Insight

Evolving Laws and Litigation Post–Dobbs: The State of Reproductive Rights as of November 18

November 18, 2022

The recent midterm elections produced many important developments in the area of reproductive rights and set the stage for future legislative action at the state level. We also continue to see important decisions from state courts regarding the constitutionality of existing laws.

Reproductive rights fared well in the November elections. Voters in California, Michigan, and Vermont approved constitutional amendments that establish rights to reproductive freedom. Meanwhile, an amendment that would have restricted abortion access rights in Kentucky and a legislative referendum in Montana on medical care for infants “born alive” after abortion failed by wide margins.

Candidates who championed reproductive rights also won critical gubernatorial elections in Arizona, Kansas, New Mexico, Michigan, Pennsylvania, and Wisconsin. Abortion opponents made some gains as well. The incumbent governor of Nevada, who was a vocal supporter of reproductive rights, lost to a more conservative opponent. Republicans also secured a filibuster-proof majority in Nebraska, opening the door to more restrictive laws in that state.

There were also developments outside the elections. A state judge in Georgia ruled that its fetal heartbeat law was unconstitutional and Kentucky’s Supreme Court held oral arguments in a case challenging its laws. In addition, Republicans in the Ohio Legislature are returning for the final weeks of their 2022 session and there is reportedly interest in taking up a new abortion law.

Election Impacts

Amendments

The election results indicated generally broad support among voters for protecting reproductive rights, including in typically conservative states like Kentucky and Montana.

Constitutional amendments enshrining the right to reproductive freedom in Michigan and Vermont passed with roughly 56% and 76% of the vote, respectively. Votes are still being counted in California, but its amendment received 66% of the vote as of this writing.

The vote in Michigan effectively ends the legal battle over the enforceability of a pre-Roe criminal statute as the amendment prohibits any regulation of abortion prior to fetal viability. The California and Vermont amendments appear to ban any regulation of abortion except when justified by a “compelling state interest.”

In Kentucky, 53% of voters rejected an amendment that said there was no right to abortion in the state constitution—this amendment would have restricted abortion access rights. A legislative referendum in Montana that was tangentially related to abortion—requiring medical care for “infants born alive” after abortion—failed after receiving only 47% support.

Neither result will have an immediate substantive impact on state law but, as discussed below, the result in Kentucky could factor into the Kentucky Supreme Court’s decision in cases challenging the constitutionality of Kentucky’s existing abortion laws.

Candidates

Candidates who supported access to reproductive rights also fared well in individual elections. Incumbents who resisted efforts to pass new restrictions post-Dobbs in Kansas, Michigan, and Wisconsin were reelected. New candidates who pledged to support abortion access won in Arizona, New Mexico, and Pennsylvania as well. Finally, Republican efforts to elect veto-proof legislative majorities to end their Democratic governors’ efforts to block abortion restrictions and other policy initiatives fell short in Wisconsin and North Carolina.

There were also victories for abortion opponents. In Nevada, the incumbent governor lost to a challenger who favors abortion restrictions. That may lead to a repeal of the state’s executive order protecting women from prosecution for seeking an abortion. In addition, Republicans in Nebraska seem to have secured a filibuster-proof majority in the state’s unicameral legislature, opening the door for a stalled 12-week ban on abortion to pass in the next session.

Some important races are still too close to call. For example, the attorney general races in Arizona are still undecided as of this writing. The outcome of that race will likely determine the fate of Arizona’s pre-Roe criminal ban.

State Litigation

Georgia

A state judge of the Superior Court of Fulton County ruled on November 15 that Georgia’s existing fetal heartbeat abortion law was unconstitutional and therefore void.

Georgia’s law was passed in 2019 and had an effective date of 2020. The law was enjoined by a federal district court pursuant to the Supreme Court precedents in Roe and Casey. Georgia appealed the decision, but the proceedings were placed on hold pending the outcome of Dobbs. Shortly after Dobbs was ruled, the US Court of Appeals for the Eleventh Circuit lifted the prior injunction and permitted the law to go into effect.

Reproductive health rights organizations subsequently filed a challenge in state court, alleging that the law violated the Georgia Constitution. They also argued that the law should be struck down as it was unconstitutional at the time it was enacted. The state court agreed with that second argument, finding that the law was void after enactment since it clearly contradicted existing precedent.

This is the first time that a court has used this argument to invalidate a statute. We expect that the decision will be appealed.

Kentucky

Kentucky’s Supreme Court heard oral arguments in cases challenging the constitutionality of the state’s two abortion laws on November 15. Reproductive health rights groups allege that Kentucky’s six-week ban and near-total ban on abortion after conception violate privacy rights protected by the Kentucky Constitution.

The cases would have been moot if Kentucky voters had passed the proposed amendment stating that there was no right to abortion in the state constitution. The defeat of that amendment gives the court room to rule in favor of abortion protection.

Decisions in the cases are not expected for several months.

State Legislation

Ohio

Michigan, New Jersey, and Ohio are the only state legislatures that remain in session. After the elections, news outlets reported that there was interest in taking up new abortion legislation in November and December in Ohio.

There are two proposals the legislature may consider. The first would be a bill aimed at clarifying aspects of Ohio’s existing fetal heartbeat law in the hopes of shoring it up against ongoing legal challenges. At least one news report indicates that the Ohio Senate will focus on a measure along those lines after Thanksgiving.

The second would be a near-total ban on all abortion after conception except when necessary to save the life of the pregnant person. That policy is reflected in H.B. 598/S. 123. The bills would also ban “promoting abortion,” which they define narrowly as manufacturing, possessing, distributing, or advertising medication or instruments capable of causing an abortion and primarily used to cause abortion to recipients who the person knows have an intent to cause an abortion. Violations of the abortion prohibition would be criminal felonies punishable by up to two years in prison and a $2,500 fine. Promoting abortion would be a criminal misdemeanor punishable by up to 180 days in prison and a $1,000 fine. Neither bill has gone through committee yet.

Ohio law currently bans abortion after the detection of a fetal heartbeat, or roughly six weeks after conception. That law was enjoined by a state court, which held that it violated the Ohio Constitution. The attorney general of Ohio has appealed that ruling.

South Carolina

The current effort to pass new restrictions on abortion access in South Carolina officially ended on November 13 with the formal adjournment of the legislature. Members of a committee appointed by the state Senate and House met on November 9 to negotiate differences in their respective bills. Those efforts failed. The Senate then voted on the House proposal, which would ban nearly all abortion after conception, and formally rejected it for the third time.

South Carolina’s legislature will return for a new session in January 2023. Republicans gained several seats in the state House on election night but the membership of the South Carolina Senate will remain the same in the new session.

Reproductive Rights: Post–Dobbs Impact

Our Reproductive Rights Task Force is closely monitoring and analyzing the impact of state laws regulating abortion access to advise clients on how best to respond. Visit our centralized portal, which aggregates our insights and analyses of Dobbs and its subsequent influence on state laws throughout the United States.

Contacts

If you have any questions or would like more information on the issues discussed in this Insight, please contact any of the following:

Sharon Perley Masling
E. Pierce Blue
Saghi (Sage) Fattahian
Jonathan Zimmerman