Alongside the new bans on abortion, laws have popped up to encourage people to snitch on their neighbors and empower prosecutors to file criminal charges. So-called personhood laws are exposing more people to heightened punishment, plus endangering access to other procedures like IVF. The Republican Party has proposed scaling that up further by codifying ‘personhood’ at the federal level.

But pregnancy was policed long before the Dobbs decision came down. Even under Roe, many women faced arrest and prosecution due to allegations over how they handled their pregnancy.

Grace Howard meticulously lays out this history in her new book The Pregnancy Police: Conceiving Crime, Arresting Personhood. An associate professor of justice studies at San José State University, Howard has studied over 1,000 pregnancy-related arrests since 1973, a period that saw the rapid growth of the war on drugs. Her book reconstructs how legal statutes and surveillance tools were used to punish not just abortions, but also stillbirths and miscarriages.

As part of our “Ask Bolts” series, we invited you to ask Howard any question you had about the policing of pregnancy. And once again, you delivered with many thoughtful questions, touching on everything from landmark court cases to new technology. We narrowed your submissions to just nine reader questions to share with Howard, also throwing in a tenth from our own staff.

Howard replies to your questions below, sharing what gravely worries her about the realities of policing and surveillance today, but also finding advocacy to be hopeful about. We’ve organized your questions under four themes—explore at your leisure:

Decades of policing

The realities of criminalization today

Standards of care

What lies ahead?

Read on to learn more about the most consequential legal cases, new tools of surveillance, and a lot more.

Decades of policing

Dobbs galvanized more attention on reproductive rights, but you began your research on the policing of pregnancy long before that decision. What was happening in the decades that your book covers—what has criminalization looked like, besides restrictions on abortion? And what made you start paying such close attention to it? — Bolts staff

In the decades before Dobbs, there was a lot of action in the courts and in state legislatures carving out fetal personhood beyond the scope of abortion. Fertilized eggs, embryos, and fetuses were defined as legal persons in tort law. Pointing to the reality of homicidal violence against pregnant people, pregnancies were defined as crime victims, independent of the people gestating them. 

After Roe, criminalization began in earnest in the 1980s, as the “War on Drugs” drove punitive approaches to social issues, and the anti-abortion movement became a more organized political force. Panic over crack cocaine led to a focus on impoverished Black women who tested positive for the drug while pregnant. 

Most pregnancy criminalization cases involve a positive drug test, but other arrest cases involve self-harm, car accidents, self-managed abortion or miscarriage, failing to protect a fetus from third party violence, and even failure to take good care of themselves. 

Though I had been very passionate about sexual and reproductive health issues, I actually didn’t realize that the criminalization of pregnancy was happening until grad school. We read Dorothy Roberts’ Killing the Black Body and I was forever changed. I was outraged—that it was happening, that so many people either didn’t know or didn’t care. And, there were some great law review articles on it, but not a lot of data. So, I decided I wanted to do something about that. 

What are some landmark legal cases related to the criminalization of pregnancy that concerned citizens should be aware of, and what were their implications? — Chrissy T.

This issue has only come before the Supreme Court once, in Ferguson v. City of Charleston, a 2001 case. This case began as a lawsuit against the Medical University of South Carolina, which had adopted a policy of drug testing certain pregnant patients and reporting positive tests to law enforcement. By the time the case got to SCOTUS, it wasn’t about whether we could punish pregnant folks for crimes against their pregnancies, it was about illegal searches and seizures: Can you drug test a patient for the purposes of law enforcement activity alone, without reasonable suspicion or a warrant? The court said no, you can’t. 

And yet this hasn’t stopped the practice: The case only ever applied to public medical facilities, and healthcare providers can essentially lie about why a drug test is offered. 

Today, drug testing and reporting of pregnant patients and newborns is common and widespread, though most of the time the reports result in family court cases, not criminal ones. 

Another notable case is ex parte Ankrom (2013), which is when the Alabama Supreme Court said that a 2006 law passed by Alabama to punish the chemical endangerment of a child could also be applied to pregnancy. Despite the law saying nothing about pregnancy, the court basically defined fertilized eggs as “children” and uteruses as contaminated “environments.” Though pregnancy-related arrests started years before Ankrom, the decision emboldened prosecutors and opened the door to further legal developments. 

For example, the Alabama Supreme Court case earlier this year that defined embryos created by IVF as extrauterine children, endangering the procedure in the state, cited Ankrom multiple times as precedent.

What does your research show about the way women of color and low income women have been treated on this front during the period you studied, versus white women and higher income women? — Morgan M., from California

The criminalization of pregnancy is inherently racist. Across the U.S., the drugs that women of color are more likely to use have been treated with more scrutiny and have been uniquely stigmatized than those used by white women, despite comparable rates of substance abuse. 

Alabama has been a somewhat different story, in that the racial composition of the arrest pool is much more comparable to state demographics—although this does not mean that it has a racially egalitarian criminal justice system. Alabama’s criminalization period started in 2006, when the big drug panic was related to home-cooked methamphetamine. This focus on meth, and the drug’s association with impoverished white people, led to a wave of them being targeted. 

In my book, I explore rhetorical connections between the panic over so-called “meth babies,” to the early U.S. eugenics movement’s focus on impoverished white people—a white supremacist attempt to shore up the strength of the “white race” by eliminating the whites on the fringes. While information on income was not available in all of my cases, I was able to see if a defendant qualified for a public defender. Perhaps unsurprisingly, the vast majority of the people who were arrested in my study were impoverished enough to qualify for public defense. 

The realities of criminalization today

When I was pregnant in MA in 2021, I was told that because I had a medical marijuana card prior to being pregnant, I could be drug tested at any point in my pregnancy, even though I reported not using it while pregnant. When I read up on the legality of that, I found out that women testing positive for marijuana during delivery accounted for the largest share of referrals to the Department of Children and Family Services. I would love to know more about how marijuana can be legal in a state but criminalized for pregnant people. — Mae, from Massachusetts

Unfortunately, there are a lot of areas of law where pregnancy knocks a person down a peg, legally. You can lose some of your most fundamental rights, including the right to reject medical treatment, the right to privacy, the right to liberty. And people who are reported to Child Protective Services for using drugs during pregnancy usually lose their children at least temporarily—an inherently traumatizing experience. This has included people who use legally prescribed medications, including marijuana.

A case on this question just came out of Oklahoma. The state’s Court of Criminal Appeals ruled that you cannot be prosecuted for using medical marijuana while pregnant; local prosecutors were trying to charge multiple women with criminal neglect. This does not, however, prevent CPS from getting involved—this would be left up to the discretion of the relevant agency.

I’m in Virginia, the last state in the South with access to abortion, and law enforcement here has advocated for a wide expansion of Automated License Plate Reader (ALPR) technology across the commonwealth. Attorneys general across the country have articulated their desire to access this sort of data to track movements of pregnant people to see if they access abortion care across state lines. What are some of the dangers of expansive surveillance networks, like Flock’s ALPR networks, and how does that apply to access to care? — Shawn W., from Virginia

Some of the key differences between today and the last time abortion was criminalized are that our criminal justice apparatus has expanded considerably, as have our surveillance networks.

All forms of electronic surveillance, from ALPR to credit card transactions can potentially be used as evidence in a pregnancy case. Law enforcement can get clearance to examine your text messages, your search history, your credit card statement, and even GPS data to track your location. I worry that this will frighten people away from using the internet to find safe ways of self-managing pregnancies, to arrange travel out of state, or even to find support in understanding what options and resources are available. This leaves people who need abortions isolated.

That being said, we haven’t found a single case where a person was “caught” because of their digital footprint. Everyone who has been arrested, to date, was found because a person told on them: a neighbor, a boyfriend, a nurse. We need to be cautious about who we talk to.

Is performing an abortion the only situation in which these laws apply criminal liability to men? — Alan M., from Washington

So far, yes, the only situation where cisgender men have faced prosecution is for performing abortions. But some states have also been exploring the criminalization of abortion “helpers.” A new Louisiana law goes into effect on October 1 that will classify abortion pills as “controlled dangerous substances.” Any non-pregnant person found to be in possession of these substances without a prescription has committed a crime–even if that person has secured the medication for their own future use in the event of an unplanned pregnancy.

Meanwhile, in family court, there have been a few cases where men have been targeted; not for using drugs themselves, but for failing to prevent their wives from using drugs. This is reminiscent of the law of coverture, a “olde time” legal doctrine from English common law, that basically treated women like legal dependents of whichever man they were attached to—a father or brother or husband. Men were held responsible for “making” their wives behave.

Standards of care

How do these laws affect women with ectopic pregnancies? My friend had an ectopic pregnancy after her daughter was born; the doctors recommended she have tubal ligation to ensure no additional similar pregnancies. — Kirsten, from Maryland

In case readers don’t know, an ectopic pregnancy is a pregnancy where the fertilized egg has implanted somewhere other than the uterus, most often in the fallopian tube. These pregnancies are never viable, and they are extremely dangerous, as the growing embryo can cause tissues to tear and organs to rupture. These must be treated by ending the pregnancy with surgery or with a medication called methotrexate. 

Ectopic pregnancies have been in the news since the Dobbs case, because these medical emergencies bump up against vague laws banning abortions. Healthcare providers are put into a position where they have to wonder: Will offering this life-saving care result in the loss of my medical license, or even my incarceration? For example, in Texas, healthcare providers face 99 years in prison if a prosecutor decides they have violated the abortion ban. In practice this means that emergency medical care can be dangerously delayed while lawyers try to decide whether or not your doctor is allowed to help you. 

This is what happened to Kelsie Norris-De La Cruz, a 25-year old woman in Texas who was ordered to go home and wait after she was diagnosed with an ectopic pregnancy, as there was a chance the pregnancy was still “alive.” She was unable to receive care until her fallopian tube began to rupture. 

(Editor’s note: A new investigation published this week by the Associated Press identified the cases of 100 pregnant women who were denied emergency service in different states.)

How have healthcare providers become part of this apparatus of criminalization? Are there certain things they have to report if they notice them? — Anonymous | Why doesn’t federal HIPPA protect women from states accessing their medical records? — @cyndtrueme, on X   

Healthcare providers are the primary gatekeepers for this whole thing: Of the over 1,000 pregnancy-related arrest cases that I studied, 75 percent originated by a healthcare provider making a report. 

There are two federal laws to consider: HIPAA and CAPTA. HIPAA is basically a record-sharing law that places some limits on when medical information can be shared. In general, without your permission, information can only be shared when a person thinks a patient is a direct threat to themselves or others. Healthcare providers have made reports based on their belief that a fertilized egg, embryo, or fetus is a child facing imminent harm.

CAPTA (the Child Abuse Prevention and Treatment Act) provides federal funding for the “prevention, assessment, investigation, and treatment” of child abuse. Many healthcare providers assume (or are advised) that CAPTA specifically requires that states define substance use during pregnancy as child abuse, and mandate reports to authorities, but this is incorrect. CAPTA does not require prosecution, drug testing, or filing abuse reports of babies exposed to drugs in utero. 

What lies ahead?

The GOP’s official policy platform adopted at the RNC wants more states to establish ‘fetal personhood’ laws. Can you explain what the impact of this would be? — Anonymous

The GOP platform endorses the idea that the U.S. Constitution defines fertilized eggs, embryos, and fetuses as full legal persons. (Editor’s note: Courts have not recognized this conservative interpretation of the Fourteenth Amendment, but there are signs that several justices are open to it.) I can’t overstate how impactful this would be. Anybody with the capacity for pregnancy, or who even looks like they have the capacity for pregnancy, would be suspect at all times, and lose the right to medical privacy. They would be banned from doing anything considered (rightly or wrongly) unsafe for a pregnancy, from a seemingly endless list of foods and beverages that are off limits, to forms of medical care including abortion. They would lose the right to medical privacy, and we would nullify advance directives (legal documents where a person states their decisions about life-sustaining care should they become incapacitated) during pregnancy. They could be fired from jobs deemed unsafe. Pregnant people who are abused by their partners could be charged for failing to protect their “unborn child.” 

