Politics

/

ArcaMax

New abortion-rights measures in 7 states could trigger legal, legislative challenges

Anna Claire Vollers, Stateline.org on

Published in Political News

Widespread support for abortion rights continued to defy partisan labels in Tuesday’s election, but several of the ballot measures that voters approved may face legal and legislative challenges in the coming months. And supporters worry that federal efforts could eventually override the state measures.

Voters in seven states — including deep-red Missouri and Montana — chose to protect or expand access to abortion through ballot initiatives.

“This won’t be the last time Missourians vote on so-called ‘reproductive rights,’” Missouri Republican state Sen. Mary Elizabeth Coleman, who opposed the ballot measure, wrote in a press release. “I will do everything in my power to ensure that vote happens.”

In Missouri and Arizona, the ballot measures will expand abortion access beyond what state laws currently allow. Though those constitutional amendments are set to go into effect in the coming weeks, abortion is unlikely to become immediately accessible in those states because abortion-rights advocates will have to go to court to overturn existing laws.

In addition, anti-abortion groups and their legislative allies in recent years have worked to undermine abortion protections through laws and court challenges based on concepts such as fetal personhood, parental rights and fetal viability. Those efforts could limit the impact of the new ballot measures.

Supporters of the Missouri measure anticipate continued opposition. Mallory Schwartz, the executive director of Abortion Action Missouri, told a crowd celebrating on Tuesday night that “anti-abortion, anti-democracy politicians are going to try to stomp us out,” according to the Missouri Independent.

“They’re going to try to fight us in court, and they’re going to file new attacks in Jefferson City,” Schwartz said.

Some abortion-rights supporters worry that without a federal constitutional right to abortion, which the U.S. Supreme Court struck down in its 2022 Dobbs ruling, the new state-level protections are vulnerable to federal moves that could override them.

After the Dobbs decision, the Biden administration took several steps to protect access to birth control, abortion medication and emergency abortion care at hospitals.

But Nourbese Flint, president of the abortion-rights group All* In Action Fund, said the incoming Trump administration could restrict access even in states that have abortion-rights measures on the books.

President-elect Donald Trump has flip-flopped on abortion and other reproductive rights, bragging for years that his U.S. Supreme Court nominations led to the Dobbs decision — then telling Fox News viewers last month that some state abortion laws were “too tough” and would be “redone.”

“Unfortunately, we are in a position where even if your state has passed great legislation, the actual, tangible access to medication abortion might be harder” in the future, Flint said.

Some anti-abortion groups want the Trump administration to enforce the Comstock Act, a long-dormant 1873 law they believe could be used to make it a federal crime to send or receive abortion pills in the mail.

The Trump administration also could reverse a current policy under the federal Food and Drug Administration that allows the mailing of abortion medication. And when the U.S. Supreme Court dismissed a case earlier this year involving FDA regulation of the abortion medication mifepristone, it left the door open for future challenges. Meanwhile, some states have laws limiting access, such as requiring in-person physician visits for abortion medication, effectively barring patients from accessing it via telemedicine.

“I don’t want people to think just because they voted ‘yes’ to protect reproductive rights there is going to be a magic wand to restore those rights,” said Chris Melody Fields Figueredo, executive director of the Ballot Initiative Strategy Center, which supports progressive ballot initiatives nationwide.

“They’re going to have to double down and fight to make sure people are going to receive the reproductive care they need and deserve.”

In addition to reliably red Missouri and Montana, voters on Tuesday also approved abortion-rights measures in presidential battlegrounds Arizona and Nevada and solidly blue Colorado, Maryland and New York. In Nevada, voters will have to approve the amendment again in 2026 for it to go into effect.

 

Before last week, voters in six states — including conservative Kansas and Kentucky — had endorsed abortion rights when presented with abortion-related ballot questions.

But Tuesday’s election marked the first time since the fall of Roe v. Wade that abortion-rights ballot measures failed: Voters defeated proposed amendments in Nebraska and South Dakota. And in Florida, 57% of voters supported an abortion-rights amendment, but it fell short of the 60% supermajority required for passage.

Questioning viability

The ballot measures in Arizona, Missouri and Montana establish the right to abortion up to “fetal viability.” It’s a term that lacks an exact medical or legal definition, and thanks to medical advances over the years, viability has moved earlier in pregnancy. Today, it’s generally considered to be around 23 or 24 weeks of pregnancy.

“‘Fetal viability’ is not a legal term,” said Dale Margolin Cecka, director of the Family Violence Litigation Clinic at Albany Law School and a former Georgia assistant attorney general. “Even in states that now have amended their constitutions [to permit abortion], I can foresee challenges to the ‘fetal viability’ aspect of those amendments.”

For example, she said, state legislators could attempt to restrict abortions by defining “fetal viability” in state law in such a way that might create doubt in the minds of providers about whether a patient’s pregnancy meets state requirements for a legal abortion.

In the days leading up to the election, Florida Attorney General Ashley Moody, a Republican, used the vagueness of the “viability” standard in Florida’s proposed abortion amendment to ask the state’s highest court to keep the measure off the ballot, though the court declined to do so.

In Montana, where abortion was already legal until fetal viability under a 1999 state Supreme Court ruling, the new constitutional amendment shores up that protection by defining fetal viability. The amendment says viability should be based on “the good faith judgment of a treating health care professional and based on the particular facts of the case.”

