Five States to Watch in the Wake of Dobbs
Several states may seek to enact legislation on abortion, but they’ll have to clear their own state constitutions or pending litigation first.
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.
The lawsuit calls the ban “a brazen attempt to override the will of the Florida people” passed in spite of “Florida’s history of protecting the right to abortion.” It appeals to a 1989 Florida Supreme Court precedent, In Re TW, that protects abortion before viability on the basis of a 1980 right to privacy constitutional amendment. After current Justice Alan Lawson retires at the end of August, the Florida Supreme Court will include four DeSantis appointees (out of seven total), and might overrule the earlier precedent. So far, Florida leaders have been noncommittal about pursuing any further restrictions if it falls, even after the Dobbs decision. DeSantis himself hasn’t signaled he’d go much further than defending the 15-week ban, a measure that would criminalize only about 2 percent of the abortions in Florida in 2019. DeSantis said only that he “will work to expand pro-life protections.” Florida pro-life groups expect eventual further restriction, but not before November at the earliest and likely not until the 2023 legislative session.
In Montana, Republican Attorney General Austin Knudsen has filed an appeal asking the state supreme court to uphold several abortion restrictions enjoined by a district court and reconsider the Armstrong precedent, a 1999 decision expanding the state’s “right of individual privacy” to protect abortion. The attorney general claims the protection was “invented from whole cloth” and “has poisoned [the] Court’s jurisprudence ever since.” Opponents—Planned Parenthood of Montana and one of its contract physicians—argue that Armstrong “was correct when it was decided more than two decades ago and remains correct today,” and that an appeal of a preliminary injunction, “is not the proper vehicle” for overturning it.
Three surviving delegates and the research analyst for the Bill of Rights Committee from the 1972 Montana Constitutional Convention filed an amicus brief on the side of Planned Parenthood, writing, “In no uncertain terms, these amici state firmly, with conviction, passion, and not a shred of doubt, that to grant the Attorney General’s request would be not only contrary to the intent of the Constitutional Convention Delegates, but the beginning of the end of the one right—individual privacy—that is perhaps most important to what makes our great State the last best place on earth.”
A decision will probably come down by early November. If Knudsen is successful, Republican Gov. Greg Gianforte likely will call the legislature into a special session to pass abortion regulation. “I would be happy to call a special session if we have a path that is defensible in the courts here in Montana and we have a consensus in the Legislature,” he told a Montana radio station. “Every life has to be protected.” Until the decision comes, according to Republican legislators, focus is on the court, not the statehouse. The Senate president and House majority leader committed, “to proceeding strategically to protect preborn Montana children.”
To the east, on June 17, the Iowa Supreme Court overturned its own 2018 decision that found a “fundamental right” to abortion in the state’s constitution. The 2018 court cited Iowa’s due process and equal protection guarantees to knock down a 72-hour abortion waiting period law. But since that decision, Republican Gov. Kim Reynolds has appointed four of the seven justices on the court, resulting in a 6-to-1 majority of Republican appointees. (The one Democratic appointee is the only justice who was in the majority in 2018.) In October 2021, the state appealed a district court decision blocking a 24-hour abortion waiting period under the 2018 precedent, calling it “demonstrably erroneous.” The state points out that Iowa banned abortion soon after adopting its current constitution, arguing that abortion protections could not have been encompassed in the due process and equal protection clauses. Sixty state legislators filed an amicus brief joining the call to overturn the 2018 decision.
But after this decision, even now that Roe has also been overturned, no new restrictions on abortion qua abortion automatically spring into place in Iowa. Abortion remains legal through 20 weeks, and the governor and state legislators have not yet announced concrete plans for further restrictions. After the most recent Iowa Supreme Court decision, abortion regulations must still pass the “undue burden” legal standard, conceded by the state in a 2015 case and not yet challenged (though the Iowa Supreme Court expressed openness to future challenges).
But Sally Frank, professor of law at Drake University Law School, told The Dispatch before the Dobbs decision, “I believe that the governor would call a special legislative session to outlaw abortion.” (Frank is pro-choice and, with a number of other Iowa law professors, co-authored an amicus brief in the Iowa case arguing “that mere disagreement with a precedent—even strong disagreement—is not a sufficient reason to overrule it.”) Gov. Reynolds has not said this explicitly, but she did announce in the aftermath of the Dobbs opinion that, “As governor, I won’t rest until every unborn Iowan is protected and respected.” Iowa already passed a “heartbeat bill” (banning abortion after a fetal heartbeat is detected, or roughly six weeks into the pregnancy), which a court found unconstitutional in the state, and would likely pursue more aggressive limits this time around.
A corresponding but opposite problem to that faced by these red states besets pro-choice politicians in Michigan, which passed a law criminalizing any attempt “to procure miscarriage” except to save the life of the mother—in 1846. The current form of this law was established in 1931, when Michigan revised its criminal code. Roe made the law unenforceable, but, without legislative or judicial intervention, it becomes active again now that Roe has been discarded. (It is currently enjoined—more on that below.) States such as Alabama have kept such statutes on the books, while states such as New Mexico, worried about a possible Roe reversal, have repealed them. But Michigan is stuck in limbo, with its Democratic governor unable to get past the Republican-controlled legislature to repeal the 1931 law or otherwise protect abortion.