You can’t have fetal personhood and full legal recognition of people with the capacity for pregnancy at the same time: You are a womb before you are a person.

The bulk of the legal action establishing fetal personhood comes from states. One horrifying reality is that homicide is a leading cause of death for pregnant women, usually at the hands of their intimate partners. Instead of focusing on the factors that make pregnant people more vulnerable to homicidal violence, 38 states have responded by defining fertilized eggs, embryos, or fetuses as potential crime victims. The legislation is sometimes inspired by specific cases that get a lot of press coverage and cause public outrage—most often involving a white victim. For those of us who care about intimate partner violence, this might seem like a great solution to a terrible problem. I argue, however, that these laws are trojan horses, establishing fetal personhood in the criminal code under the auspices of protection. In turn, these very laws have been used as precedent to establish fetal personhood elsewhere in state law, and have been used to punish pregnant women deemed to have endangered or harmed their own pregnancies. 

Are there grassroots groups that you see are doing a good job fighting against this? — I’m worried, from Ohio

It is easy to feel overwhelmed when I think about the work that needs to be done. Thankfully, none of us have to do this work alone, and there are many groups and organizations fighting back. There are two legal advocacy organizations worth looking into: Pregnancy Justice provides legal defense, guidance, resources, and education for cases involving pregnancy criminalization and CPS reporting. If/When/How also does amazing work on legal defense in abortion cases, and they operate both a legal help hotline and a Repro Legal Defense Fund to help cover bail and legal fees. 

There are also some local and state-specific groups working on this, including Healthy and Free Tennessee, Sister Reach, and Sister Song, which focuses on the South. One of the most powerful things you can do right now is to get involved with your local abortion fund or practical support network. Not only do they help fund abortions and make arrangements for people who need support, but they also support folks who want to continue their pregnancies, give birth, and parent their children. They are the grassroots backbone of the reproductive justice movement.

The post How Pregnancy is Policed: Your Questions Answered appeared first on Bolts.

Ever since the Arizona Supreme Court upheld a near-total abortion ban this month, pro-choice advocates have rushed to reverse it. They’ve pushed the GOP-run legislature to repeal the law, to no avail so far. They’ve defended the Democratic governor’s order blocking enforcement of the ban from legal pushback. And now they’re close to placing a constitutional amendment protecting abortion on the November ballot. 

If these statewide solutions fail, though, they’re at least eying Arizona’s local prosecutors as the backstop to an outcome they dread: the prospect of people facing criminal charges—and prison terms—over abortions.

“The least our county attorneys can do is commit that they would not prosecute those cases,” said State Representative Analise Ortiz, a Democrat whose district covers parts of Maricopa County. “They absolutely should do that to bring relief to the millions of people who are scared by this decision.”

Whether such a backstop materializes in Maricopa County—a giant jurisdiction home to more than four million residents in Phoenix and its surrounding areas—is going to come down to November’s prosecutor race.

Maricopa County Attorney Rachel Mitchell, a Republican who is up for reelection this year, reacted to the ruling with a statement vowing that women would not be “prosecuted for receiving an abortion,” and especially calls out that she would not prosecute abortions that stem from rape, incest, or molestation. The statement did not, however, address whether she would prosecute doctors who provide abortions. Just days prior, Mitchell had said she’d enforce Arizona’s abortion law “whatever that law is.” She has also denounced as unlawful a gubernatorial order barring county attorneys like herself from prosecuting abortion. 

Mitchell’s only Democratic challenger, Tamika Wooten, promises she won’t pursue such prosecutions if she becomes county attorney. 

“I will not prosecute a woman for her personal health care decisions, nor will I prosecute the medical provider who performs that,” Wooten, a former local prosecutor and defense attorney, told Bolts. “That is a very serious and personal decision that a person must have with themselves and with their health care provider, and it’s not my business.”

Mitchell’s office on Monday declined to answer questions from Bolts about whether she would prosecute doctors that provide abortion, only referring Bolts to her April 9 statement that does not mention medical providers. “That statement, in its entirety, is the information being provided at this time,” said a spokesperson for the office. 

Arizona’s revived ban, which dates back to 1864, mandates two to five years in prison for doctors who provide an abortion except when it’s to save a patient’s life.

In 2022, the GOP passed a separate law banning abortions after 15 weeks; that law also makes it a felony for doctors to violate those restrictions. 

Even if Arizona repeals the 1864 law, that would still leave in place this 15-week ban and its share of criminal penalties.

Wooten criticized Mitchell for not ruling out charges against medical professionals. “If you say you’re not going to prosecute the woman but you’re not quite sure if you’re going to prosecute the medical professional, licensed medical professionals are going to be wary of that,” Wooten said. “That’s gonna force a woman to go to a back alley. Now we’re subjecting women to all kinds of unsafe, unsanitary procedures… because our licensed professionals are afraid that they’re going to be prosecuted.” 

Wooten added, “We need to make sure that the people who are licensed and able to perform these can do it confidently without fearing felony prosecution or prison.”

In the GOP primary in August, Mitchell first faces a rematch against Gina Godbehere, a conservative who used to work as a prosecutor in the county attorney’s office; Godbehere did not reply to Bolts but has echoed Mitchell’s position on abortion in the past. 

Arizona’s 14 other counties also elect their chief prosecutor this year, but a statewide analysis by Bolts found that most of these races aren’t even contested, and among those that are, Maricopa County is unique in featuring a stark contrast on the issue of criminalizing abortion. It’s the only Arizona county where there’ll be at least one candidate on the ballot this year pledging to not prosecute abortion, and at least one candidate who hasn’t made that assurance. 

This single race, though, will have outsized resonance, since it’s playing out in the county that by itself is home to most of the state’s abortion clinics and the majority of Arizona’s population.

Mitchell was just a line prosecutor in the Maricopa County prosecutor’s office in 2018, when she was tapped by U.S. Senate Republicans to interrogate Christine Blasey Ford during Brett Kavanaugh’s Supreme Court confirmation hearings. In 2022, the same year Kavanaugh voted to strike down federal protections for abortion in the Dobbs decision, Mitchell was appointed Maricopa county attorney after her predecessor’s surprise resignation.

Mitchell then prevailed in a 2022 special election that closely mirrored the upcoming election. In the immediate aftermath of the Dobbs ruling, she defeated Godbehere in the Republican primary and then beat another pro-choice Democrat by six percentage points.

The state supreme court’s shock decision this month to trigger Arizona’s Civil War-era abortion ban has once again underscored the stakes of who occupies the local county attorney offices with a hand in enforcing it. Still, the exact role these county attorneys will play in either protecting or prosecuting abortion remains unsettled.

Statewide Democratic officials are currently trying to block county attorneys from targeting abortion. Governor Katie Hobbs issued an executive order last year that transferred all abortion cases to Attorney General Kris Mayes, who has pledged to never prosecute them. Combined with Mayes’ promise, Hobbs’ executive order moots the threat of criminal prosecutions for abortion—at least on paper.

But this guardrail is far from ironclad. Hobbs and Myers, who each won very narrow races in 2022, are both up for reelection in 2026. Were they to lose to anti-abortion Republicans in the future, their replacements could revert these cases to county attorneys or bring charges.

More urgently, many county attorneys, including Mitchell, are arguing that Hobbs’ order is invalid and say the governor lacks the legal power to give their cases to the attorney general. 

“It is a substantial overreach to suggest the governor may strip away prosecutorial discretion from local, elected officials,” Mitchell wrote in a letter to Hobbs last year. Jeanine L’Ecuyer, chief of communications for her office, reasserted Mitchell’s position this week, telling Bolts that county attorneys “are not supervised, nor do they report to, the attorney general.” (Wooten, her Democratic challenger, told Bolts she disagrees with Mitchell, and approves of Hobbs’ order.)

If a county attorney challenged or ignored Hobbs’ order, it would trigger a legal showdown—and the state supreme court may be the final arbiter, again. Aadika Singh, a senior attorney at the Public Rights Project, a national organization that was involved in the recent case against Arizona’s abortion ban, told Bolts this uncertainty will deter abortion care providers.

“The promises from the governor and her executive order, the attorney general’s statements, don’t help that doctor feel confident that she won’t be prosecuted by some rogue local prosecutor,” Singh said. 

Such a case could emerge from Yavapai County, home to Prescott and Sedona. Republican County Attorney Daniel McGrane jumped into the recent litigation to ask the state supreme court to revive the 1864 ban and has signaled his interest in prosecuting people for abortion.

When Bolts contacted the Yavapai county attorney’s office with questions about their policies, an employee told Bolts to contact the Alliance Defending Freedom, a religious organization opposed to abortion that represented the office in court during the litigation over the 1864 ban. When Bolts clarified that it had questions about what McGrane would do in light of the court’s decision, and not just about the litigation, his executive assistant replied in an email, “I understand your request, and I have been directed to refer all inquires [sic] to the ADF.” 

The Alliance Defending Freedom did not answer Bolts’ question on how they were advising the Yavapai county attorney’s office, though they did share a generic statement celebrating the court’s ruling.

Asked about the Yavapai office deferring to the Alliance Defending Freedom, Singh told Bolts, “I think it’s very troubling when governments delegate their positions, their jobs, to ideological antichoice groups.” 

Singh’s organization is now fighting to get Arizona courts to delay the implementation of the 1864 ban; the attorney general said last week that the law would not be in effect until June 8 at the earliest. 

In the meantime, Democratic lawmakers made some progress toward repealing the ban altogether in the Senate last week despite Republicans’ narrow majority, but the odds of repeal are even lower in the House. Speaker Ben Toma, a Republican who controls what the chamber votes on and opposes repeal, said on the floor last week, “I would ask everyone in this chamber to respect the fact that some of us believe abortion is the murder of children.” 

Organizers are also championing a constitutional amendment that may end up on the ballot in November; in securing broader abortion rights in Arizona, the measure would overturn both the 1864 and 2022 bans.

“That is the most durable protection we can have here in our state,” said Chris Love, a spokesperson for Arizona for Abortion Access, the organization that’s pushing for an initiative to be voted on in November. The organization has already collected well above the required number of citizen signatures to qualify the measure, and they’re continuing to gather signatures to be safe. 

Obstacles remain, however. Proponents of the measure worry, for instance, that state courts may step in and strike down the initiative even if it passes, as happened a few years back with a state ballot measure to raise taxes to boost education funding. 

The composition of the state supreme court is not set in stone, though. Two of the justices who ruled to uphold the abortion ban this month, Clint Bolick and Kathryn King, are up for retention elections this fall; these races will decide whether they still sit on the bench next year to hear any challenge to the constitutional amendment if it passes. 

A progressive organization on Monday launched a campaign to urge Arizonans to vote “no” on retaining Bolick and King, the Arizona Republic reported, saying it would raise money toward that goal.

Arizona voters have never ousted a supreme court justice before, and several progressive Arizonans told Bolts last week that they were still unsure of how much attention these races would get. Ortiz, the Democratic lawmaker from Maricopa County, says these judicial races could double as a referendum on abortion rights. “If voters take that power to reject these judges, they’re going to send a really strong message,” Ortiz said. “I do think that it would be a worthwhile effort.” 

If the November measure protecting the right to abortion fails or is struck down, or if a court overturns Hobbs’ order preventing prosecutions, the state’s 15 county attorneys would inherit the authority to go after abortion providers within their jurisdiction. Twelve of the 15 current officeholders joined the letter opposing the governor’s executive order last year, though many have also dodged questions about whether they’d enforce the 1864 ban since the supreme court revived it. 

And while all county offices will be on the ballot this year, in most places, voters will have little choice on offer: Just four counties besides Maricopa even drew multiple candidates for prosecutor—Coconino (Flagstaff), Pima (Tucson), Pinal, and Yavapai counties, all of which will be resolved in the August primaries. 

