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Three years ago, when the U.S. Supreme Court overturned the precedent set by Roe v. Wade, it did more than end nearly five decades of federal constitutional protection for abortion; it also fractured the legal landscape of reproductive rights, shifting the authority to regulate the procedure to individual states, and leading to legal uncertainty for courts, physicians and patients.

For many people, the ruling in Dobbs v. Jackson Women's Health Organization on June 24, 2022, had an immediate impact.

In Texas, Tennessee, Idaho and other states, "trigger" bans took effect within days or weeks, criminalizing most abortions, even in cases of severe fetal anomalies or life-threatening pregnancy complications.

Clinics shuttered. Doctors hesitated to perform standard medical care. Patients were told to wait until their conditions worsened enough to satisfy vague legal thresholds.

In August 2022, Amanda Zurawski suffered sepsis after being denied an abortion in Texas following a pregnancy complication that left no chance of survival for the fetus.

Zurawski said she was told by her anguished healthcare team that ​​because of Texas' anti-abortion laws, there was nothing they could do for her — unless her survival could be deemed at risk by a hospital's ethics board.

"The barbaric restrictions our lawmakers have passed are having real-life implications on real people," Zurawski said during a news conference in Austin, Texas, in March 2023. "I may have been one of the first who was affected by the overturning of Roe in Texas, but I'm certainly not the last. More people have been and will continue to be harmed until we do something about it."

The Dobbs decision redefined litigation around abortion, opening multiple fronts on issues that include abortion bans, but also interpretation of medical exceptions to those bans, classification of embryos under state law and the authority of federal agencies to regulate medication abortion.

It also paved the way for amendments in state constitutions that seek to enshrine — or in some cases ban — the right to abortion, ushering in a wave of lawsuits that seek to define the right to reproductive care under state law.

Authoring the majority opinion in Dobbs, Justice Samuel Alito said abortion presented a "profound moral issue" that was up to state legislatures to decide, and criticized the Roe decision, saying it had "enflamed debate and deepened division" among Americans. However, legal experts from organizations at the forefront of those fights say that, far from solving the division Justice Alito alluded to in his opinion, the Dobbs ruling instead has invited massive strife — including a large wave of lawsuits at both the state and federal level.


Legislation Sparks Waves of Litigation

Autumn Katz, an associate director for U.S. litigation at the Center for Reproductive Rights, which has represented Zurawski and many other plaintiffs who are challenging abortion restrictions, says that the courts are being inundated with cases trying to resolve abortion access following Dobbs.

"We have continued to see a large amount of litigation," she said. "There has been an unprecedented level of attack by many hostile states on abortion."

Since Dobbs, dozens of legal battles over abortion rights have begun — and some have already concluded — with varying outcomes. Some states with laws that automatically took effect after the Dobbs decision landed, banning or restricting abortion as soon as the federal right to abortion was vacated, were among the first to be challenged.

Many other states enacted similar laws after the decision. With federal protection missing after the overturning of Roe, the enactment of these laws led to high volumes of state court litigation, often invoking provisions in state constitutions to assert protection for reproductive rights, in particular access to abortion.

A first wave of litigation focused on provisions in state constitutions already in place before the Dobbs decision. Courts in Kansas and Montana, for instance, found that constitutional provisions dealing with the right to privacy, to due process, or to "inalienable rights" allowed for protection of reproductive rights, as well.

That first generation of lawsuits is still ongoing in some states. In a Georgia case, SisterSong v. Georgia, plaintiffs including a collective of women of color, medical clinics and Planned Parenthood have alleged the state's abortion ban violates provisions in the state constitution protecting people's right to privacy and equal protection.

In Wisconsin's Kaul v. Urmanski, the state's high court will decide whether a 175-year-old law — which a party in a separate lawsuit alleged bans all abortion except when the mother's life is at risk — violates the state constitution's provisions protecting the rights to life and liberty and equal protection of a woman and her physician.

But a more recent wave of lawsuits have relied on state constitutional amendments, passed in response to the Dobbs ruling, that explicitly address abortion rights.

In the 2024 elections, citizens in Arizona, Colorado, Maryland, Missouri, Montana, Nevada and New York approved state charter changes enshrining a right to abortion through ballot measures. They joined California, Michigan, Ohio and Vermont, which had added protective language to their state charters in the previous two years.

In Nebraska, voters had a chance to guarantee abortion rights, but instead they upheld a 12-week abortion ban and rejected a separate ballot measure that would have enshrined abortion rights.

Alabama, Arkansas, Louisiana, Rhode Island, Tennessee and West Virginia already had language in their constitutions either clarifying that they do not guarantee a right to abortion or expressing protection for unborn children from conception.

Those states that have recently added abortion protections have become new legal battlegrounds.

"I think you're seeing a kind of next generation of abortion fights play out in state courts," Alicia Bannon, the director of the Judiciary Program at the Brennan Center for Justice, told ¼«ËÙÈü³µ. "State courts can go farther than federal courts in protecting rights."

