State Court Report: Ten states have abortion rights amendments. What happens next?

Plus: Congestion pricing in New York, an intro to the Kansas Constitution, and more

Since the Supreme Court ruled in Dobbs that there was no federal constitutional right to an abortion, voters in 10 states have passed state abortion rights amendments, including six this year. (In one more state, Nevada, an amendment passed this year but must go before voters again in 2026.) Many voters likely thought that casting their ballot was the end of the story. The reality is that passing an amendment is often just another step in the lengthy legal and political wrangling over state abortion rights.

First off, passing a constitutional amendment doesn’t automatically remove abortion bans or restrictions from the statute book, which means litigation is often a necessary second step even after an amendment wins on the ballot. This year, for example, voters in Arizona and Missouri passed amendments that on their face appear to overturn state laws. (Arizona currently has a 15-week abortion ban on the books, while Missouri bans virtually all abortions — one of the strictest laws in the country.) Abortion providers in both states have now filed lawsuits asking state courts to block these laws and offer a definitive legal statement that they’re inoperative.

In Missouri, where the state’s amendment formally took effect last Friday, Planned Parenthood announced that it would not resume providing abortions until the court issued an injunction in its case. (The court heard oral arguments last week.) At least one sticking point is whether Missouri can still enforce various abortion restrictions, such as a 72-hour waiting period and a requirement that providers have hospital admitting privileges. In Arizona, by contrast, the state attorney general has taken the position that the state’s 15-week abortion ban violates the new amendment and filed a stipulation with the court that the state would not enforce the law while litigation is ongoing. At least some Arizona providers have stated that with this agreement in place, they will resume expanded services.

Another set of questions relates to exactly what’s covered by a state’s abortion amendment. As the Missouri dispute highlights, many states have a web of laws and regulations relating to abortion that can pose serious practical hurdles to abortion access. In Ohio, for example, where voters passed an abortion rights amendment last year, the state attorney general has said he will appeal a lower court decision striking down the state’s six-week abortion ban. While conceding that the ban itself violates the state constitution, he argues that other provisions of the law should stay in effect, including a requirement that health providers assess and inform patients of the presence of a fetal heartbeat (with potential civil and criminal liability for failures to do so).

As courts consider these questions, it’s significant that many abortion rights amendments explicitly lay out a far more demanding inquiry into abortion regulations and restrictions than what was required under federal law even before Dobbs. In Planned Parenthood of Southeastern Pennsylvania v. Casey, the Supreme Court established a rule that abortion restrictions would be struck down when they placed an “undue burden” on people seeking abortions. Under that test, many kinds of regulations, including 24-hour waiting periods and parental consent laws, were upheld.

By contrast, several state amendments have protections that appear to go far beyond undue burden. In Michigan, for example, a 2022 amendment establishes a “fundamental right” to reproductive freedom, including abortion care, and states that this right “shall not be denied, burdened, nor infringed upon unless justified by a compelling state interest achieved by the least restrictive means.”

Relying on this language, a Michigan trial court issued a preliminary injunction in June barring the enforcement of state laws imposing a 24-hour waiting period, requiring that abortions be performed only by doctors, and imposing “informed consent” requirements that the plaintiffs argued were designed to deter abortion patients. The court pointed to the text of the amendment as a basis to reject Casey’s undue burden framework and instead apply strict scrutiny, the most exacting form of judicial review. Soon after the judge’s decision, a new lawsuit was filed in Michigan challenging a state law ban on Medicaid coverage for abortion services.

One looming question in all these states is how state supreme courts will ultimately assess the scope of rights under these amendments. They do so in a brave new world of highly politicized judicial elections, where abortion has often been a campaign issue and where special interests on all sides can flood races with seven- and eight-figure spending. And they’ll decide cases in a political environment where state legislatures are increasingly seeking greater political and partisan control over state judicial selection — sometimes explicitly in response to judicial rulings.

Back in June, the Center for Reproductive Rights’ Amy Myrick and Alexander Wilson argued that “it would be a mistake for advocates to think that direct democracy alone can restore abortion rights.” Just as important, they argued, is protecting “the independence of state courts that will safeguard the democratic process as well as reproductive autonomy.” As we consider the legal contours of new abortion amendments, and look to future amendment campaigns as well, the political environment in which state courts operate is a critical part of the analysis.

Expanded Rights for Transgender People Under State Constitutions?

The Supreme Court last week heard oral arguments in United States v. Skrmetti, a constitutional challenge to Tennessee’s ban on gender-affirming care for transgender minors. Should the Court uphold the ban, battles over trans rights will likely move into state courts, write Brennan Center senior counsel Kathrina Szymborski Wolfkot and NYU Law student Morgan Munroe. Recent state cases considering legislation targeting trans people, Wolfkot and Munroe write, “may provide hints about what a state constitutional strategy could mean for the future of trans rights.” READ MORE

Wisconsin Justices Appear Hostile to 175-Year-Old Abortion Law

The Wisconsin Supreme Court heard arguments over an 1849 law that state Republicans say bans abortion with few exceptions. During the argument, “several progressive justices’ hostility to the 1849 law was on display,” writes Mary Ziegler, a professor at the University of California, Davis School of Law. One justice suggested that upholding the law would be akin to the state high court signing a death warrant for pregnant people. READ MORE