In Coconino and Pima counties, all four candidates are Democrats—deputy prosecutor Ammon Barker and public defender Gary Pearlmutter in Coconino, incumbent Laura Conover and former deputy prosecutor Mike Jette in Pima—and all four told Bolts they would not prosecute abortion cases against either patients or doctors.

“The threat of prosecution will have a chilling effect on the medical administration of this state unless prosecutors in this state can give women and their medical providers clear assurance that this law will not affect them,” said Barker. Pearlmutter added that he also wants to shield “organizations who perform or assist a woman in receiving an abortion,” as well as “a family member or friend who assists a woman in transporting or obtaining an abortion.”

It’s the mirror image in the other two contested races, Pinal and Yavapai counties. Those only drew GOP candidates. 

Pinal County Attorney Kent Volkmer and his primary challenger Brad Miller did not respond to Bolts’ questions. Volkmer’s office also dodged questions by the Arizona Republic. Miller is a staunch conservative who describes himself as pro-life on his website.

David Stringer, a Republican running in Yavapai County against McGrane, said he was “disappointed” in the court’s decision to uphold the 1864 abortion ban, sharply breaking from McGrane, who championed the ruling. Stringer, a former state lawmaker who resigned in 2019 over scrutiny into racist remarks, told Bolts that people should have access to an abortion “in the very early stage of pregnancy.” But he did not rule out prosecutions for abortion. “I would want to see how my colleagues in other county’s handle this very sensitive issue,” he said via email. 

Stringer suggested that it may breach a prosecutor’s duty to refuse to enforce a law that’s in the books, telling Bolts, “A County Attorney is sworn to uphold the law—even laws they may not like.”

Ortiz, the Democratic lawmaker, insists that it does fall within county attorneys’ purview to refuse to prosecute abortion. She points out adultery is a crime under Arizona law and yet prosecutors aren’t going around hounding cheating spouses with criminal charges. 

“Prosecutors have the full discretion to determine which cases they’re going to file charges on and which cases are going to be dismissed, and they make those decisions every single day,” Ortiz said. “It is fully within their authority to say, ‘I am not going to prosecute cases that involve abortion under this unjust law.’”

Still, abortion rights advocates also warn that this emerging patchwork of policies—with some counties open to prosecuting abortion while others are not—is insufficient to protect abortion access even in places with favorable prosecutors. What happens in one county is bound to bleed into the rest of the state, they say, which is why their priorities are amending the constitution and defending Hobbs’ statewide prohibition on enforcement.

“If a few county attorneys decide to aggressively prosecute, it could result in doctors and other providers in other counties deciding not to provide abortion services, due to the lack of statewide consistency in how reproductive health services should be provided,” said Pearlmutter, the Coconino candidate, to explain why he supports the governor’s effort to block a “fractured approach” to enforcement.

In some states led by Republican executives, the drive for statewide consistency has gone the other way. GOP officials have cracked down on prosecutors who refuse to enforce abortion bans, exposing them to heavy retaliation. In 2022, Florida Governor Ron DeSantis went so far as to remove Tampa’s elected prosecutor from his job, ostensibly over such a pledge. 

Some prosecutors working under a broader ethos of criminal justice reform have also announced they won’t file criminal charges against a larger array of behaviors than just abortion—an approach known as declination. They have said these offenses are a matter for public health professionals, rather than for courts. For instance Julie Gunnigle, Democrats’ unsuccessful nominee in Maricopa County in 2020 and 2022, had pledged to not prosecute low-level drug possession and sex work.

Maricopa Democrats’ candidate this year, Wooten, did not name any type of charge besides abortion that she would decline to prosecute during an interview with Bolts, though she said she wanted to increase alternatives to incarceration for people with addiction or mental health issues in order to “address the underlying issue, as opposed to just throwing everybody in prison.” 

But Wooten drew a line in the sand against enforcing a law that is about “taking constitutional rights away from women.” She invoked Rosa Parks and the civil rights movement’s legacy of civil disobedience.

“Sometimes you may have to bend the rules in order to make a greater good for America,” she said.

The post Arizona Will Elect County Prosecutors in Shadow of Abortion Ban appeared first on Bolts.

After the Supreme Court removed federal protections for abortion in its Dobbs decision last June, the state’s attorney general immediately petitioned a federal judge to enforce a 2019 law that banned abortion after six weeks. It included an exception for when the mother’s life is at stake but not for instances of rape or incest. The six-week ban remained in effect for nearly three months, until a lawsuit brought by abortion providers led to an indefinite stay of the law. During that 82-day window, the costs associated with abortion care skyrocketed, and people were forced to cross state lines to seek the procedure—including, notoriously, a ten-year-old whose heartbreaking story became embroiled in a national controversy. 

The Abortion Fund of Ohio jumped into action, helping hundreds of Ohioans seek care elsewhere, in states where they could access abortion. The fund helped reroute them “out of state to be able to get the care that they were entitled to,” recalls Maggie Scotece, a doula and attorney who is currently serving as the organization’s interim executive director. (The organization is part of the coalition supporting Issue 1.)

But the organization, which helps people fund and access abortions, also received confused calls from, or on behalf of, people who could not travel: minors in group homes or juvenile justice centers, and people on probation and parole. 

Hundreds of thousands of Ohioans have their freedom of movement greatly restricted because they’re under some form of state supervision, and the stakes of Issue 1 may be highest for them. 

 According to data collected by the Prison Policy Initiative, Ohio ranks fourth nationally in the share of its population under any form of carceral control (this includes prisons, jails, probation, and parole), behind Idaho, Arkansas, and Georgia—“and that’s largely due to the massive number of people who are on probation,” said Wanda Bertram, a communications strategist at PPI.

A 2023 PPI report found that, at any time, some 191,000 state residents are on probation, which is an alternative to incarceration that comes with heavy restrictions and surveillance, while around 22,000 more are on parole, a form of post-release supervision that in Ohio is baked into prison sentences. “Probation is handed out like candy here in Hamilton County,” said Sean Vicente, a Hamilton County (Cincinnati) public defender. 

Abortion is currently legal up to 21 weeks and 6 days in Ohio because of the legal dispute over the 2019 law. Meanwhile the campaign to pass Issue 1 and permanently codify abortion rights has raised millions of dollars and gained traction; recent polls have found that between 52 percent and 58 percent of prospective voters supported the measure. 

But Issue 1 has also garnered many opponents, especially among the state’s Republican leadership. If it fails, Scotece predicted that the state supreme court, which has a GOP majority, will “almost certainly” reinstate the six-week ban. 

If that happens, people on probation or parole would face an impossible choice, Vicente said: “Do I travel out of state to take care of that health care issue and possibly get locked up? Or do I have an unplanned pregnancy? Do I have an ectopic pregnancy? Do I have a child via rape?” 

“It’s going to put poor people in a really tough spot where they have to truly decide between health care and liberty,” he told Bolts. 

Parole and probation are often conceived of as alternatives to incarceration that can keep more people in their communities. But both systems are so full of delays, requirements, and catch-22s that Vicente says he and his fellow public defenders often fear they are “setting up our clients to fail.” 

“The restrictions that are placed on people—and the ban on traveling out of state, which is common, is one of these—are often so onerous that people say that they would just rather be in prison,” Bertram said. 

At any given time, 39 percent of the people in Ohio’s jails are being detained because they violated the terms of their probation or parole, according to the PPI report. That’s double the national average of 20 percent. 

“I can understand it being that high, because anything can get you [violated],” said Malika Kidd, who helps women navigate reentry as the Program Director for the Lutheran Metropolitan Ministry in Akron and Cleveland. “You can be around another person that was in prison and you can get violated, just in the same area with them. Somebody in your family can have a gun with them and you’re around it, you could be violated. If you get a traffic ticket and don’t let them know, you can be violated.”

Though women are generally proportionally underrepresented within the criminal legal system, they are far more likely to be on probation than under other forms of correctional control, and both parole and probation compliance present special challenges for women. “Women are more likely to be the primary caregivers of children—all of the requirements that supervision imposes that get in the way of childcare are going to fall harder on women,” Bertram said. “That takes a huge amount of time out of your day.” There are fewer reentry programs serving women, who are more likely to be homeless upon their release—another factor that would make it difficult to comply with the often onerous requirements that accompany supervision. “It’s a combination of a lot of stuff that can overwhelm anybody,” said Kidd. 

Kidd is, in many ways, the face of women’s reentry in Ohio, but her experience with parole there illustrates how arbitrary and burdensome the system can be—and how it restricts people’s freedom of movement. In 2001, after police found cocaine in her car on a trip from Chicago to Cleveland, she was sent to prison for drug trafficking. Her son was just three years old; by the time she got out, he was 17. 

As part of her mandatory minimum sentence, Kidd was given a 5-year “post-control release” term. From the beginning, she says, her parole officer seemed biased against her and determined to make her life harder. The woman upped her risk level, calling her a flight risk because she is originally from Illinois, and forced her to wear an ankle bracelet, which tracked her movements and prohibited her from leaving Ohio. Some people on probation cannot even leave their county of residence without permission. 

Moreover, Kidd says her parole officer exacerbated the already toilsome process with delays in processing her requests for permission to travel outside the state. Ironically, some of Kidd’s requests were in order to speak at conferences about the myriad barriers associated with reentry. Her work was understanding about her spending hours at the parole office waiting for approval, she said, but “I’m sure there were plenty of other employers that weren’t as flexible as mine,” which could leave people to choose between potentially losing their job—a violation of parole conditions in itself—or giving up on the travel request. 

If abortion were once again banned in Ohio, people on parole or probation might be forced to choose between lying to the officer or judge assigned to their case about their reasons for travel, going out of state without permission, or being honest. The former two options both carry the risk of violating your supervision terms and being reincarcerated. 

Vicente said he couldn’t fathom any judges signing off on a travel request that involved going out of state to do something that would violate the law if done within state borders. 

He said, “You’re petitioning the court to say, ‘Hey, I know this is against the law here in Ohio, but I need my client to travel up to Michigan to get the care she needs. Judge, are you willing to allow her to travel out of state to break the law that’s currently in effect in Ohio?’ That I doubt any judges would sign off on.” 

“I think there’s gonna be a lot of frenzied and panicked calls, and it’s gonna put us in a tight spot as well,” Vicente added, wondering how his fellow public defenders would begin to advise their clients under such circumstances. 

An unexpected and unwanted pregnancy—and the stress, exhaustion, physical and hormonal changes, and increased number of health check-ups that tend to follow in its wake—could also make it harder to comply with the terms of supervision. “The medical needs are going to take priority over visiting the probation officer, which puts you in further jeopardy,” Vicente said. More people being forced to carry to term a pregnancy that they don’t want and can’t handle could ultimately contribute to the already high percentage of Ohioans jailed for violating the terms of their supervision.

With polling showing public support for abortion and other reproductive health rights, Ohio Governor Mike DeWine recently proposed to soften Ohio’s six-week ban if it were to come back into effect and to allow some exceptions, for example in the case of rape. But other Republican lawmakers have already resisted such changes. 

Republicans also tried to change the rules of the initiative process in Ohio to undermine this abortion rights measure, which was petitioned onto the ballot by organizers who collected hundreds of thousands of signatures. GOP lawmakers called a special election in August asking voters to raise the threshold to pass a constitutional amendment from a simple majority to 60 percent. That proposal failed by a wide margin in August.

The GOP’s proposal to change the rules in August was also called Issue 1, which has led to concerns of voter confusion as abortion rights proponents who fought the summer’s Issue 1 are now campaigning for people to approve the new Issue 1. 

If Issue 1 fails, it would add to the existing barriers that preventOhioans from accessing reproductive care. 