Current litigation, Bannon said, is showing how far state constitutions and state laws can go in protecting reproductive rights. There are at least 16 lawsuits pending in state courts, and nine of them target abortion bans. Lawsuits that challenge abortion restrictions by invoking state constitutional protections are ongoing in Arizona, Missouri and Wisconsin.

Fights Centering on State Constitutions

Katz said the overturning of Roe v. Wade has sharply divided the nation. States traditionally hostile to abortion have doubled down, making it even more difficult for people to get the procedure. On the flip side, several states have passed shield laws and other provisions to protect access to abortion.

"I think it's become even more polarized since Dobbs," she said.

In November, Arizonans passed — with a nearly 62% approval — a ballot initiative guaranteeing a fundamental right to abortion. The American Civil Liberties Union has since launched two separate lawsuits seeking to enforce the new protections.

The first case, Reuss v. Arizona, was filed about a week after the amendment went into effect on Nov. 25, and sought to block enforcement of a 15-week abortion ban in the state. On March 5, a state trial court permanently enjoined the ban, squarely declaring it "unconstitutional."

The second lawsuit, Isaacson v. Arizona, is ongoing. It involves challenges to several abortion restrictions that ACLU attorneys say make it harder for Arizonans, especially people with low income, people of color and young people living in rural areas, to access abortion.

The restrictions include a 24-hour waiting period for abortion patients between a first appointment, during which they are counseled against the procedure, and the abortion itself; a ban on telemedicine for medication abortion; and a ban on abortion as an option in cases of fetal anomaly.

"All of these restrictions are so burdensome, they are so stigmatizing and they are medically baseless," Rebecca Chan, an ACLU attorney working on the case, told ¼«ËÙÈü³µ. "We're in court to make good on the promise of the amendment and enforce the will of the voters."

The ACLU and Center for Reproductive Rights filed the suit on behalf of two Arizona physicians — Paul A. Isaacson and William Richardson — as well as the Arizona Medical Association, alleging restrictions violate the amendment's provision prohibiting the state from enacting any policy that "denies, restricts, or interferes" with the right to abortion or that penalizes providers.

For an abortion restriction to pass constitutional muster under the amendment, it has to satisfy a compelling state interest — but cannot "infringe on that individual's autonomous decision-making." Also, the restriction must improve or maintain the health of the individual seeking abortion care.

Plaintiff attorneys filed a complaint on May 21 asking a state trial court to stop the enforcement of the restrictions. On Monday, Arizona's attorney general's office filed a reply brief conceding that they "cannot survive constitutional scrutiny" and that the office does not plan to defend them in court. The president of the Arizona Senate and the speaker of the Arizona House of Representatives, however, have intervened in the case, stating that they will seek to defend the laws.

In addition to the fight in Arizona, the ACLU has a pending lawsuit in Missouri representing Planned Parenthood in a challenge against an abortion ban in the state. The suit, filed at the end of November, argues that the ban infringes a recently adopted constitutional amendment that says that "the right to reproductive freedom shall not be denied, interfered with, delayed, or otherwise restricted," except in very narrow circumstances.

Litigation challenging abortion bans continues to play out in other states, as well — North Dakota, Georgia, Indiana, Wisconsin, Wyoming, Kentucky, Louisiana and Utah — as part of protracted legal fights that began in either 2022 or 2023.

"This is definitely a proactive fight that we are fighting in numerous states," Chan said. "It's been really exciting to see people really mobilize and come together, after the really devastating Dobbs decision, to enact new protections and to make clear that what the Supreme Court did in Dobbs is not the will of the people."

Just as a majority of the litigation focuses on whether state constitutions provide a right to reproductive healthcare, there are also cases where the opposite is under scrutiny: whether constitutions place more limits on abortion access.

An ongoing case in Florida, Doe v. Uthmeier, provides an example. Florida, which has a law banning abortion after six weeks of pregnancy with exceptions — up to 15 weeks — for rape, incest or human trafficking, also has a parental consent requirement for minors, as well as a process to waive that requirement through a court order.

On May 14, a state intermediate court in Florida ruled that the consent bypass process violated parents' due process rights. The case is now before the Florida Supreme Court, and could potentially land in the U.S. Supreme Court's docket, given that the state's intermediate court found that the issue of parental rights touches on protections provided by the U.S. Constitution.

There are also looming questions in Florida about whether state constitutions confer rights to fetuses.

In April 2024, the Florida Supreme Court ruled that language in the state constitution guaranteeing "the right to be let alone and free from governmental intrusion" does not give a right to abortion — an about-face from a position it has held since 1989. Florida is also one of the states, along with Nebraska and South Dakota, where ballot measures to adopt abortion rights constitutional amendments failed last November.

"State constitutions can both protect abortion rights, but they can also be used to limit abortion access," Bannon said. "And that's what we're seeing play out in Florida right now."
Fights Over Publicly Funded Abortion Care

On Thursday, the U.S. Supreme Court ruled in Medina v. Planned Parenthood South Atlantic that federal law doesn't give a Medicaid beneficiary who received gynecological care at Planned Parenthood the right to sue South Carolina over its decision to exclude the provider from its state Medicaid program.

