Longstanding abortion restrictions like waiting periods and provider regulations are now under legal attack in states where Roe v. Wade’s reversal prompted voters to amend their state constitutions to protect abortion rights.
Abortion rights advocates in Ohio and Michigan have pivoted off of successful ballot initiatives in those states to challenge abortion restrictions that had been in effect before the Supreme Court eliminated the constitutional right to obtain an abortion in 2022.
In Ohio, the ACLU has used the recent amendment to that state’s constitution to boost lawsuits attacking abortion restrictions. One of those cases is challenging laws that made it harder to access abortion pills. Another is targeting Ohio’s 24-waiting period and related abortion regulations.
In Michigan, a lawsuit brought by another reproductive rights group is seeking to strike down that state’s 24-hour waiting.
Abortion rights advocates say the robust language that is in amendments in Michigan and Ohio reflects voters’ pushback not just to the 2022 Supreme Court ruling – known as Dobbs v. Jackson Women’s Health Organization – but to how the original 1973 Roe precedent was chipped away at by conservative litigants and courts over time.
“When voters vote for those broad amendments, they’re saying, ‘We don’t want to go back to the way things were before Dobbs. We want to ensure that reproductive rights are protected to the maximum extent under the law,’” said Rabia Muqaddam, a senior staff attorney for the Center for Reproductive Rights, which is representing abortion provider organizations challenging the Michigan regulations.
Similar ballot initiatives have passed in reliably blue states like California. But the success abortion rights advocates have had in passing such measures in purple states and even Ohio – where Republicans have dominated recent elections – is notable.
“The people are coming out in full force to support reproductive rights and reproductive autonomy and the ability of every individual to decide if when and how to continue a pregnancy and give birth for themselves,” said Meagan Burrows, a senior staff attorney with the ACLU Reproductive Freedom Project, who is involved in the Ohio litigation.
The dynamic could soon be coming to the other states that are considering proposals to add abortion rights protections to their constitutions.
Anti-abortion activists say that abortion rights advocates are stretching the constitutional amendments beyond their meaning, suggesting that voters in other states should be wary.
“Running deceptive campaigns is the playbook for Florida, Arizona, Missouri and every other state with abortion on the ballot, but the litigation proves these amendments go farther than they will ever admit in a 30-second commercial,” Katie Daniel, the state policy director for the organization Susan B. Anthony Pro-Life America, said in a statement to CNN.
Abortion rights advocates say that the legal landscape differs state by state, so it’s difficult to predict the litigation that could come out of the proposed amendments if adopted.
Disputes about the reach of constitutional amendments
In at least one state, anti-abortion activists are actively seeking to overturn a successful state ballot measure. A lawsuit filed in federal court by Right to Life of Michigan and other anti-abortion groups and individuals is seeking to block that state’s new constitutional amendment. The lawsuit puts forward several claims, including fetal personhood arguments.
Briefing in that longshot case is under way.
In the Michigan case brought by the Center for Reproductive Rights, state Attorney General Dana Nessel, a Democrat, has declined to defend the 24-hour waiting period and the other abortion laws targeted in the lawsuit, although the Democratic-controlled legislature did not repeal them when it voted last year to reverse several other abortion limits that were said to run afoul of the new constitutional amendment.
In addition to the waiting period, the new lawsuit is challenging limits on the kinds of healthcare providers who can perform abortions as well as a mandate that providers give abortion seekers a script of counseling that the lawsuit says is “biased,” “inaccurate,” “irrelevant,” and “non-medical.”
The state’s deputy solicitor general Eric Restuccia, a Republican, has been tasked to defend the restrictions and is opposing the abortion rights advocates’ request for the restrictions to be put on pause while the case plays out.
In court filings, he wrote that the laws in question “have been in place for more than 30 years” and that there was “was nothing in the new constitutional amendment signaling the intent of the people to enact a dramatic departure from the laws in place before the decision in Dobbs v Jackson Women’s Health Org.”
He defended the counseling script as “neutral and necessary for ensuring that any consent by a patient is a knowing and informed one.”
Genevieve Marnon, legislative director of Right to Life of Michigan, told CNN that the challengers were seeking to use the courts to obtain what they could not achieve legislatively.
“They were unable to use the democratic legislative process to repeal this law,” she said. “It was up for repeal, and there were members on both sides of the aisle who didn’t agree that this law should be repealed.”
The lawsuit filed in Ohio by the ACLU in March goes after similar counseling requirements, in addition to the 24 hours abortion seekers must wait after receiving the counsel before they can undergo the procedure.
In court filings opposing ACLU’s lawsuit, Ohio’s Republican attorney general argued that the ballot initiative only re-established the federal legal framework that was in place before the Dobbs’ decision.
That legal standard – laid out in a 1992 Supreme Court case called Planned Parenthood v. Casey – allowed states to impose restrictions on abortion as long as the rules don’t place an “undue burden” on access to abortions before a fetus is viable. The Ohio amendment, however, puts the bar for states much higher. It allows for measures that interfere with abortion access only if they are the “least restrictive means” to ensure the patient’s health.
Any restrictions on the procedure also must be in line with “widely accepted and evidence-based standards of care,” according to the Ohio amendment.
To support his argument, Ohio Attorney General Dave Yost is pointing not to the language of the amendment itself but the news stories and messaging around it.
“Voters were primarily told, by the dominant and successful voices, that the Amendment would restore the status quo,” Yost said in a court filing.
The ACLU counters that, a month before the vote in the amendment, even the state attorney general was describing the proposal as going beyond Roe and Casey. Yost now claims the guidance did not contemplate an “October wave of reassuring the public that no such broader effects arose from the Amendment, and that it was merely ‘restoring Roe’ after all.”
Using ‘every tool available’
In Arizona, abortion right advocates are pushing a constitutional amendment that would enshrine the right to an abortion in language that is akin to the initiatives adopted in Ohio and Michigan. The state’s legislature recently repealed a near-total ban on abortion, but a 15-week ban remains on the books, as do counseling and waiting period requires that were in effect before the Supreme Court’s ruling in Dobbs.
There are campaigns for initiatives to expand abortion rights in several other states, but only in a few states so far have abortion rights advocates cleared the required hurdles to guarantee the proposals will be on the ballot.
The ACLU declined to answer specific questions about the potential for more litigation if the ballot campaigns in those other states are successful. In a statement to CNN, ACLU senior policy counsel Jessica Arons said that the measures the ACLU are involved in are being crafted “to address the unique access challenges communities face in each state.”
“We’re determined to use every tool available to ensure we all can make our own personal medical decisions during pregnancy without political interference,” Arons said.