Even though abortion is currently legal up to nearly 22 weeks on paper, access is extremely limited in practice, Scotece of the Abortion Fund of Ohio said. While Ohio had more than 40 clinics in the ‘90s, anti-abortion groups have been “incredibly successful” in seeking to close them down, she told Bolts. The state now has just nine clinics concentrated in Ohio’s big cities, only three of which perform abortions up until the legal limit. 

Meanwhile, Scotece stressed that Ohio is already one of the leading states for the criminalization of pregnancy, whether it be arrests and prosecutions for self-managed abortions or the use of narcotics while pregnant. A 2021 study done by researchers at the University of California San Francisco that surveyed people who searched for abortion care via Google showed that intensifying abortion restrictions in the U.S. have led to an increase in self-managed abortions, including by attempting to hurt oneself or ingest drugs and alcohol—which would likely further expose people to criminalization. 

“We already know that folks who are low income, folks that are already under state scrutiny, whether it’s for parole or the family policing system, are more likely to be criminalized for pregnancy and pregnancy outcomes regardless of whether or not that is related to abortion,” Scotece said. 

Codifying the right to abortion and other reproductive care, and creating legal protections for people and organizations that assist others in accessing abortions, won’t solve all of these problems, Scotece added. But it will create a new test that Ohio courts must use when considering the constitutionality of a law that restricts or criminalizes abortion in the state. 

Kidd is not actively campaigning for Issue 1, but told Bolts she supports it. “It’s a woman’s right and I think these good old boys should not decide what a woman should do with her body.”

Correction (Nov. 1): An earlier version of this article misstated a quote from the Abortion Fund of Ohio, and inaccurately stated the number of Ohioans who sought out-of-state care when the six-week ban was enacted.

The post If Abortion Measure Fails, Ohioans on Parole And Probation Could Face Graver Restrictions appeared first on Bolts.

Ohio Republicans passed a measure in May that creates an Aug. 8 election to end Ohioans’ right to directly amend their state constitution with a simple majority vote.

Voters will decide on that day whether to adopt a proposal that would increase the threshold to change Ohio’s constitution from 50 to 60 percent, and that would make it harder for residents to get constitutional amendments on the ballot in the first place. If it passes, the measure would dramatically curtail a tool of direct democracy that has existed in the state for more than a century.

“It’s an attempt to fool voters into giving away their power,” said Mia Lewis of Common Cause Ohio, a pro-democracy group that opposes the amendment.

Ohio Republicans’ latest effort follows a recent pattern. In numerous states where they have near-total dominance and the only option to challenge them is through statewide referendums or constitutional amendments, Republicans have moved to attack direct democracy itself.

Arkansas Republicans recently passed a law that makes it harder to qualify ballot measures for a popular vote, as did Utah in 2021. Arizona Republicans attempted to do the same last fall, to mixed results. Republican legislators in Florida, Idaho, Missouri, North Dakota and Oklahoma have made similar attempts this year, to varying degrees of success. In the maneuver most reminiscent of Ohio’s, South Dakota Republicans rushed through a summer referendum last year in an attempt to make it harder for a Medicaid expansion plan to pass later that year. Voters rejected their last-minute gambit, then passed Medicaid expansion over their objections last fall.

Now, Republicans are trying the same playbook in Ohio.

The precipitating reason for this amendment is a push to enshrine abortion as a constitutional right. After the U.S. Supreme Court’s 2022 decision that ended the federally-guaranteed right to an abortion, Ohio Republicans passed legislation to ban most abortion in the state, though that law is currently pending legal review. Abortion rights groups responded with a campaign to amend the constitution, attempting to follow in the footsteps of similar initiatives that passed in California, Michigan, and Vermont last fall, and in March they got the greenlight to start collecting signatures for a November referendum.

Anti-abortion groups lobbied GOP lawmakers to support a constitutional amendment to make it harder for any future amendments to pass, and rush to get it in place before voters can weigh in on abortion.

“Their true motivation, aside from their insatiable desire for power, is to stop women from having the reproductive freedom that we so deserve,” Representative Jessica Miranda, Ohio House Democrats’ Minority Whip, told Bolts.

Republicans sought to paint this proposed amendment as a necessary adjustment to protect Ohioans against deep-pocketed out-of-state special interests rather than one focused on blocking abortion rights.

“By voting yes on August 8, Ohioans will be protecting our constitution from special interests for generations to come, while still preserving the people’s important role in governing our state,” Ohio GOP Chairman Alex Triantafilou said in a recent statement. 

“We believe the Ohio constitution is a foundational document and shouldn’t be home to every whimsical issue that comes down the road,” said Rob Nichols, a spokesperson for Republican Secretary of State Frank LaRose. 

But Republicans have occasionally admitted what this push is really about.

“There is a reason that every far left group in Ohio is fighting so hard to preserve their ability to do an end run around us,” state Representative Brian Stewart, the Republican who spearheaded the effort to create the referendum, wrote his GOP colleagues in a December letter obtained by the Cleveland Plain Dealer. “After decades of work to make Ohio a pro-life state, the Left intends to write abortion on demand into Ohio’s Constitution. If they succeed, all the work accomplished by multiple Republican majorities will be undone, and we will return to 19,000+ babies being aborted each year.”

In holding this vote, Ohio Republicans are doing an about-face from a position they held just a few months ago. In December, the GOP-controlled legislature passed a law to eliminate August elections because of the difficulty and additional expense for holding them, as well as the historically low voter turnout during a time of year when many people are on vacation.

LaRose said at the time that August elections “aren’t good for the taxpayer, elections officials, voters or the civic health of our state,” and lamented their historically low turnout. 

But after the GOP failed to move the proposal through the legislature in time to put it on the ballot for the spring primary, LaRose and other Republicans changed their tune.

His spokesperson punted when asked why his boss had reversed his position.

“The general assembly has the authority to establish the time, place and manner for an election. It’s their call, and they chose to do an August election,” Nichols told Bolts. “It’s not our call.”

He also shrugged off concerns from local election workers about the cost and effort of an August election, saying he had faith that local officials were up to the task.

“They’re professionals, they’ve been through this before,” he said. “There have been August elections routinely in the past, and they’ve handled themselves flawlessly.”

The amendment’s opponents have filed a lawsuit in an attempt to block the vote from happening at all, arguing it violates this recently passed law banning most August elections.

In a separate lawsuit, they are seeking a court order to alter the Republican-drafted language for the amendment, which their lawyers described in a court brief as a “misleading, prejudicial ballot title and inaccurate.”

Surveys suggest Republicans are out of step with the voters in the GOP-leaning state—both on abortion and on their wish to curtail direct democracy.

An October poll by Baldwin Wallace University found that 59 percent of Ohioans supported a constitutional amendment to make abortion access a fundamental right—enough support to pass with a simple majority, but just shy of a 60-percent threshold—with just 27 percent opposing it. 

But it doesn’t seem like the GOP’s attempted end-around is any more popular with voters than their attempts to curtail abortion access.

An early May poll conducted by the group leading the efforts against the amendment to change constitutional referendums found that Ohio voters would oppose the measure by a margin of 52 to 21 percent. Strategists in both parties say that other private polling indicates the measure is currently opposed by majorities of Ohioans.

“The overwhelming response to this from people has been outrage,” Democratic Ohio state House Minority Leader Allison Russo told Bolts. “They see this as a power grab from a gerrymandered, unaccountable legislature that wants to take away power from people and put it more firmly into politicians’ hands.” 

The proposed amendment has drawn a broad swath of opposition. Traditional Democratic allies like Planned Parenthood, the Sierra Club, the AFL-CIO and numerous left-leaning labor groups have been joined by the Fraternal Order of Police and the Libertarian Party. The bipartisan Ohio Association of Elections Officials came out in official opposition to it because of the added work and unnecessary cost to taxpayers, which is expected to run as high as $20 million.

The referendum has also drawn opposition from two former GOP state attorneys general, as well as all four of Ohio’s living former governors—including Republicans John Kasich and Bob Taft.

Even some Republicans don’t seem that keen on the August vote. The bill only passed the Ohio legislature after months of foot-dragging from reluctant GOP leaders and heavy pressure from anti-abortion rights groups, in spite of a GOP supermajority in both chambers. Republican Governor Mike DeWine only came out in support after it had already been passed by the legislature after months of debate. And the Ohio Business Roundtable, a conservative-leaning coalition of business groups that usually works closely with Republicans, has decided to stay on the sidelines.

But the new law’s sponsors and their allies in the religious right and business community are now rallying to the cause. 

The Ohio Republican Party recently launched an effort aimed at turning out GOP base voters, and a coalition of pro-GOP business organizations headed by the Ohio Chamber of Commerce recently launched an operation to provide air support. Those groups largely back the amendment because they want to make it easier to defeat a 2024 constitutional amendment to raise the state’s minimum wage.

Given the GOP’s insistence that this is about keeping outside special interests from changing the state constitution, it’s ironic that the biggest individual donor so far to back the amendment is an Illinois billionaire. Dick Uihlein, a GOP megadonor and shipping supplies magnate who has a particular fondness for election deniers and social conservative causes, is the biggest donor behind Save Our Constitution, a super PAC that spent more than $1 million on ads badgering reluctant Republican state lawmakers into passing legislation to create the August vote.

The proposal doesn’t just increase the threshold needed for voters to pass constitutional amendments—it also makes it much harder for groups to get amendments in front of the voters. Currently, organizations and movements need to secure signatures from five percent of registered voters in 44 of the state’s 88 counties to get a constitutional amendment on the ballot. The new rule, if approved, would force groups to get enough signatures in every single county—and eliminate the 10-day cure period that currently exists for groups to fix any errors in signatures to qualify for the ballot.

If passed, the Aug. 8 measure would only apply to future constitutional amendments; it would not change the process that governs the initiatives that change regular statutes. Voters would still be able initiate laws or repeal ones passed by the legislature with a simple majority of the statewide vote. 

But state legislators can immediately re-pass the same or similar laws or repeal voter-backed legislation, giving them an effective veto over popular opinion.

The election is scheduled for the second Tuesday in August, where the proposed amendment will be the only question on the ballot. According to early reports, local election officials are scrambling to secure enough poll workers and polling locations in time. 

August elections are typically very low-turnout affairs, with between 5 and 10 percent of registered voters actually casting ballots. Both sides are gearing up to spend heavily on the race, and expect slightly higher turnout due to the gravity of the issue.

But the amendment’s opponents seem much more confident than its advocates.

“It’s gonna be a tough fight in August, and it’s really going to be about getting out the vote,” said Russo, the House minority leader. “But I feel confident that it will be defeated.” 

The post “An Attempt to Fool Voters”: Ohio GOP Sets Up Vote To Weaken Direct Democracy appeared first on Bolts.

A decade ago, when conservatives were attacking President Barack Obama’s Affordable Care Act as government encroachment in health care, they worked to amend state constitutions around the country to affirm a broad right for people to control their own medical decisions.

“Each competent adult shall have the right to make his or her own health care decisions,” reads section 38(a) of the Wyoming constitution’s Declaration of Rights, under the header “Right of healthcare access.” The provision was placed on Wyoming’s ballot by state lawmakers and approved by voters in 2012; voters saw ballot language that described the measure as preserving this right “from undue governmental infringement.”

Now these anti-ACA provisions—and their broad affirmations of a right to decide—have turned into an unlikely weapon in progressives’ fight against restrictions on abortion. 

Reproductive rights advocates in Wyoming have sued to strike down the state’s abortion ban, saying that this “right to make . . . health care decisions” protects abortion access. A lawsuit in Ohio has made the same case using a similar provision in Ohio’s constitution that was adopted by voters in 2011.

“If you have an amendment that says you have the freedom to choose your health care, then that’s going to apply to all health care: that’s the argument being made,” says David Cohen, a professor of law at Drexel University who studies constitutions and abortion. “It’s like, ‘you used broad words, and these broad words have certain meanings, and we’re just applying those meanings to this context.’”

