Recent developments reinforce the importance of state litigation to reproductive rights post-Dobbs. In Indiana, a court blocked enforcement of the state’s new abortion prohibition, finding that the ban could contravene rights protected by the Indiana Constitution. In contrast, a judge in Pima County, Arizona, lifted an injunction on the enforcement of a restrictive pre-Roe abortion law, potentially banning nearly all abortion in the state.
There also continues to be movement on this issue in state legislatures. South Carolina’s House of Representatives returns to session this week to consider amendments to the fetal heartbeat law passed by the state’s Senate in early September. In addition, the governor of Wisconsin announced a special session to consider legislation allowing voters to repeal state laws through binding referenda, citing the state’s pre-Roe abortion ban as an initial target for repeal.
In a ruling published September 22, 2022, a judge on Arizona’s Superior Court lifted a 1973 injunction against enforcement of Arizona’s pre-Roe abortion law. The judge found that Roe was the sole reason the injunction was put in place and held that there was no legal justification to maintain it now that Roe has been overturned.
The pre-Roe law, which was originally passed by Arizona’s territorial legislature in 1864, bars all forms of abortion after conception unless necessary to save the life of the pregnant person. It also prohibits anyone from publishing or otherwise assisting in publishing a notice or advertisement for abortion or prevention of conception, though Arizona did not ask the court to lift the injunction on enforcement of that provision.
It is not clear how Arizona will balance enforcement of this law with its recently enacted 15-week abortion ban, which went into effect on September 24, 2022. There may not be a definitive answer until after Arizona holds its elections for governor and attorney general in November.
A judge on Indiana’s Monroe County Circuit Court issued a preliminary injunction against Indiana’s newly enacted abortion law on September 22, 2022. The decision is notable as it explicitly states that the Indiana Constitution likely protects decisions about family planning, including whether to carry a pregnancy to term, even if the US Constitution does not.
Indiana became the first state to enact a new abortion ban post-Dobbs when it approved a law in early August that prohibited all forms of abortion after conception except for cases of medical emergency, lethal fetal anomaly, or cases of rape or incest in the first 10 weeks after fertilization. The law had gone into effect on September 15, 2022, but enforcement is now paused.
The defendants in the case, the Medical Licensing Board of Indiana, are expected to appeal the decision.
Wisconsin Governor Tony Evers signed an executive order on September 22, 2022, calling the state legislature into special session to consider a proposal allowing binding referenda and ballot initiatives in Wisconsin. The governor is framing the legislation as a path for voters to repeal Wisconsin’s pre-Roe criminal ban on abortion. The legislature, which has a Republican majority, will meet on October 4, 2022, to debate the proposal.
Wisconsin law currently bans abortion at 20 weeks. The pre-Roe ban, which is not being enforced, prohibits all forms of abortion from conception except when necessary to save the life of the pregnant person. The Wisconsin attorney general is currently seeking a permanent injunction against enforcement of the pre-Roe law in state court.
The South Carolina House of Representatives returned to session on September 27 to consider amendments to the state’s existing fetal heartbeat law. The House passed a near-total ban on abortion after conception in a special session held in late August, but the Senate deadlocked on the proposal. The Senate instead opted to approve amendments limiting the rape and incest and fetal anomaly exceptions in the existing law. While there is likely majority support for the amendments in the House, it is not clear if the House will pass them or continue to insist on the near-total ban.
Constitutional amendments or other measures related to abortion will be on the ballot in five states in November’s general elections.
In California, Michigan, and Vermont, state constitutional amendments explicitly protecting a person’s right to an abortion, reproductive freedom, and/or personal reproductive autonomy, respectively, will be up for approval.
Voters in Kentucky will decide on an amendment that says nothing in the state constitution “shall be construed to secure or protect a right to abortion or require the funding of abortion.” Kentucky law already bans abortion in nearly all cases after conception.
In Montana, where some access to abortion remains protected by the state constitution, voters will be asked to approve a legislative measure asserting a compelling state interest in protecting the life of an “infant who is born alive” following an abortion and requiring that healthcare providers take all medically appropriate and reasonable steps to preserve the life of an “infant who is born alive” following an abortion. The measure defines “infant who is born alive” as an infant who at any stage after the complete expulsion or extraction from the pregnant person has a beating heart or has definite movement of voluntary muscles. The legal impact, if any, of approval of this law is unclear.
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