‘Personhood’ and parental rights

The concept of “fetal personhood” also could be used to circumvent state constitutional amendments on abortion. Long a cornerstone of the anti-abortion movement, fetal personhood is the idea that a fetus, embryo or fertilized egg has the same legal rights as a person who has been born. If state law considers fetuses to be people, the thinking goes, the abortion would be considered murder.

Missouri state Rep. Brian Seitz, a Republican, told Stateline in July that he plans to introduce a fetal personhood bill in the upcoming legislative session that would grant “unborn children” the same rights as newborns. His hope was that the bill could protect embryos and fetuses regardless of whether Missourians passed a constitutional amendment guaranteeing the right to abortion.

Cecka also expects to see state legislators continue testing abortion protections with so-called parental rights laws. Since Dobbs, conservative legislators in several states have filed parental consent bills to restrict access to abortion, birth control and other reproductive health care for people under age 18. Proponents argue such laws are needed to protect the rights of parents and to prevent other adults from persuading adolescents to get abortions.

The lawsuit filed last week by Missouri reproductive care providers to strike down several of Missouri’s abortion restriction laws after passage of the constitutional amendment does not challenge the state’s parental consent law.

In Cecka’s view, abortion access remains at risk, even in states that have passed protective laws, unless federal protections are put in place.

“In red states where there’s a strong enough push, the anti-reproductive freedom movement is a big machine with a deep bench, and they’re ready to fight,” she said.


©2024 States Newsroom. Visit at stateline.org. Distributed by Tribune Content Agency, LLC.

 

Comments

blog comments powered by Disqus

 

Related Channels

ACLU

ACLU

By The ACLU
Amy Goodman

Amy Goodman

By Amy Goodman
Armstrong Williams

Armstrong Williams

By Armstrong Williams
Austin Bay

Austin Bay

By Austin Bay
Ben Shapiro

Ben Shapiro

By Ben Shapiro
Betsy McCaughey

Betsy McCaughey

By Betsy McCaughey
Bill Press

Bill Press

By Bill Press
Bonnie Jean Feldkamp

Bonnie Jean Feldkamp

By Bonnie Jean Feldkamp
Cal Thomas

Cal Thomas

By Cal Thomas
Christine Flowers

Christine Flowers

By Christine Flowers
Clarence Page

Clarence Page

By Clarence Page
Danny Tyree

Danny Tyree

By Danny Tyree
David Harsanyi

David Harsanyi

By David Harsanyi
Debra Saunders

Debra Saunders

By Debra Saunders
Dennis Prager

Dennis Prager

By Dennis Prager
Dick Polman

Dick Polman

By Dick Polman
Erick Erickson

Erick Erickson

By Erick Erickson
Froma Harrop

Froma Harrop

By Froma Harrop
Jacob Sullum

Jacob Sullum

By Jacob Sullum
Jamie Stiehm

Jamie Stiehm

By Jamie Stiehm
Jeff Robbins

Jeff Robbins

By Jeff Robbins
Jessica Johnson

Jessica Johnson

By Jessica Johnson
Jim Hightower

Jim Hightower

By Jim Hightower
Joe Conason

Joe Conason

By Joe Conason
Joe Guzzardi

Joe Guzzardi

By Joe Guzzardi
John Micek

John Micek

By John Micek
John Stossel

John Stossel

By John Stossel
Josh Hammer

Josh Hammer

By Josh Hammer
Judge Andrew Napolitano

Judge Andrew Napolitano

By Judge Andrew P. Napolitano
Laura Hollis

Laura Hollis

By Laura Hollis
Marc Munroe Dion

Marc Munroe Dion

By Marc Munroe Dion
Michael Barone

Michael Barone

By Michael Barone
Michael Reagan

Michael Reagan

By Michael Reagan
Mona Charen

Mona Charen

By Mona Charen
Oliver North and David L. Goetsch

Oliver North and David L. Goetsch

By Oliver North and David L. Goetsch
R. Emmett Tyrrell

R. Emmett Tyrrell

By R. Emmett Tyrrell
Rachel Marsden

Rachel Marsden

By Rachel Marsden
Rich Lowry

Rich Lowry

By Rich Lowry
Robert B. Reich

Robert B. Reich

By Robert B. Reich
Ruben Navarrett Jr

Ruben Navarrett Jr

By Ruben Navarrett Jr.
Ruth Marcus

Ruth Marcus

By Ruth Marcus
S.E. Cupp

S.E. Cupp

By S.E. Cupp
Salena Zito

Salena Zito

By Salena Zito
Star Parker

Star Parker

By Star Parker
Stephen Moore

Stephen Moore

By Stephen Moore
Susan Estrich

Susan Estrich

By Susan Estrich
Ted Rall

Ted Rall

By Ted Rall
Terence P. Jeffrey

Terence P. Jeffrey

By Terence P. Jeffrey
Tim Graham

Tim Graham

By Tim Graham
Tom Purcell

Tom Purcell

By Tom Purcell
Veronique de Rugy

Veronique de Rugy

By Veronique de Rugy
Victor Joecks

Victor Joecks

By Victor Joecks
Wayne Allyn Root

Wayne Allyn Root

By Wayne Allyn Root

Comics

Michael Ramirez Bart van Leeuwen Tim Campbell Lee Judge Rick McKee John Cole