In both Ohio and Wyoming, these claims have seen early success in courts. 

A trial court in Ohio issued a preliminary injunction against the state’s abortion restrictions in October. The judge found that the Health Care Freedom Amendment “bolsters the Ohio Constitution’s protection of liberty and personal autonomy and reinforces that these protections extend to Ohioans… the right to make decisions about their own bodies—including the fundamental right to make a decision as private and as central to a person’s bodily integrity as the decision to have an abortion.”

Freda Levenson, legal director of the ACLU of Ohio, which supports the lawsuit, says plainly, “The court was required to take this provision at its word: it preserves Ohioans’ freedom to choose their healthcare. And abortion is healthcare.”

In Wyoming, a trial court issued a preliminary injunction on a similar basis, concluding that it “could find that [section 38 of] the Wyoming Constitution affords all Wyoming citizens with a fundamental right to make their own health care decisions and that includes a Wyoming woman’s right to make her own decision regarding abortion.”

And provisions in several other state constitutions could be used for the same purpose.

Since the U.S. Supreme Court overturned Roe vs. Wade in June, legal organizations that are working to defend abortion rights have looked increasingly toward state courts and constitutions. This strategy’s most recent success came in January in South Carolina. Few states have constitutional language that explicitly protects abortion but many state courts have pointed to equal protection, due process, and privacy clauses to affirm a right to abortion under the state constitution, and strike down restrictions or bans on the procedure. 

Plaintiffs are now adding last decade’s anti-ACA provisions to their repertoire. In Wyoming, plaintiffs cited ten different provisions of their state constitution, including section 38 but also Wyoming-specific protections of equality and the state’s equal-protection and due-process analogs. Similarly, in arguing in court that their state’s constitution contains “broad protections for individual liberties,” Ohio plaintiffs cited its equal protection and due process analogs, as well as the health care-freedom provision created in 2012. 

“We see this as a very clear recognition by the voters of Ohio of the fundamental nature of the right to be free from government intrusion in private health care decisions,” Becca Kendis, one of the attorneys of record in the Ohio case and a Reproductive Rights Fellow at the Case Western Reserve School of Law, told Bolts about the state’s 2011 constitutional amendment. 

The ACA’s passage in 2010 was not smooth. Polling during the congressional deliberations over its provisions indicated that it was very unpopular at the time, and the immediate response by Republican attorneys general and legislatures was to undermine its provisions. Throughout the country, conservatives championed constitutional amendments that established individual rights to health care, which built on Republican messaging that the ACA deprived Americans of their ability to choose their own doctors and make medical decisions. Most of these amendments were written narrowly. They referred specifically to an individual “right” to not participate in a specific health care system and not purchase health care or insurance, or to a right of patients to directly pay for health care services and of doctors to accept direct payments.

But the amendments also included expansive language that hinted at something broader. They articulated some sort of right that went beyond not participating in regulated health care markets.

The Alabama, Arizona, Florida, and Oklahoma amendments referred—in materially identical terms—to the “freedom” of their state residents “to provide for their [own] health care,” language that echoes Wyoming’s “right” to “make health care decisions.” 

A measure in Colorado, which failed in 2010, even referred to a “right of health care choice.” 

Reproductive rights proponents today are pointing to the breadth of that language to build their case that these clauses ought to apply to the right to choose an abortion.

For Kendis, the Ohio amendment’s drafters made a political choice to phrase their measure in vague and broad terms in order to maximize support for it.

“You can’t write it to get broad support and claim afterwards that it has this narrow application,” Kendis told Bolts. “If you’re writing something broadly because you’re trying to appeal to the broader public, what you write is what you get.” She added, “There’s a lot of thought process that goes into this to determine how to gain a majority of the vote.”

In both Ohio and Wyoming, appellate courts have declined to step in to block the trial courts’ injunctions, preventing the laws from coming into effect and allowing the lawsuits to continue in the trial courts. 

Whether the Ohio and Wyoming supreme courts end up agreeing remains to be seen, though the new conservative majority in Ohio is likely uninterested in recognizing abortion rights. Still, these arguments have been cleverly framed to appeal to conservative jurists in both states. 

A mainstay of the contemporary conservative legal movement is textualism, or the idea that a text should be interpreted based on its words’ meaning at the time of its adoption, judged by what a so-called ordinary speaker of the language would understand. 

Kendis is framing her case as an easy one for such textualists. In 2011, she says, abortion was a “widely available, legal form of ‘health care’ by any plain meaning or definition of that word for four decades.”

The subjective intent of the amendment’s drafters may have been to push back against the ACA but “they could have very clearly worded this in a way that was targeting the ACA, the individual mandate,” she added. “They could’ve even defined ‘health care,’ so we really have to consider the plain meaning of the word in the text.” But that’s not what voters saw. 

“At the end of the day, when the voters are going to read their ballots and they’re reading the language, they’re deciding whether they agree with the language,” she said. “I don’t see how anyone could argue that the voters, who approved this amendment, . . . were specifically excluding the right to abortion from the type of health care that they approved protection for.” 

In two other states that adopted similar constitutional amendments last decade—Arizona and Oklahoma—abortion-rights activists are challenging the constitutionality of their state’s abortion restrictions. Litigants in neither case have cited their state constitutions’ similar health care freedom amendments—even though both are textually similar to Ohio’s. Alabama has a similar constitutional protection but voters ratified a constitutional amendment in 2018 establishing that “nothing in this constitution secures or protects a right to abortion.”

Whether litigants in Arizona or Oklahoma pursue similar arguments may depend on how the lawsuits play out in Ohio and Wyoming, though each state court system will be shaped by its own politics and members.

Still, the turnaround in these amendments’ use is a reminder of a history of unintended consequences for constitutional provisions that the right has used as well, for instance with the federal equal protections clause and affirmative action cases.

“It opens up a lot of possibilities once you look into what our constitution says, which we had not needed to rely on before Dobbs,” Kendis said.

The post How Attacks Against Obamacare Turned Into Tools to Protect Abortion Access  appeared first on Bolts.

“We hold that the decision to terminate a pregnancy rests upon the utmost personal and private considerations imaginable, and implicates a woman’s right to privacy,” Justice Kaye Hearn wrote in the lead opinion, pointing to language embedded in the South Carolina Constitution.

The six-week ban was passed in 2021 by the Republican legislature, which saw it as an invitation for the U.S. Supreme Court to overturn Roe v. Wade. After the court’s Dobbs ruling in June, the ban briefly came into effect until the state supreme court blocked it in August. At the time, the justices left unresolved whether they thought that the law violated the state constitution’s privacy-rights protection—but they settled that question with their ruling this week.

The ruling is fragile since one of three justices in the majority is leaving the court next month, and another must retire by 2024. But advocates for abortion rights were quick to cheer the ruling, the latest showcase of the extraordinarily heightened stakes of state courts since last summer.

“The court’s decision means that our patients can continue to come to us, their trusted health care providers, to access abortion and other essential health services in South Carolina,” Jenny Black, the president of Planned Parenthood South Atlantic, one of the plaintiffs in the case, said in a statement on Thursday.

After the Dobbs decision overturned federal protections for abortion and triggered bans around the country, abortion rights advocates turned to state courts, asking them to shield abortion access by affirming it as a right under their state constitutions. States are required to abide by the minimum protections recognized by the U.S. Constitution, but their courts are free to recognize a greater level of protection—and more rights—based on state constitutional provisions. 

The ruling from the South Carolina supreme court marks the first time since Dobbs that a state supreme court has rewarded that strategy and struck down an abortion restriction on state constitutional grounds.  

A dozen supreme courts had already affirmed by 2022 that their state constitutions recognize abortion rights, a state-by-state analysis by Bolts found in July. These rulings, like South Carolina’s, relied on interpreting language like an equal protection clause and privacy protections. In August, Kansans voted down a measure that would have overturned such a ruling; in November, voters in California, Michigan, and Vermont approved referendums that added explicit protections for abortion rights into their constitutions, becoming the first states to do so. 

The South Carolina Supreme Court flirted with that step on Thursday, though whether it actually affirmed a constitutional right to abortion is a matter of some confusion—even to its own members. Two of the justices in the majority wrote that the state constitution contains the right to an abortion. But the third, Justice John Few, took pains to distance himself from that conclusion, even while writing that abortion access falls under the constitution’s right to privacy. Justice John Kittredge, in his dissent, notes that Few’s opinion is “less clear, at least to me.”

Those nuances do not change the immediate fate of the 2021 law, said Jace Woodrum, executive director of the ACLU of South Carolina. 

“Although it is rare for… all the justices to write separately, the result is the same: the Legislature’s six-week ban is struck down as unconstitutional, and abortion in South Carolina remains legal up to 20 weeks,” he told Bolts.

In other states, lawsuits appealing to the state constitutions have seen some initial success but few courts have reached final decisions. On Thursday, though, the Idaho Supreme Court held that its state constitution does not protect abortion. The conservative court handed down an opinion steeped in originalist philosophy that concluded “the relevant history and traditions of Idaho show abortion was viewed as an immoral act and treated as a crime.”

The South Carolina court’s ruling hinged on interpreting the state constitution’s clause against “unreasonable invasions of privacy.” That provision, embedded in its Declaration of Rights, generally relates to “searches and seizures,” and so opponents of abortion in South Carolina argued that the protection is limited to the context of criminal procedure. But the state supreme court on Thursday rejected this argument, holding that this right to privacy applies to abortion even if “the words used do not specifically mention medical care or bodily autonomy.” 

Because the six-week ban “leav[es] no room for many women” to exercise their choice to continue a pregnancy, Hearn wrote, it “prohibits certain South Carolinians from making their own medical decisions.” This “cannot be deemed a reasonable restriction on privacy.” 

Hearn also drew on a broad history of privacy-rights protection in the United States to make that case, including the decisions of other state supreme courts, including Alaska, Florida, Minnesota, Montana, and Tennessee, that also applied the right to privacy to abortion rights. 

The majority’s decision came with limits, though. Hearn’s lead opinion states that the abortion right protected by the state constitution “is not absolute.” It emphasizes that a six-week ban limits abortion access “before many women . . . even know they are pregnant” and “severely limits” or “completely forecloses” its availability. And Few’s concurrence outlines seemingly weaker standards of scrutiny and pushes against the notion that the right to seek an abortion is “fundamental” in the state constitution. These leave open the possibility that the same justices would uphold other types of abortion restrictions in the future.

Still, Woodrum, of the ACLU, said the differing opinions that make up the majority are a sign of strength for the position that abortion bans are unconstitutional. “There are many different paths to take that arrive at the same conclusion.”

“There is no doubt in my mind that some of our legislators will respond to this decision with more misguided attempts to ban abortion,” Woodrum said. “For months last fall, some legislators attempted to pass a complete ban on abortion, arguing that even the extreme six-week ban wasn’t enough. They weren’t successful, but we remain concerned that some of our elected officials will continue to ignore the Constitution and push to limit the reproductive rights of South Carolinians.”

Plus, the court’s composition will soon change, which could also change its approach to abortion rights. Hearn, who wrote Thursday’s lead opinion, is leaving the court in February because she has reached the mandatory retirement age of 72. Chief Justice Donald Beatty, who joined her in the majority, must also retire within the next two years. 

Members of South Carolina’s supreme court are elected by the legislature, which has a large Republican majority. But the legislature does not have absolute autonomy. The Judicial Merit Selection Commission considers prospective candidates and presents a slate of options to the legislature, which can elect one of the nominees or reject the entire slate and start the process over again.

Conservatives in red states have expressed frustration at such arrangements for preventing them from nominating politically reliable jurists on state courts. South Carolina’s process is built on informal but entrenched customs, which have historically included pledges of support for judicial candidates and vote-trading among legislators. The creation of the merit-based selection process in 1996 eroded some of these practices, but informal jockeying still takes place. 

