The fall of Roe v. Wade shifted the battleground over abortion to courthouses around the country Monday, as abortion foes looked to quickly enact statewide bans and the other side sought to buy more time.
The U.S. Supreme Court’s decision Friday to end constitutional protections for abortion opened the gates for a wave of litigation from all sides.
Many of the court cases will focus on “trigger laws,” adopted in 13 states in anticipation of the ruling and designed to take effect quickly. Lawsuits could also target old anti-abortion laws that went unenforced under Roe, and cases over abortion restrictions that were put on hold awaiting the Supreme Court ruling have also started to come back into play.
“We’ll be back in court tomorrow and the next day and the next day,” Nancy Northup, president and CEO of the Center for Reproductive Rights, which argued the case that resulted in Supreme Court ruling, told reporters in a video call Friday.
On Monday, abortion rights advocates asked a Florida judge to block a new state law, which bans abortions after 15 weeks with some exceptions and is set to take effect this week. Attorneys hoping to stave off a ban on abortion in Louisiana filed a lawsuit arguing state laws are unclear on when a ban can take effect and what constitutes an exception.
The American Civil Liberties Union of Arizona and an abortion-rights group filed an emergency motion Saturday seeking to block a 2021 law that they worry can be used to halt all abortions. The Planned Parenthood Association of Utah has already challenged a trigger law with narrow exceptions.
Brigitte Amiri, deputy director of the American Civil Liberties Union’s Reproductive Freedom Project, said the organization is looking at “all options” to protect access to abortion. As of Saturday, abortion services had stopped in at least 11 states—either because of state laws or confusion over them.
But in some cases, the lawsuits may only be a play for time. Even if courts block some abortion bans or restrictions from taking hold, lawmakers in many conservative state could move quickly to address any flaws cited.
That’s likely to be the case in Louisiana. The state’s Republican attorney general, Jeff Landry, took to Twitter on Friday to say bans with “trigger” provisions passed in anticipation of the ruling were immediately in effect. The only three clinics providing abortions in the state closed that day.
The plaintiffs in the lawsuit filed Monday in state court in New Orleans—including one of those clinics—don’t deny that Louisiana can now ban abortion. Instead, they contend current laws are confusing and unconstitutionally vague, according to the legal brief.
Days before Friday’s Supreme Court decision, Gov. John Bel Edwards, an anti-abortion Democrat, signed a measure into law that supporters said would clarify and eliminate any conflicts in anti-abortion laws already in state statutes. The sweeping bill includes prison terms of up to 10 years for any doctor who performs an abortion.
Like other anti-abortion statutes already on the books, it contained trigger language saying it would take effect if Roe was overturned. The lawsuit argued that left multiple, conflicting trigger mechanisms in state law.
Attorneys behind the lawsuit also alleged state law was still unclear on whether it banned an abortion prior to a fertilized egg implanting in the uterus. And while the new law provided an exception for “medically futile” pregnancies—in cases of fetuses with fatal abnormalities—the plaintiffs noted the law gave no definition for the term, leaving it up to the state health department to develop.
That makes it impossible for doctors to know what is and is not prohibited under the law, Joanna Wright, one of the attorneys filing the Louisiana suit, said.
Challenges to other trigger laws could be made on the grounds that the conditions to impose the bans have not been met, or that it was improper for a past legislature to bind the current one to a new law. Laura Herner, a professor at Mitchell Hamline School of Law in St. Paul, Minnesota, said trigger bans or restrictions could also be challenged using equal protection arguments.
She said other challenges might call into question whether laws sufficiently and clearly allow for exceptions to protect the life or health of a pregnant woman.
Newly written bans, too, will likely face challenges. Instead of relying on a constitutional protection at the federal level, abortion rights supporters will make the case that state constitutions guarantee the right to abortion.
A judge heard arguments on that issue Monday in Florida, where attorneys sought an emergency injunction to stop a new law from taking effect Friday. The ban beyond 15 weeks has exceptions to save the pregnant woman’s life or prevent physical harm or in cases where the fetus has a fatal abnormality. The ACLU of Florida has argued it violates the state’s constitution.
Still other cases could be filed as states try to sort out whether abortion bans in place before Roe was decided—sometimes referred to as “zombie laws”—apply now that there is no federal protection for abortion.
For instance, Wisconsin passed a law in 1849 banning abortions except to save the life of the mother. Attorney General Josh Kaul, a Democrat, said he does not believe it’s enforceable. Pro-Life Wisconsin and other abortion opponents have called on lawmakers to impose a new ban.
In the meantime, Planned Parenthood of Wisconsin said it immediately suspended all abortions, though the district attorneys in the counties that include Madison and Milwaukee have both suggested that they would not enforce the ban.
In Michigan, Planned Parenthood was proactive, challenging a 1931 abortion ban ahead of the Supreme Court ruling. In May, a judge said the ban could not be enforced because it violates the state’s constitution. Abortion rights supporters are now trying to get a proposed state constitutional amendment on the ballot in November to spell out that people can make their own decisions about abortion and birth control.
Advocates and experts also expect to see court fights over state efforts to pursue legal action against people who cross state lines to seek abortions — or to protect people from such action.
Idaho, Oklahoma and Texas have adopted laws that allow people to seek bounties against those who help others get abortions. There’s a question over whether that means people can be pursued across state lines—and some states acted to prevent that.
For instance, the California Legislature, controlled by Democrats, passed a bill Thursday to shield abortion providers and volunteers in the state from civil judgments imposed by other states. In liberal Massachusetts, Gov. Charlie Baker, a Republican, signed an executive order on Friday that prohibits state agencies from assisting other states’ investigations into anyone who receives or delivers reproductive health services that are legal in Massachusetts.
“It’s going to be very confusing and have a lot of moving parts and the patients are really going to be the ones who bear the brunt of this. There’s going to be a lot of confusion about where people can access abortion,” said Amiri, of the ACLU.