The 6-3 ruling has major implications for patients who seek to enforce a federal law provision protecting their ability to freely choose their medical providers. It also paves the way for Planned Parenthood, a nationwide medical provider that, in addition to abortions offers birth control, cancer screenings and STI testing and treatment, to be defunded in South Carolina and in other states.

Alexis McGill Johnson, president and CEO of Planned Parenthood Federation of America, said in a statement posted on the organization's website that the decision was highly political.

"Today, the Supreme Court once again sided with politicians who believe they know better than you, who want to block you from seeing your trusted health care provider and making your own health care decisions," she said. "Make no mistake, the attacks are ongoing and Planned Parenthood will continue to do everything possible to show up in communities across the country and provide care."

But the bulk of legal fights over Medicaid funding for medical clinics performing abortions is playing out in state courts.

Since a Nevada state trial court in September compelled the state's Medicaid program to cover abortion care following a suit filed by the ACLU in August 2023, similar litigation has flared up elsewhere.

"Under the federal constitution, even before Dobbs, you could limit Medicaid funding in that way," said Bannon, of the Brennan Center. "These are examples of states looking to state constitutions to say, well, regardless of what might have existed under federal law, we think our state laws provide these stronger equality protections."

In January 2024, the Pennsylvania Supreme Court ruled that the state's Equal Rights Amendment applied to the Medicaid-funded abortion ban in the state, overturning the dismissal of a lawsuit by a trial court. The ruling sent the case, Allegheny Reproductive Health v. Pennsylvania Department of Human Services, back to the lower courts to evaluate its constitutionality.

A lawsuit challenging limits on Medicaid funding for abortion has also been filed in Michigan, and courts have yet to rule on the issue.

Challenging Abortion Bans and Restrictions

Katz, of the Center for Reproductive Rights, said that cases like the one involving Zurawski show that medical exceptions like the one in Texas aren't working. The center has asked courts in various states to clarify the meaning of those exceptions and made clear to judges that the stakes are high — people risk their lives.

"Doctors are really terrified of providing care. The exceptions are vague. They carry harsh criminal penalties," she said.

In Idaho, the center challenged the only exception allowing abortion in the state — to prevent the death of a pregnant woman — bringing a case on behalf of four Idaho women who were denied abortion care, two Idaho physicians who provide obstetrical care, and the Idaho Academy of Family Physicians.

The case, Adkins v. State of Idaho filed in September 2023, yielded a ruling on April 11, when a state trial court broadened the medical exception to the state's total abortion ban for patients facing life-threatening pregnancy complications.

Katz said the ruling should help doctors understand how to interpret that exception to the ban. If a doctor sees that a patient has a complication and there's a non-negligible risk of the patient dying, the doctor can perform an abortion, if needed.

"It allows physicians to rely on their good faith medical judgment," she said. "Physicians don't have to wait until a patient is already on death's door."

Unlike in Idaho, Texas courts have been unwilling to clarify the medical exceptions to the abortion bans in that state. Ruling in the Zurawski case in May 2024, the Texas Supreme Court vacated a lower court's injunction that had suspended the enforcement of three state abortions laws, including one imposing civil and criminal liability against abortion providers who violate it, one making abortion a criminal offense, and another prohibiting abortions after a fetal heartbeat is detected, typically around six weeks of pregnancy.

But challenges to medical necessity exceptions in at least two states are still viable and pending. One of them, Blackmon v. State, was filed in Tennessee in January 2024 by the Center for Reproductive Rights. A state trial court found that the plaintiffs were likely to prevail on each of their claims — at least as they related to certain maternal medical conditions that both parties agreed were covered by the exception — and issued temporary relief clarifying that the exception applies to those conditions.

Diana Salgado, the national legal director at Planned Parenthood, told ¼«ËÙÈü³µ in a recent call that the organization continues to focus on "high-profile impact litigation."

On June 9, the Montana Supreme Court shut down several abortion-related restrictions as violating the right to privacy expressed in the state constitution. Those included a 20-week abortion ban, restrictions on medication abortions, and a requirement that abortion providers give patients an opportunity to view an ultrasound and listen to a fetal heartbeat.

Another case, Planned Parenthood v. Urmanski, currently before the Wisconsin Supreme Court, centers on the constitutionality of Wisconsin's 1849 abortion ban. In a suit filed in February 2024, Planned Parenthood argues the ban violates the state constitution's protections for life, liberty and equal protection.

Meanwhile, the Center for Reproductive Rights has pending litigation in several states. An ongoing case in Montana involves requirements that the state seeks to apply to abortion clinics that make it harder for them to be licensed in order to practice.

Katz said the volume of litigation surrounding abortion had been high even before the Supreme Court decided the Dobbs case. But since that ruling, the scope of litigation has shifted.

"Before, we were fighting restrictions on access," she said. "Now in many cases, we're trying to fight total bans."

--Editing by Nicole Bleier.