Still, for advocates in other states who are fighting similarly harsh abortion bans in the state courts, the outcome in South Carolina is encouraging and shows that even courts dominated by Republican appointees may be unwilling to sanction near-total bans on abortion.

The post South Carolina Supreme Court Recognizes that Privacy Rights Protect Abortion Access appeared first on Bolts.

The result in Michigan will have the most immediate effects since, unlike California and Vermont, Michigan has a statutory ban on abortion on the books. Proposal 3, which affirms a “fundamental right to reproductive freedom,” passed on Tuesday, overturning the state’s abortion ban and protecting access going forward. ABC News called the race in favor of the measure which, as of publication, led 53 percent to 47 percent.

Meanwhile,  California voters overwhelmingly to  add a “fundamental right to choose to have an abortion” and a “fundamental right to choose or refuse contraceptives” to the state’s constitution. Vermont voters also approved language adding a  “right to personal reproductive autonomy” to that state’s constitution by a wide margin on Tuesday.  

Whether state constitutions protect abortion rights—and how state courts interpret those protections—has been a critical question in the aftermath of the U.S. Supreme Court’s decision to overrule Roe v. Wade. The conservative court’s ruling only concerned whether abortion rights were protected under the federal constitution, but each state’s constitution can set higher standards for the protection of individual rights and liberties. Additionally, though individual rights to contraception are currently recognized by the Supreme Court’s decision in Griswold v. Connecticut, many observers have speculated that the Court may overrule that decision, too. Accordingly, it is significant that all three constitutional amendments that passed tonight also recognize—explicitly or implicitly—individual rights to contraception.

An analysis published by Bolts in July found that a dozen state supreme courts have ruled that their states’ constitution recognizes abortion rights. But until Tuesday, no state constitution explicitly declared such a right; judges in those states relied on provisions that talked about a right to privacy or about due process. California, Michigan, and Vermont are the first three states to add provisions into their constitution that explicitly codify the right to an abortion. 

They likely will not be the last, with Democratic governors around the country calling for similar amendments and with abortion-rights advocates motivated by tonight’s results.

In states with abortion bans, advocates have also turned to courts to challenge their legality under state constitutions, hoping that more judges might recognize abortion protections.

Tuesday’s elections decided the courts’ balance of power in populous states that may face showdowns over abortion rights. The GOP gained a new majority on the state supreme court in North Carolina, and narrowly retained its majority in Ohio; Democrats are favored to retain their majority on the Michigan supreme court. In another major race where abortion was on the line, Republicans also failed to take full control of the state government in Pennsylvania, another battleground on the issue; Governor-elect Josh Shapiro, a Democrat, favors abortion rights and would be poised to veto bills that carry restrictions.

Tuesday’s results build on the landslide in favor of abortion rights in a referendum in Kansas in August. Earlier this year, Republican lawmakers in Kansas proposed a constitutional amendment that would have effectively overruled a landmark decision by the Kansas supreme court in 2019 protecting abortion rights, but Kansas voters rejected that amendment.

Kentuckyians were similarly voting on Tuesday on a constitutional amendment that would have declared that their state constitution does not protect abortion rights, and just like Kansas they rejected the measure. The result is welcome news to abortion-rights advocates and opponents of the proposed amendment, which significantly outraised and outspent supporters. However, the failure of the amendment itself will not legalize abortion in Kentucky. Ongoing litigation at the Kentucky Supreme Court, which concerns whether the state constitution implicitly includes abortion rights, will ultimately determine the legality of abortion in the commonwealth. 

Also in Kentucky, a conservative lawmaker who championed abortion restrictions in the legislature lost an election to join the state supreme court.  

Montana decided yet another measure pertaining to abortion on Tuesday. Unlike the other referendums, this concerned a state statute that required medical care be given to any infant “born alive” after induced labor, cesarean sections, or attempted abortions. The bill was drafted to mirror model legislation advanced by national anti-abortion groups, and was condemned by abortion-rights advocates and abortion providers as addressing a non-existent problem—especially given the rarity of late-term abortions generally. The measure appeared to be failing on Tuesday night, but regardless would likely have little impact on the legality and availability of abortion in Montana.

Of Tuesday’s referendums, Michigan’s Prop 3 drew the most attention heading into Tuesday. 

Passage of the measures in California and Vermont was never seriously in doubt given both states’ socially liberal bent. Both states enable abortion access, and the California Supreme Court has recognized an implicit state constitutional right to reproductive rights since the early 1980s. However, the addition of explicit constitutional protections further entrenches abortion rights in both states, and insulates them from the prospect of future supreme courts changing course.

Michigan, though, is more politically divided and Prop 3 faced a heavy opposition campaign. Attacks from opponents of the measure falsely argued that passage of the amendment would allow children to have access to “gender change therapy without parental consent,” a charge that appeared in television advertisements and was widely condemned as false.

The measure was also set to offset the status quo. The U.S. Supreme Court’s Dobbs decision “triggered” old statutes outlawing abortion in many states around the country. In some places, this meant returning to laws that were a century old—and in some cases, even older. Arizona returned to its 1864 ban, adopted when it was still a territory, and Wisconsin returned to its 1849 ban. In Michigan, the ruling threatened to reactivate the 1931 abortion ban, raising the prospect of widespread criminalization, even as some liberal prosecutors promised to resist it.

But the ban was blocked by state courts, with the state court of appeals halting the law’s enforcement and the state court of claims holding that it ran afoul of the state constitution. The issue was still pending before the state court of appeals, however, and the passage of Proposal 3 all but guarantees that the 1931 ban will be held unconstitutional.

With the amendment’s passage in hand, abortion will remain lawful in Michigan—and protected as a “fundamental right,” meaning that state courts will critically evaluate infringements on the right.

The post Measures to Protect Abortion Rights Triumph on Tuesday appeared first on Bolts.

The victory for abortion rights advocates was decisive, with 61 percent voting to reject the amendment as of publication. It is the first major win for abortion rights advocates following the Supreme Court’s Dobbs ruling on June 24 overturning Roe v. Wade. The vote also keeps in place a Kansas Supreme Court ruling three years ago that held abortion rights were protected under the state’s constitution.

“I think this was a passionate issue for folks, it goes beyond party lines, it’s about health care,” said Christina Haswood, a Democratic member of the Kansas House of Representatives from a district around Lawrence. Haswood, who is Navajo and the youngest member of the legislature, pointed to high mortality rates for Native people who are pregnant. “As a young Indigenous woman, at the end of the day this boiled down to life or death.”  

The state’s urban and suburban areas rejected the measure by huge margins, up to 85 percent to 15 percent in Douglas County, which contains Lawrence. And while the amendment largely carried the state’s rural counties that vote massively Republican, the margins were considerably tighter than these areas’ usual red hue.

Tuesday’s vote highlights the critical role that state constitutions are playing in setting the landscape for abortion access and criminalization after Roe. The federal Constitution sets a floor for what’s considered a protected right, but states are free to set higher standards, and judges often interpret state constitutions and bills of rights more expansively. Two doctors sued to challenge Kansas’s 2015 law banning dilation and evacuation abortions (the most common procedure for second-trimester abortions), arguing that Section 1 of the Kansas Bill of Rights—which protects “life, liberty, and the pursuit of happiness,” language borrowed from the Declaration of Independence—sets such a higher standard for abortion rights. 

In 2019, most of the Kansas Supreme Court agreed. The court ruled 6–1 that the state constitution “acknowledges rights that are distinct from and broader than the United States Constitution,” including the right to “personal autonomy,” which the judges wrote “allows a woman to make her own decisions regarding her body, health, family formation, and family life—decisions that can include whether to continue a pregnancy.” 

The Kansas legislature responded by putting the question directly to voters, with a constitutional amendment to overturn the state supreme court’s ruling on the ballot. But rather than risk the issue being decided in the higher-turnout general election, lawmakers called a “special election” that coincided with the primaries, which historically see lower turnout from Democratic and moderate voters in the state. Election-denying conservatives around Wichita who supported the amendment also spread lies about voter fraud to try and pressure local officials to remove ballot drop boxes ahead of the election, according to The Wichita Eagle. 

But turnout was considerably higher than in past primary elections, suggesting that the debate on abortion had a mobilizing effect on the electorate. In Wyandotte County (Kansas City), the turnout rate on Tuesday was 35 percent, compared to 25 percent in the last midterm primaries.

The amendment’s defeat on Tuesday means that the Kansas Supreme Court’s ruling affirming the right to an abortion remains the law in the state. 

But uncertainties remain regarding the long-term viability of the current constitutional protections. Two new justices have been appointed to the court since its 2019 decision, and though they were both appointed by the Democratic governor, the state’s nonpartisan judicial nominating process means that the ideological leanings of appointees aren’t always clear. With a Democrat currently in the governor’s mansion, wielding veto power, the Kansas legislature has not had the opportunity to outlaw abortion in the aftermath of Roe v. Wade; such a ban could force the state supreme court to weigh in again on the issue in the coming years.

The upcoming November elections will further reshuffle the balance of power over the issue. The state has a fiercely competitive gubernatorial election between Democratic Governor Laura Kelly, who supports abortion rights and opposed the amendment, and Attorney General Derek Schmidt, who clinched the Republican nomination tonight; Schmitt opposes abortion and supported the amendment. 

The governor’s race is one of several in the country that will decide if conservatives are able to push through new restrictions next year “I just hope that I’m here to modify whatever comes forward” in the next legislative session, Kelly said before the election. Even if Kelly were to win re-election, conservatives hope to gain ground in the legislature to secure a veto-proof majority against abortion.

Additionally, six of the seven justices on the Kansas Supreme Court face retention elections this year, which means voters will choose “yes” or “no” on whether each justice should serve another six-year term; several were on the court in 2019 and ruled in favor of abortion protections. The seventh justice, Eric Rosen, hits the mandatory retirement age of 75 in 2028, meaning that the next governor will pick his replacement. Though no supreme court or appellate judge has ever lost a retention election in Kansas, there have been several close calls recently. And since abortion protections in the state rest on a decision by the court, anti-abortion advocates already have plans to unseat the more liberal justices on the court this year.

The saga in Kansas also underscores how state constitutions have become new battlegrounds for abortion rights. In states with “trigger” laws that automatically banned abortion following the U.S. Supreme Court’s reversal of Roe, litigation began almost immediately attempting to block the anti-abotion laws under state constitutions—despite early successes, it’s unclear how that strategy will play out in states with conservative judiciaries.

After the U.S. Supreme Court’s decision in Dobbs, Bolts published a nationwide survey of the status of abortion rights under state (and territorial) constitutions. With today’s results in Kansas, there remain eight states where a still-binding ruling by state courts unambiguously affirms a right to abortion, with some confusion over the situation in a half-a-dozen additional states.

The landscape is likely to continue changing.  Supreme court elections are on the ballot this year in many states, which could affect the status of abortion rights in a number of swing states such as Michigan and North Carolina in coming years.

And voters will pass judgment on similar amendments. Later this year, voters in Kentucky will approve or reject a nearly identical amendment, and voters in California and Vermont will vote on adding explicit protections for abortion rights in their state constitutions. Voters in Michigan may vote on a similar measure, as abortion rights advocates recently submitted more than 700,000 signatures for an initiated constitutional amendment that would protect abortion rights. With Democratic governors calling for constitutional amendments to safeguard abortion rights in their states, other amendments could be on the ballot this year—or in the coming years

“[T]he story is much bigger because it reveals that abortion rights are supported even in the reddest states and that Republican legislatures are legislating in a way that is out of step with their constituents,” said Greer Donley, an Associate Professor of Law at the University of Pittsburgh School of Law who has written extensively on abortion rights. 

“It also creates a playbook for restoring abortion rights on a state-by-state basis, even in red states,” she added. ““The important thing about these amendment votes is that they detach party identity from abortion politics and allow voters to vote on the issue without having to abandon their party. They could be the way forward.”