A group of Michigan abortion-rights supporters is currently circulating a petition to place a constitutional amendment on the November ballot that would protect pre-viability abortions from state intervention. It needs 425,059 signatures by July 11, and, while the organizers have not publicized the current number, they say they believe they will meet the mark. Barbara McQuade, professor at the University of Michigan Law School and an NBC and MSNBC legal analyst, tells The Dispatch that such amendments are relatively common in Michigan and that this one has a “very good chance” of passing. A poll conducted by the Detroit Regional Chamber of Commerce after the Dobbs opinion leak backs up that assertion, showing nearly 60 percent support for the amendment.
Michigan’s 1931 anti-abortion law also faces a challenge in a suit in Oakland County Circuit Court, which names as defendants the prosecuting attorneys in the 13 counties with abortion clinics. Gov. Gretchen Whitmer filed the complaint, which challenges the prohibition under the Michigan Constitution’s due process and equal protection clauses, and has been supported by seven of the prosecutors named as defendants. The governor told the Detroit Free Press, “There are two fundamental arguments here—around due process, privacy and bodily autonomy, and under the equal protection clause,” adding that the old law is, “based on paternalistic justifications that have made Michigan women second-class citizens.”
Whitmer’s opponents cite a 1997 Court of Appeals decision, Mahaffey v. Attorney General, to argue that there is no constitutional right to abortion in Michigan. But the Michigan Supreme Court has never ruled on the question. Furthermore, the Mahaffey court rejected the argument that the Michigan constitution’s “generalized right of privacy” protected abortion, while Whitmer’s lawsuit looks to the due process and equal protection clauses. According to McQuade, this is a question never before addressed by the state’s courts. She tells The Dispatch that, since the ban was passed in 1931 and Michigan adopted a new constitution in 1963, it is not clear if the law is valid under the current constitution. This confusion is even more apparent after the Michigan Supreme Court found a “right to bodily integrity” as part of due process in 2020, a right that was not established in 1997.
Opponents of Whitmer’s suit also argue that there is no active case or controversy which the courts can address, since the 1931 law is not currently being enforced. David Kallman, senior legal counsel for the Great Lakes Justice Center, a conservative organization working with two of the prosecuting attorneys named as defendants, told the Detroit Free Press, “There still is no case and there still is no ripeness because no prosecutor has prosecuted anybody.” Whitmer’s team, in response, argues that the governor is obligated to preemptively attack unconstitutional statutes.
Whitmer has employed the seldom-used power of executive message, which allows her to attempt to send her suit directly to the Michigan Supreme Court. The court has a 4-3 liberal majority, but McQuade warns against assuming outcomes. The court is yet to decide whether to take the case or let it first proceed through the lower courts, in which case it will go to trial in Oakland County Circuit Court in February 2023.
In conjunction with Whitmer, Planned Parenthood of Michigan also sued the attorney general in the state Court of Claims, arguing the 1931 law is unconstitutional in the state and in violation of the Elliott-Larsen Civil Rights Act, a 1976 Michigan antidiscrimination law. Democratic Attorney General Dana Nessel refused to defend the law, leaving the responsibility to the state House and Senate, which intervened as defendants in Planned Parenthood’s suit. (Democratic Senate Minority Leader Jim Ananich’s spokeswoman called the intervention, “a partisan political play, not an act of the full Michigan Legislature.”)
They took this step after the Court of Claims judge assigned to the case, former lawyer representing Planned Parenthood and current Planned Parenthood donor Elizabeth Gleicher, issued a preliminary injunction against the 1931 law. Republican state Rep. Pamela Hornberger issued a statement calling the case a “phony lawsuit,” alleging that the plaintiff (Planned Parenthood), the defendant (the attorney general), and the judge, “want the same outcome. It’s a blatant conflict of interest and undermines the public’s trust in our judicial system.”
McQuade tells The Dispatch that Gleicher does not have a legal obligation to recuse herself, but concern about her impartiality is understandable. The legislature could ask Gleicher to recuse herself, something both Planned Parenthood and Attorney General Nessel have declined to do. But Nessel has said, “Frankly, I believe that the case should be dismissed for lack of jurisdiction because there’s no case or controversy,” advising Planned Parenthood to instead support the governor’s lawsuit.
Now, two county prosecuting attorneys and two pro-life groups have asked the Michigan Court of Appeals to vacate the injunction and dismiss the case or at least force Gleicher to recuse. According to McQuade, this is a rarely granted request, and, while the Court of Appeals is waiting on briefs to make its decision, it is likely to decline. (Gleicher has already denied the legislature’s motion to reconsider her injunction.)
If either lawsuit is ultimately successful, the 1931 law restricting abortion in Michigan will be struck down. But outside of preventing the immediate criminalization of abortion now that the U.S. Supreme Court has reversed Roe, it’s unlikely any further protections will pass a Republican-dominated state House and Senate.