A Second Chance for Youth Sentenced to Life

Twenty-eight states and DC have abolished mandatory life in prison without parole for juveniles under 18. But some state high courts have held that their constitutions require similar protections against excessive sentences for young people over 18. Former American Lawyer Media editor in chief David Brown talked to legal experts and people who were released from prison thanks to expanded state constitutional protections. “When you give someone who is 18 years old life without parole, you're saying that they're not redeemable,” said one man who was released from prison as a result of a recent Michigan Supreme Court decision. “And that's not true.” READ MORE

New Jersey Considers Challenge to Fusion Voting Ban

A New Jersey appellate court panel heard oral arguments in a challenge to the state’s ban on fusion voting, a practice that allows multiple parties to nominate the same candidate for the same office and helps ensure that third parties can meaningfully participate in the electoral process. While the U.S. Supreme Court has said that federal law doesn’t prohibit a ban, state constitutions “generally protect democratic rights to a far greater extent than their federal counterpart,” writes Lauren Miller Karalunas, counsel on the Brennan Center’s team that filed an amicus brief in the case. READ MORE

Putting State Equal Rights Amendments to Work

New York voters recently approved an equal rights amendment, joining 28 other states with explicit provisions for sex equality in their state constitutions. But equal rights amendments “must be put to work through concrete policy change,” write Ting Ting Cheng and Naomi Young of the ERA Project at Columbia Law School’s Center for Gender and Sexuality Law. “Only then can we begin to move toward a society where gender justice is a reality.” READ MORE

Kansas’s Constitution Is a Source of Expanded Rights

In the second essay in a new State Court Report series, University of Kansas School of Law professor and former Kansas solicitor general Stephen R. McAllister writes about what makes Kansas’s constitution unique. McAllister discusses state constitutional provisions impacting reproductive freedom, gun rights, judicial selection, and much more. READ MORE

Arizona and North Dakota Voters Refuse to Curb Direct Democracy

Roughly half of all state constitutions afford their citizens some mechanism for placing statutory or constitutional proposals on the ballot. “This year, irked by recent successful citizen initiatives on issues ranging from health care to labor laws to government ethics,” Arizona and North Dakota’s legislatures put their own measures on the ballot proposing to limit their citizens’ direct democracy power, writes the Brennan Center’s Alice Clapman. Voters said no. READ MORE

What’s at Stake with Congestion Pricing in the Courtroom?

New York Gov. Kathy Hochul recently announced her intention to implement congestion pricing in New York City before Donald Trump, who has promised to kill it, takes office — after abruptly pausing implementation of the program shortly before its planned June rollout. But there are also multiple legal challenges to the plan. “Between the judges, the White House, and the MTA’s now-uncertain financial outlook,” writes journalist John Surico, “Hochul has been pinned into a position where she must decide on congestion pricing.” READ MORE

You May Have Missed

A Missouri trial court judge issued decisions in two cases, both challenging a restrictive state voting law. In one challenge, the court upheld the law’s requirement that voters show a government-issued ID or vote by provisional ballot. In the second, the court permanently enjoined multiple provisions, including bans on compensating individuals for soliciting voter registration applications and requiring those who solicit more than 10 voter registration applications to register with the secretary of state. At issue in both cases is the appropriate level of scrutiny for analyzing these voting laws, a topic State Court Report recently covered in the context of similar challenges in Kansas and Idaho.

For the third time, Judge Melissa Owens of Wyoming’s Teton County District Court blocked the enforcement of a state abortion law. The November decision, in which Owens struck down the state’s near-total abortion ban and its specific ban on medication abortions, found that the law violated the state’s 2012 health care freedom amendment. State Court Report previously covered how abortion and trans rights advocates are using such amendments as a basis to challenge related laws.

Notable Cases

Crawford v. Commonwealth, Pennsylvania Supreme Court
Unanimously dismissed for failure to state a claim in a case brought by a group of Black and Latino Philadelphia and Pittsburgh residents challenging two statutes that generally preempt cities from enacting local gun control legislation. State Court Report covered the case’s novel claims that the laws violate state substantive due process as state acts that create or enhance a danger to individuals and infringe on residents’ collective right to use local regulation to defend against gun violence. // Philadelphia Inquirer

State v. Vasquez, New Mexico Supreme Court
Held that a trial court could, on its own accord, raise the issue of whether evidence should be suppressed. The issue arose after a district court judge noticed a pattern of warrantless searches and seizures in her docket and set suppression hearings in 30 cases, ultimately suppressing evidence in 6 cases after the prosecution chose to dismiss 13. // Los Alamos Daily Post

Martens v. Findlay Municipal Court, Ohio Supreme Court
Affirmed an appellate court finding that a plaintiff must have been personally injured to bring a claim. The case explicitly overturned decades-old, if rarely applied, precedent that recognized a “public right” doctrine that allowed plaintiffs seeking to enforce important public rights to avoid having to show personal injury. In the present litigation, the plaintiff was claiming that local courts were improperly exercising jurisdiction over cases in which the government sought to recover unpaid municipal income taxes even though the plaintiff was not involved in any such tax dispute. // Court News Ohio

You can find briefs and opinions from notable state constitutional lawsuits in our State Case Database.