The post Kansas Voters Reject Constitutional Amendment to Erode Abortion Rights appeared first on Bolts.

Just days before the U.S. Supreme Court overturned Roe vs. Wade, another high court tossed aside a separate precedent that protected abortion rights. The new conservative majority on the Iowa Supreme Court ruled on June 17 that Iowa’s state constitution does not guarantee a right to access abortions, striking down a 2018 ruling that had held the opposite.

This week, though, a state judge in Florida temporarily blocked new abortion restrictions on the basis that they violate his state’s constitution. Lawsuits are now asking state judges in Idaho, Oklahoma, and Utah to affirm the presence of similar rights in their own constitutions.

As states rush to respond to the U.S. Supreme Court’s ruling, state constitutions—and the judges who have the power to interpret them—have emerged as critical battlegrounds. 

The rights and liberties protected by the federal Constitution only set a floor, not a ceiling, for the rights people enjoy at the state level. States cannot provide less protection than the federal constitution, but they can provide more. Every state constitution contains a bill of rights and other provisions that are semantically similar to the federal Constitution’s, and judges often interpret these state constitutional provisions more expansively. With federal lawsuits now effectively blocked on abortion, as on other issues, many of these state courts now offer a more promising playing field for progressive litigators.

In Kansas, for instance, abortion access is protected as of now by a 2019 ruling by the state supreme court that the state constitution provides a right to abortion. Many other state courts across the country have similarly established that their state constitutions recognize abortion rights. 

These rulings rely on varying provisions that are embedded in many state constitutions; most commonly, equal protection clauses, due process clauses, implied or explicit rights to privacy, and gender-equality provisions. (No state constitution has a provision that nominally enshrines a right to abortion, though there are active efforts to change that.) The presence of such clauses in a state constitution does not guarantee that courts apply it to abortion. Eleven states have clauses in their constitutions that mention privacy, for instance, but only some of their high courts have held that the provision protects abortion rights. Where they have, courts frequently rely on state-specific histories and the contexts of their adoption.

Even where courts have held that the state constitution protects abortion rights, there is not always robust access to abortion. In Kansas, the state supreme court’s 2019 holding coexists with very onerous restrictions. Mississippi’s court affirmed severe restrictions even while it affirmed a right to abortion in 1998, and its precedent has not been tested in decades, though state advocates hope it can now come into play. 

Still, as long as they’re standing, such interpretations are a shield against all-out bans. And they survive the U.S. Supreme Court’s Dobbs decision to overrule Roe. 

Whether they multiply or atrophy now depends on battles that will be distinct to each state.

To enable a more informed picture of how state constitutions impact abortion rights, Bolts is publishing a state-by-state analysis of how state courts have interpreted their constitutions. The analysis also covers U.S. territories and the District of Columbia.

Many courts’ balance of power is precarious, and changes in their composition can massively upheave how a court interprets these provisions. The rapid shift in the Iowa supreme court’s jurisprudence followed changes to the state’s judicial nominating process, which gave Republican Governor Kim Reynolds more power over nominees and brought more conservative justices into office. Florida may be undergoing a similar shift. Its supreme court has interpreted the state constitution’s explicit right to privacy as protecting abortion rights since the late 1980s, but Republican Governor Ron DeSantis has reshaped the court’s liberal majority into a conservative supermajority—with potentially dire consequences for abortion rights in the state.

Inversely, Democrats flipped the Michigan supreme court in the 2020 elections; this now looms large over the fate of abortion rights. The court is considering whether to strike down the state’s pre-Roe abortion bans, and that lawsuit would face tougher odds if Republican justices held a majority of the seats.

This landscape is now in flux. Many courts are facing rapid decisions they’ve avoided so far, and the midterm elections and other appointments in upcoming years may reshuffle who has authority over state constitutions.

Bolts’s guide to 2022 state supreme court elections, published in May, shows all supreme court seats that are up this year across the nation, and how they could affect their state’s politics. Michigan’s high court could flip back to the GOP, as might Illinois and North Carolina’s, with major efforts for abortion. Conservatives also hope to gain in Montana, where abortion rights hinge on the state supreme court. Democrats hope to flip Ohio’s.

Where they can, pro-choice advocates are pursuing other avenues that would not rely on the vagaries of state supreme courts. This includes pressuring legislatures to strengthen state laws to championing constitutional amendments that explicitly codify the right to an abortion so as to not rely on judges’ interpretations of language like equal protections or due process clauses.

California and Vermont may become the first states to amend their constitutions to explicitly codify abortion rights this year; both states are voting on constitutional amendments in November. There could be still other amendments ratified this year protecting abortion rights, though one major push to join this trend has fallen short so far in New York.

Meanwhile, conservatives have sought to nullify or forestall rulings protecting abortion rights by amending state constitutions. In Tennessee and West Virginia, Republicans responded to decades-old rulings that recognized abortion rights by proposing constitutional amendments overturning those rulings; voters narrowly approved those proposals in both states. Similar efforts have failed elsewhere, however. This year, voters will decide amendments that say that the state constitution does not protect abortion rights in Kansas in August and Kentucky in November; the Kansas measure, if approved, would overturn the state supreme court’s 2019 ruling.

In each state, the stakes are muddled by the complicated mass of precedents, provisions, and rulings that make up its legal status-quo and govern whether the state constitution currently protects access to abortion—and if not, whether it likely could. We hope that the analysis below brings additional clarity.

For additional reading, see these resources compiled by the Center for Reproductive Rights and the Guttmacher Institute, which will be invaluable to readers who want to learn more about these state court decisions.

Alabama

Does a still-binding ruling hold that the constitution contains a right to abortion? No

Context: Alabama courts long established that the state constitution does not guarantee a right to abortion. In 2018, voters reinforced this by adding Section 36.06 to Article I of the state constitution, which recognized the rights of an unborn fetus and explicitly established that the constitution does not guarantee a right to an abortion.

Alaska

Does a still-binding ruling hold that the constitution contains a right to abortion? Yes.

Context: Since the 1990s, Alaska courts have interpreted the state constitutional right to privacy in Article I, Section 22, to include abortion rights. This precedent was established in 1997 with Valley Hospital Association v. Mat-Su Coalition for Choice and reinforced in 2019 with  State v. Planned Parenthood of the Great Northwest. 

Alaskans will vote in November on whether to hold a constitutional convention, and abortion has become a clear dividing line because reversing the 1997 ruling with a constitutional amendment would require a constitutional convention.

American Samoa

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The High Court of American Samoa has not ruled on whether the territorial constitution recognizes a right to abortion.

Arizona

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Arizona Constitution does contain an explicit right to privacy in Article II, Section 8, but the Arizona Court of Appeals declined to rule on whether abortion rights are protected in the constitution in a 2011 case. 
However, the Arizona Supreme Court held in 2002 that the state was required to provide funding for abortion services for low-income residents in some circumstances.

Arkansas

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Arkansas Constitution was amended in 1986 to add Amendment Article 68, which prohibits the use of public funds for abortions and establishes a “public policy” against abortion. Public policies have generally been held by state supreme courts to not be binding, but here could result in a state court holding that there is no right to abortion in the state constitution.

Arkansas

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Arkansas Constitution was amended in 1986 to add Amendment Article 68, which prohibits the use of public funds for abortions and establishes a “public policy” against abortion. Public policies have generally been held by state supreme courts to not be binding, but here could result in a state court holding that there is no right to abortion in the state constitution.

California

Does a still-binding ruling hold that the constitution contains a right to abortion? Yes.

Context The California Supreme Court has consistently held since the early 1980s that the implied right to privacy in Article I, Section 1, of the constitution encompasses abortion rights. In November 2022, Californians will vote on a constitutional amendment establishing an explicit right to abortion.

Colorado

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Colorado Supreme Court has issued a set of rulings since 1990 that have expressed some friendliness toward abortion rights, but these ruling have not established them as state constitutional rights. 

Colorado voters have repeatedly rejected anti-abortion constitutional amendments, including so-called personhoodamendments, though they did amend the state constitution in 1984 to add Section 50 to Article V, which bans the public funding of abortions, and subsequently rejected several amendments to remove the prohibition.

Connecticut

Does a still-binding ruling hold that the constitution contains a right to abortion? No, but it’s complicated.

Context: In 1986, a superior court in Connecticut (the state’s equivalent of a trial court) recognized abortion rights under the state constitution on the basis of a right to privacy implied by Article I. But the Connecticut Supreme Court has declined to do so (most recently in 2010), and superior court rulings in Connecticut do not constitute binding precedent.

Delaware

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Delaware Supreme Court has not ruled on whether the state constitution contains any protections of abortion rights.

Florida

Does a still-binding ruling hold that the constitution contains a right to abortion? Yes.

Context: Since the late 1980s, the Florida Supreme Court has repeatedly interpreted the right to privacy that is contained in Article I, Section 23, of the constitution as including abortion rights. The court has routinely struck down state legislation that has infringed on the right. But with the new conservative majority on the Florida Supreme Court, these holdings are vulnerable. A trial court judge struck down the state’s new 15-week abortion ban this week in a case that is expected to work its way through the state system.

Georgia

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Georgia Constitution contains an implied right of privacy in Article I, Section 1, Paragraph 1, but the Georgia Supreme Court declined to say if abortion rights are protected under the state constitution in the 2017 case Lathrop v. Deal.

Guam

Guam does not have a constitution; it operates under the Organic Act of Guam, which can be modified by the U.S. Congress. Guam has no legal protections for an abortion.

Hawaii

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Hawai’i Constitution contains an explicit right to privacy in Article I, Section 6, but the Hawai’i Supreme Court has not interpreted that provision to include abortion rights. In a nonbinding opinion from 1994, the state Attorney General has suggested that the right to privacy does include abortion rights.

Idaho

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Idaho Constitution contains an implied right to privacy in Article I, Section 1, but the Idaho Supreme Court has not interpreted that provision to include abortion rights. Recently, however, a lawsuit was filed against Idaho’s “trigger law” that asks state courts to recognize such a right.

Illinois

Does a still-binding ruling hold that the constitution contains a right to abortion? Yes, but it’s complicated.

Context The Illinois Supreme Court interpreted the equal protection and due process clauses in the state constitution’s Article I, Section 2 (though not the explicit right to privacy in Article I, Section 6) as protecting abortion rights in its 2013 decision in Hope Clinic for Women v. Flores. However, its decision in Hope Clinic held that the state constitution contained the same level of protections as the federal constitution. Following the U.S. Supreme Court’s decision in Dobbs, the status of abortion protections under the Illinois Constitution is unclear.

Moreover, the court’s majority could flip to the GOP this fall, when the state holds two supreme court elections; “an Illinois Supreme Court dominated by Republicans could potentially have a vast impact on abortion laws in Illinois,” The Chicago Sun Times reports.

Indiana

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context The Indiana Supreme Court declined to rule on whether the state constitution contains any protection of abortion rights in a 2005 case. Ten years later, in a 2016 case, the Indiana Court of Appeals noted that this is an “unresolved issue.”

Iowa

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context The Iowa Supreme Court, in a 2018 ruling, held that the due process clause in Article I, Section 9, provided protections for abortions.  

In June 2022, however, the new conservative majority on the supreme court reversed that ruling, holding that abortion was not protected under the state constitution. The new case, Planned Parenthood of the Heartland v. Reynolds, was testing the constitutionality of a 24-hour waiting period for abortions.

Kansas

Does a still-binding ruling hold that the constitution contains a right to abortion? Yes.

Context In a 2019 case, the Kansas Supreme Court held that the equal protection clause in Section 1 of the state constitution’s Bill of Rights included abortion protections. 

A constitutional amendment that would overrule this decision and enable new restrictions is on the ballot in August 2022.

Kentucky

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context The Kentucky Supreme Court has interpreted the state constitution’s privacy rights broadly in the past, for instance striking down a statute against sodomy in the 1990s. But it has not interpreted that provision to include protections for abortion rights. In November 2022, voters will decide a proposed constitutional amendment that would establish that there is no right to an abortion in the state constitution.

