Politicians and activists across the country are reacting to the legislative and judicial chaos resulting from the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Center overturning Roe v. Wade. Closely divided states are generally descending directly into legislative tussles. Many red states have pre-Roe abortion bans still on the books that will soon take effect, if they haven’t already. Some blue states, on the other hand, have already passed state constitutional amendments protecting abortion or have accepted state supreme court decisions reading such protections into their respective constitutions.
But a handful of states face trickier situations: Unlike the 17 states where abortion is, or soon will be, automatically banned—or Virginia, Pennsylvania, North Carolina, Georgia, Nebraska, and other states where abortion restrictions will be hotly contested in statehouses—in Florida, Montana, Iowa, and Kansas, activists must first look to their respective supreme courts and constitutional amendment processes if they are to legislate directly on abortion now. Each of those states has essentially Republican trifecta government (Kansas has a Democratic governor but a Republican supermajority in its legislature), but each of those state’s respective supreme courts has found a right to abortion in its constitution. Another state, Michigan, doesn’t currently recognize such a constitutional protection but does still have a pre-Roe ban, leaving abortion rights there at risk after Dobbs. In all five states, efforts were already underway to either remove abortion rights protections from or, in Michigan’s case, enshrine them in the state constitution. Now the Dobbs decision ups the ante.
Some in Montana have suggested putting a constitutional amendment or convention before the voters in order to undo past abortion-protecting precedent. But doing so would require an unlikely two-thirds-majority vote in the legislature. In Iowa, Republicans have already begun advancing a constitutional amendment removing protections for abortion, but state law makes November 2024 the earliest it can appear as a statewide ballot question. And after an 86-38 party-line vote in its legislature, Kansas is holding an August referendum to determine whether or not to enact an amendment that explicitly removes abortion rights from its constitution. The “Value Them Both” amendment must pass in order for legislative restriction of abortion rights to prevail, since, in 2019, the Kansas Supreme Court found abortion rights in a “right to personal autonomy” allegedly implicit in the Kansas Constitution Bill of Rights.
In the meantime, much more certain to produce results is litigation pending in state courts. In Florida, a lawsuit filed in Leon County in early June challenges a 15-week abortion ban (with exceptions for the life of the mother and for fatal fetal abnormalities prior to viability) that Republican Gov. Ron DeSantis signed in April. Leon Circuit Judge John C. Cooper heard arguments on the case Monday and is expected to rule on an injunction Thursday. In the absence of court action, the ban takes effect Friday.