, the national debate suddenly split into contentious patchwork, with lawmakers and legislators sharing state constitutions and statutes after Friday. ruling in Dobbs v. Jackson Institute of Women’s Health.
“It’s all about the provinces from now on,” said Jessie Hill, a law professor at Case Western Reserve University who has worked on abortion rights cases. “We can fantasize about federal solutions to this issue or national settlements of the abortion question, but I think after Dobbs, I don’t see many possibilities at the federal level.”
Abortion rights advocates in Kentucky, Idaho, Louisiana, Mississippi and Texas on Monday sued to suspend or suspend abortion bans after a similar court challenge was filed in Arizona over the weekend. South Atlantic’s Planned Parenthood moved to withdraw a federal court challenge to a ban in South Carolina, but apparently only so that the organization could file a new challenge in state courts.
To understand why, we only need to look at Louisiana and Utah, where judges on Monday blocked enforcement of laws that would have temporarily banned abortion. Abortion rights advocates combine around a strategy of asking courts for temporary injunctions that can at least allow abortions to go ahead in the short term. One of Louisiana’s three clinics already said Monday it would reopen.
Supporters of abortion rights protest outside the Supreme Court in Washington on Monday, June 27, 2022. (The New York Times)
While the actions with the most direct potential effects occurred in provinces with bans or restrictions, provinces that support abortion rights moved Monday to strengthen their protections. In California, a predominance of state legislators placed a constitutional amendment on the ballot in November to specifically protect abortion rights for the state’s 40 million people. In Washington, Governor Jay Inslee said he would pursue a change in the constitution of that state to make abortion rights permanent.
In states seeking to ban abortions, the legal battles are accelerating.
Hill is part of a team of lawyers who challenge in federal court an Ohio law that bans abortions after about six weeks of pregnancy. A judge allowed that law to take effect after the Supreme Court ruling. But Hill said she believes protections for individual rights in the Ohio Constitution could lead to a compelling argument that abortion is protected in the state.
In Florida, providers on Monday used similar arguments at a court hearing, arguing that privacy rights in the state constitution pre-empt a new state ban on the procedure after 15 weeks of pregnancy.
A Louisiana district court temporarily blocked so-called trigger laws that would have criminalized nearly all abortions after health providers argued the bans were unenforceable and vague and violated the state constitution. In Utah, the judge said he would block enforcement of a temporary abortion ban in that state.
“There is irreversible harm shown,” said Judge Andrew Stone in announcing a temporary restraining order that will be in force for two weeks. Clinic lawyers seeking the order said they had 28 women waiting for an abortion appointment on Monday.
But even as lawsuits were filed, opponents of abortion moved to introduce restrictions. In Mississippi, the state attorney general officially recognized the Supreme Court ruling, starting a 10-day clock after which nearly all abortions will be banned. In South Carolina, a measure banning abortion about six weeks of pregnancy seemed likely to take effect after an abortion provider asked a federal judge to withdraw a lawsuit that blocked the law from coming into effect. And in Indiana, the attorney general asked courts to allow the state to enforce several laws, including one prohibiting abortions sought because of race, gender, or disability.
Anti-abortion advocates are praying as they demonstrate outside the Supreme Court in Washington on Monday, June 27, 2022. (The New York Times)
“I believe in building a culture of life in Indiana,” Attorney General Todd Rokita said in a statement. “That means protecting the lives of unborn babies and protecting the physical, mental and emotional well-being of their mothers.”
As states absorbed the end of a half-century-old set of reproductive rights guaranteed by the US Constitution, the most striking effect was the speed at which it was intensifying an already expanding political divide.
On Monday, attorneys general in 21 provinces and the District of Columbia issued a joint statement reassuring out-of-state patients that they would protect their access to abortion. The provinces represented included New Mexico, North Carolina and Minnesota, which could see more patients from neighboring provinces with abortion bans.
That comes after attorneys general in 19 other provinces last week jointly asked the U.S. Justice Department to protect anti-abortion organizations from violence. The states represented included Florida, Ohio and Texas.
Brigitte Amiri, deputy director of the Reproductive Freedom Project at the American Civil Liberties Union, warned that court challenges, while important, were not the panacea for abortion rights supporters. Even in places where they find relief in trial courts, they face a difficult long-term legal and political landscape.
The state Supreme Courts in many places have restrictive abortion laws dominated by Republican or Republican-appointed magistrates. And even if some abortion restrictions are deemed unenforceable, legislatures can try to pass new laws and voters can try to amend their state’s constitutions.
“As we have often said, the courts are not going to be able to rescue us,” said Amiri. “That was true even when Roe was the law — you needed all the equipment in the toolbox then. But I think even more so now. We have to diversify what we do in trying to secure abortion access. ”