Louisiana

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: In 2020, voters added Section 20.1 to Article I of the constitution. It provides that the state constitution does not protect abortion rights.

Maine

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Maine Constitution contains robust protections of rights to liberty and safety, equal protection, and due process, but the Maine Supreme Judicial Court has not interpreted those provisions to protect abortion.

Maryland

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Maryland Court of Appeals (equivalent to the state supreme court) has not interpreted the state constitution to include abortion rights, although a 1989 opinion from the state Attorney General suggests that Article 24 of the Declaration of Rights could include abortion protections.

Massachusetts

Does a still-binding ruling hold that the constitution contains a right to abortion? Yes.

Context: Since the early 1980s, the Massachusetts Supreme Judicial Court has interpreted the state constitution’s due process clause in Article 10 of the Declaration of Rights to protect abortion rights in several cases. 

Voters in 1986 rejected a constitutional amendment that would have granted the legislature the power to regulate or prohibit abortions.

Michigan

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Michigan Supreme Court has declined to rule on whether the state constitution protects abortion rights. 

In a 1992 case challenging abortion restrictions, it held that the state’s equal protection clause had identical protections as the U.S. Constitution’s equal protection clause, which suggested that there may be a parallel right to abortion under the state constitution, but the court added it was “unnecessary to decide” that question. Governor Gretchen Whitmer has challenged Michigan’s 1931 ban on abortions, asking the Michigan Supreme Court to recognize that the state constitution guarantees a right to abortion.

Moreover, abortion access advocates are currently collecting signatures to place constitutional amendment on the ballot in November that would enshrine abortion rights.

Minnesota

Does a still-binding ruling hold that the constitution contains a right to abortion? Yes.

Context: In its 1995 ruling in Women of the State v. Gomez, the Minnesota Supreme Court interpreted the state constitution’s implied right of privacy (in Article I, Sections 2, 7, and 10) to include a right to abortion.

Mississippi

Does a still-binding ruling hold that the constitution contains a right to abortion? Yes, but it’s complicated.

Context: The Mississippi Supreme Court held in 1998 that the state constitution’s explicit right to privacy in Article III, Section 32, included a right to abortion. (In the case, Pro-Choice Mississippi v. Fordice, the court otherwise affirmed new restrictions on accessing abortions.) Moreover, in 2011, voters rejected a constitutional amendment that would have defined life as beginning at conception. 

Mississippi politicians passed a “trigger” law in 2017 meant to ban abortions in the state if the federal Supreme Court overturned Roe, but reproductive rights advocates filed a lawsuit after the Dobbs opinion, pointing to the 1998 ruling. That precedent is now vulnerable to being overturned by the conservative majority on the court, which would greenlight the ban. In addition, the court has not struck down abortion restrictions on the basis of the ruling, which has rarely been used. Still, the situation is introducing rare complications for a Deep South state. “As Mississippi’s trigger law has been discussed in the state and nationwide, no one has taken into account the fact that the state Supreme Court has said the Mississippi Constitution protects the right to an abortion,” Mississippi Today wrote this week. “Apparently, Mississippi legislators also had forgotten about the 1998 state Supreme Court decision when they passed the trigger law in 2007.”

Missouri

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Missouri Supreme Court has not ruled on whether the state constitution recognizes a right to abortion.

Montana

Does a still-binding ruling hold that the constitution contains a right to abortion? Yes.

Context: The Montana Supreme Court held in a 1999 case, Armstrong v. State, that the state constitution’s explicit right to privacy in Article II, Section 10, included a right to abortion. Recent efforts by conservatives in Montana to elect a conservative majority to the court, however, could call that holding into question.

Nebraska

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Nebraska Supreme Court has not ruled on whether the state constitution recognizes a right to abortion.

Nevada

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Nevada Supreme Court has not ruled on whether the state constitution recognizes a right to abortion.

New Hampshire

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The New Hampshire Supreme Court has not ruled on whether the state constitution recognizes a right to abortion. The state ratified a state constitutional right to privacy in 2018, but this provision has not been tested in court as applied to abortion.

New Jersey

Does a still-binding ruling hold that the constitution contains a right to abortion? Yes.

Context The New Jersey Supreme Court held in a 1979 ruling that the state constitution’s implied right to privacy in Article I, Paragraph 1, includes protection of abortion rights, which it applied in 2000 to strike down abortion restrictions.

New Mexico

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context The New Mexico Supreme Court has declined to rule on whether the state constitution recognizes a right to abortion. But in a 1998 case, it ruled that the state’s equal rights amendment requires the state, when it provides healthcare to low-income residents, to also provide abortion services.

New York

Does a still-binding ruling hold that the constitution contains a right to abortion? Unclear.

Context In the 1994 case Hope v. Perales, the New York Court of Appeals (the state’s highest court) struck down a law restricting abortion but it did so by issuing an unexpectedly narrow ruling that sidestepped the question of the extent to which the state constitution guarantees a right to abortion. The scope of the ruling remains unclear. Recent efforts by state Democrats to amend the constitution to codify abortion access as a right have not been successful.

North Carolina

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context The North Carolina Supreme Court has not ruled on whether the state constitution recognizes a right to abortion; a 1997 ruling rejected claims that the state’s denial of public funding for medically necessary abortions violated the state constitution.

The narrow Democratic majority on the current court could prove more sympathetic to abortion rights in prospective future cases, but the partisan majority is on the line in two state supreme court elections this November.

North Dakota

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context The North Dakota Supreme Court ruled in 2014 that the state constitution did not recognize a right to abortion, in the case MKB Management Corporation v. Burdick. Later in 2014, state voters rejected a constitutional amendment that would have defined life as beginning at conception.

Northern Mariana Islands

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The constitution of the Northern Mariana Islands explicitly outlaws abortion, and the territorial supreme court has not further elaborated on the legality of abortion. A 1995 nonbinding opinion from the territorial attorney general suggested that abortion rights may nonetheless be protected by the covenant between the United States and the territory, as well as the territorial constitution. However, this informal opinion seems unlikely to alter the legal landscape.

Ohio

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context The Ohio Supreme Court has not ruled on whether the state constitution recognizes a right to an abortion, but one of the state appellate courts rejected that argument in a 1993 case.

Organizations that support abortion access filed a lawsuit after the Dobbs decision, asking state courts to protect such a right under the Ohio constitution. The state supreme court has a narrow Republican majority that is on the line in the 2022 midterms.

Oklahoma

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Oklahoma Supreme Court has not ruled on whether the state constitution recognizes a right to abortion. A case presently before the court is seeking to recognize that right.

Oregon

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Oregon Supreme Court has not ruled on whether the state constitution recognizes a right to an abortion, though the Court of Appeals rejected that argument in a 1983 ruling.

The 1983 ruling by the Court of Appeals did find that, if the state is providing funding for medically necessary services for pregnancy and childbirth, then the state constitution requires that it provide funding for medically necessary abortions; but it explicitly said this ruling was not about establishing a constitutional right to abortion. In any case, the Oregon Supreme Court did not validate its lower court’s analysis in its own 1984 ruling.

Oregon voters have repeatedly rejected constitutional amendments that would have banned or severely limited abortions.

Pennsylvania

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context The Pennsylvania Supreme Court held in the 1985 case Fischer v. Department of Public Welfare that the state constitution does not protect a right to abortion. (Given the liberal makeup of the current court, it is possible that its decision in Fischer could be revisited.)

Puerto Rico

Does a still-binding ruling hold that the constitution contain a right to abortion? Yes.

Context: The Puerto Rico Supreme Court has held since 1980 that the right to privacy in Article II, Section 8, of the constitution of Puerto Rico, which has historically had a broad application, provides protections for abortion rights. Lawmakers are still expected to push for new restrictions on abortion.

Rhode Island

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Rhode Island Constitution’s equal protection clause explicitly provides, “Nothing in this section shall be construed to grant or secure any right relating to abortion or the funding thereof.” The Rhode Island Supreme Court held in 2022 that that the state Reproductive Privacy Act is permissible under the state constitution—and that the impact of the state equal protection clause’s restriction doesn’t bar the legislature from recognizing abortion rights by statute.

South Carolina

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The South Carolina Supreme Court has not ruled on whether the state constitution recognizes a right to abortion.

South Dakota

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The South Dakota Supreme Court has not ruled on whether the state constitution recognizes a right to abortion.

Tennessee

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Tennessee Supreme Court ruled in a 2000 case Planned Parenthood of Middle Tennessee v. Sundquist, that the state constitution recognized a right to abortion. But in 2014, state voters added Section 36 to Article I of the constitution, which provided that the state constitution does not recognize a right to abortion.

Texas

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Texas Supreme Court has not ruled on whether the state constitution recognizes a right to abortion. While a 1993 ruling expressed openness to it on the basis of a right to privacy, the court did not affirm this, and it is now strongly conservative. In 2002, the court rejected the argument that the state’s refusal to fund medically necessary abortions violated the Texas Constitution, and its current conservative composition makes it unlikely that the court would revisit this issue.

U.S. Virgin Islands

The U.S Virgin Islands does not have a constitution; it operates under the Revised Organic Act of the Virgin Islands, which can be modified by the U.S. Congress. The Virgin Islands Code permits abortion.

Utah

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Utah Supreme Court has not ruled on whether the state constitution recognizes a right to abortion. 

But a case presently in state courts is seeking to recognize that right; a lower-court judge has temporarily blocked the state’s trigger ban, and the state supreme court may end up weighing on the issue.

Vermont

Does a still-binding ruling hold that the constitution contains a right to abortion? Unclear.

Context: The Vermont Supreme Court has not explicitly ruled on whether the state constitution recognizes a right to abortion. In a 1972 case, the court struck down an abortion restriction as unconstitutional, but did not clarify whether it was relying on the federal or state constitution to do so—and it has not further elaborated on that in subsequent decisions. However, in November 2022, a constitutional amendment establishing an explicit right to abortion will be voted on.

Virginia

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Virginia Supreme Court has not ruled on whether the state constitution recognizes a right to abortion.

Washington

Does a still-binding ruling hold that the constitution contains a right to abortion? Yes, but it’s complicated.

Context: The Washington Supreme Court ruled in the 1975 case State v. Kroome that the state constitution’s implied right to privacy in Article I, Section 3, protects abortion. This decision relied on the holding that the state constitution contained the same level of protections as the federal constitution; in the wake of the U.S. Supreme Court’s decision in Dobbs, then, the status of abortion protections under Washington’s state constitution is unclear.

Following Dobbs, Democratic Governor Jay Inslee has called for a state constitutional amendment explicitly protecting abortion rights. Also, state progressives have been especially successful at tapping into the Washington State constitution’s “untapped potential” for civil rights thanks to a progressive majority.

West Virginia

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The West Virginia Supreme Court of Appeals ruled in 1993 that the state constitution recognized a right to abortion. But in 2018, state voters added Section 57 to Article VI of the constitution, which provided that the state constitution does not recognize a right to abortion; the amendment effectively nullified the 1993 case.

Wisconsin

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Wisconsin Supreme Court has not ruled on whether the state constitution recognizes a right to abortion. 

A case presently in state courts brought by Democratic Governor Tony Evers and Attorney General Josh Kaul is asking for that right to be recognized under the state constitution. The supreme court’s conservative majority is on the line in the 2023 elections.

Washington, D.C.

The District does not have a constitution. It operates under the D.C. Code, which provides broad abortion rights, but Congress has the power to modify the D.C. Code. Congressional Republicans have already indicated their desire to outlaw abortion in D.C., as well as to take away its ability to govern itself.

Wyoming

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Wyoming Supreme Court has not ruled on whether the state constitution recognizes a right to abortion.

The post What All State Constitutions Say About Abortion, and Why It Matters appeared first on Bolts.