Leslie A. Farber
Abortion Rights: What Comes Next?
For women and families, the impact of the Supreme Court’s ruling to overturn Roe V. Wade and revoke the federal constitutional right to abortion is immeasurable. It is rare for the court to take away a constitutional right, and the decision not only sparked marches and protests across the country, but it launched a wave of legal, legislative, and political disputes.
Without the federal right to abortion, many of the battles are taking place at the state level. Anti-abortion forces are pushing for near-total bans in every state in the country; abortion rights groups are vowing to fight back in state courts while pushing the federal government to do more to protect reproductive rights.
About half of states are expected to ban abortion in the near future. Some laws went into effect immediately, some will require additional action to put the law into effect, and some states plan to pass new laws. Anti-abortion rights states such as Missouri are modeling legislation after the Texas law that went into effect in September allowing private lawsuits against out-of-state abortion providers.
At the same time, many pro-abortion rights states moved quickly to ensure safe harbor for those seeking reproductive healthcare. In Massachusetts, the governor signed an executive order forbidding any executive agency from cooperating in abortion investigations. California’s governor signed a bill seeking to protect from civil liability anyone providing, aiding or receiving abortion care in the state. And New York Gov. Kathy Hochul signed legislation that shields providers and patients from civil liability in connection with abortion-related claims from out of state. The law also prohibits state courts from cooperating in civil or criminal lawsuits stemming from legal abortions in New York and prohibits law enforcement from cooperating with anti-abortion states’ investigations.
Legal disputes between the states are not uncommon. For example, cannabis is legal in some states and illegal in others. But no other recent issue comes close in terms of its implications, and the result is likely to be countless clashes between state law enforcement agencies and court systems.
The importance of state courts and constitutions has never been greater. They may offer stronger and expanded legal grounds for protecting abortion rights, and shield access to abortion in highly restrictive parts of the country. Several court challenges to abortion bans have focused on state constitutions, particularly those which include a right to privacy. Alaska, Arizona, California, Florida, Hawaii, Illinois, Louisiana, Montana, New Hampshire, South Carolina, and Washington all have such provisions.
In states with bans or restrictions, abortion rights advocates are asking courts for temporary injunctions that will allow abortions to proceed in the short term. Challenges were filed in Kentucky, Idaho, Louisiana, Mississippi, and Texas to halt or delay bans on abortion after a similar court challenge was filed in Arizona.
Votes also can influence reforms via ballot initiatives. A supermajority of state lawmakers in California placed a constitutional amendment on the November ballot to explicitly protect abortion rights. In Michigan and Vermont, efforts are underway to enshrine the right to reproductive freedom in their state constitutions. And Washington Gov. Jay Inslee said he would pursue a change in that state’s constitution to make abortion rights permanent.
Conversely, proposed state constitutional amendments to take away abortion rights are on the ballot in Kansas in August, and in Kentucky in November.
Many opponents of abortion are now focusing on preventing access to abortion pills, which are used in about half of pregnancy terminations. Attorney General Merrick Garland has said that states may not ban Food and Drug Administration-approved abortion medications on the grounds that they are dangerous. But it is not clear if the federal government can force states to allow people to receive the drugs from other states through the mail. (The federal government regulates the mail, but states regulate doctors and pharmacies.)
All of this is taking place at a time when there is broad public disapproval of the Supreme Court decision. A CBS News/YouGov poll conducted immediately after the ruling showed that Americans considered it a “step backward” for the nation by more than a 20 percentage-point margin. Nearly 60% of Americans and two-thirds of women disapproved of the ruling, and 58% said they would approve of a federal law that makes abortion legal.
In the midst of the ongoing turmoil surrounding reproductive rights, we are here to answers your questions and address your concerns. Do not hesitate to contact us at 973.707.3322 or LFarber@LFarberLaw.com.
The contents of this writing are intended for general information purposes only and should not be construed as legal advice or opinion in any specific facts or circumstances.