Updated Jun 27, 2022 - Health

Abortion rights activists plot next legal steps

An activist demonstrates outside the U.S. Embassy in Madrid on June 27 against the Supreme Court's decision to overturn abortion rights. Photo: Pablo Blazquez Dominguez/Getty Images

With Roe v. Wade overturned, abortion rights advocates are already bringing the next legal battle to the states as many of them move to ban abortion access.

Driving the news: Lawsuits challenging "trigger" laws aimed at making nearly all abortions illegal in Utah and Louisiana were quickly filed — and their bans were temporarily blocked by courts.

  • Nine states have made most abortions illegal following the Supreme Court's Roe decision on Friday.

Where it stands: Without Roe's federal protections, abortion rights advocates cannot use the case as a precedent to challenge state bans. Now, they have to take other things into consideration, including:

  • Whether specific state constitutions protect abortion access — which is a strategy that is being used by the plaintiffs in the Utah and Louisiana cases, who argue that the "trigger" laws violate these states' constitutions.
  • Whether there is some sort of state court precedent that protects the right to an abortion.
    • In states like New Mexico, Kansas, Montana, Alaska, Florida and Minnesota, the right to an abortion is protected by a state Supreme Court precedent, according to the Center for Reproductive Rights.
    • In Michigan, there is an ongoing legal battle in which Gov. Gretchen Whitmer (D) is asking the state's Supreme Court to set a precedent saying that abortion rights are protected under the state's Constitution.
    • In Mississippi, plaintiffs are arguing that a 1998 state Supreme Court decision protects abortion rights in the state.

What they're saying: "Everybody is making the best decisions that they can on an ongoing basis with the information that they have. So, we do expect that there will be challenges filed to 'trigger' bans in a number of states. But everything is being analyzed and all of the options are being considered," Julie Rikelman, the Center for Reproductive Rights senior director of U.S. litigation, told reporters last week.

  • The Center for Reproductive Rights is an abortion rights organization that has represented providers in litigation.

Zoom in: Potential legal battles may also focus on medication abortion, which is the process of using FDA-approved pills — mifepristone and misoprostol — to terminate a pregnancy within the first 10 weeks.

  • However, several states have taken steps to ban the mailing of these pills. Next, they could move to make them illegal.
  • The legal question here is whether states have the authority to ban FDA-approved drugs.
  • Experts say that legal precedent holds that states don't have the authority to ban FDA-approved drugs, Axios' Tina Reed reports, but that will not stop conservative lawmakers from trying.

What we're watching: As more states restrict access to abortion, people seeking care will be forced to travel hundreds of miles to another state that allows abortions.

  • States have previously attempted and failed to pass laws in an effort to stop people from crossing state lines for an abortion, and they could start trying to do so again.
  • In anticipation, some blue states have passed laws to protect providers and patients from those potential bans.
  • Justice Brett Kavanaugh said in a concurring opinion on the Roe decision that when answering the legal question about whether a state can bar people from traveling to another state for an abortion, he believes “the answer is no based on their constitutional right to interstate travel.”

The bottom line: It has been almost 50 years since states were allowed to regulate abortion as early as in fertilization, meaning that it is impossible to know what legal arguments in support of abortion rights will be successful in court without Roe.

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Editor's note: This is a developing story; please check back for updates

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