Where state abortion bans stand amid legal challenges
Jul 19, 2022, 6:14 PM | Updated: 7:11 pm
(CNN) — In more than a dozen states, legal fights are underway over abortion bans and other laws that greatly limit the procedure after the US Supreme Court ended a constitutional right to an abortion on June 24.
Abortion rights proponents have taken legal action, challenging several states’ abortion restrictions and have seen some success in temporarily blocking bans in at least five states: Idaho, Kentucky, Louisiana, Michigan and Utah.
Here’s where some states’ abortion bans stand as courts consider legal challenges:
Arizona: state seeks to lift hold on pre-Roe abortion ban
Arizona’s Republican Attorney General Mark Brnovich is asking a state court to lift a 1973 court injunction against an abortion ban enacted in 1901.
In a filing Wednesday with the Arizona superior court in Pima County, Brnovich pointed to the US Supreme Court’s recent ruling in Dobbs v. Jackson Women’s Health, which ended federal constitutional protections for abortion rights.
“It is beyond dispute that Dobbs represents a change in the very law that was the sole and express basis for the Second Amended Final Judgment,” Brnovich wrote, referring to the 1973 injunction.
The fight over the pre-Roe abortion ban comes after Arizona federal Judge Douglas L. Rayes blocked a “personhood” provision in an existing abortion ban in the state, forbidding the state from using it to impose penalties for abortions that would otherwise be legal under existing Arizona law.
“A preliminary injunction will not leave Arizona hamstrung. If Arizona wants to extend legal protections to the unborn—including, it seems, before medically recognized conception—nothing in this order precludes it from doing so clearly and explicitly, by amending the definition of ‘person’ in those discrete statutes where Arizona wants the change to operate, and by clearly and explicitly stating whether those applications exempt otherwise lawful abortion care,” Rayes wrote in his decision, which also noted that the provision could conflict with a state law set to take effect in September that bans most abortions after 15 weeks.
The injunction was granted following a motion filed by the Center for Reproductive Rights and the American Civil Liberties Union of Arizona.
Abortion rights advocates had worried that the state would use the language to prosecute providers or patients. “The personhood law classifies fetuses, embryos, and fertilized eggs as ‘people’ starting at the point of conception. The vague provision placed both providers and pregnant people at risk of arbitrary prosecution,” the ACLU of Arizona said in a news release Monday night.
Florida: state appealed, ban in effect
In Florida, a law banning abortions after 15 weeks took effect on July 1. A state judge on June 30 said he would issue a temporary statewide injunction and signed a written order on July 5. But the state also filed an appeal, a move that automatically stayed the judge’s order that temporarily blocked the ban. With the appeal, the law remains in effect while litigation continues. The plaintiffs in the case, Florida abortion providers, said they plan to file a motion seeking to reinstate the injunction.
Idaho: ban temporarily blocked and another lawsuit filed
The Idaho Supreme Court is holding a hearing on August 3 to consider arguments on two abortion challenges.
In April, the Idaho Supreme Court temporarily blocked the state’s six-week abortion ban that allows private citizens to enforce the law in the state with civil action. Abortion providers filed suit a week earlier saying the law violates several provisions of the state constitution.
Providers in Idaho have also challenged the state’s so-called trigger law that is set to go into effect on July 19 at the earliest. The law would make providing abortions a felony punishable by up to five years in prison, with exceptions for cases of rape or incest or to prevent the death of the pregnant person. The state Supreme Court is set to hear the case during the same August 3 hearing.
Kentucky: ban temporarily blocked
A state court in Kentucky on June 30 halted enforcement of the state’s trigger law and a law restricting abortions at around six weeks of pregnancy, granting a temporary restraining order against the two laws. The state’s Attorney General Daniel Cameron, a Republican, appealed to reinstate the enforcement of the abortion laws while legal challenges to them move through the courts, but Kentucky’s Supreme Court on July 5 denied the request. A hearing was held July 6 in Jefferson County Circuit Court but the judge has not yet ruled.
Louisiana: ban temporarily blocked
A Louisiana state judge on July 19 extended a temporary restraining order placed on the state’s trigger law, allowing for abortion services to continue in the state.
Baton Rouge District Judge Donald Johnson had granted a temporary restraining order against the law on July 12, allowing abortion services to resume. The order bars Louisiana Attorney General Jeff Landry and the head of the state’s health department, Courtney Phillips, from implementing and enforcing the state’s abortion ban.
The judge’s order will expire on the court’s decision about a preliminary injunction or at the end of 10 days, unless extended.
Landry previously warned in a tweet that “anyone performing abortions, pending outcome, will be culpable when the case is closed in favor of the laws of our State.”
The fight over Louisiana’s ban has seen some legal twists after a judge ruled earlier in July that the New Orleans court did not have the authority to pause the law as the case was transferred to a Baton Rouge state court. The move cleared the way for the state’s trigger law to take effect and, for a time, blocked abortion clinics in the state from operating.
Michigan: ban temporarily blocked
In Michigan, the state’s pre-Roe ban — a 1931 abortion ban, which was invalidated by the decision in Roe v. Wade but remained on the state’s books — was put on hold by a state court in May, before the US Supreme Court decision was handed down. Nearly a month later, Michigan Gov. Gretchen Whitmer, a Democrat who’s supportive of abortion rights, filed a lawsuit asking the state Supreme Court to declare the law unconstitutional under the Michigan Constitution.
Mississippi: appealed to state Supreme Court
Mississippi’s trigger law went into effect on July 7, after a Mississippi judge declined earlier in the week to temporarily block the ban. The trigger ban prohibits abortions in the state with exceptions only in cases of rape or if the pregnant person’s life is endangered. The state’s last abortion clinic, Jackson Women’s Health Organization, which challenged the trigger law, has appealed to the state Supreme Court.
North Dakota: lawsuit filed
North Dakota’s only abortion clinic, Red River Women’s Clinic, and its medical director sued on July 7 to block enforcement of the state’s trigger ban, which would ban abortion except in cases to save the life of a pregnant person. The lawsuit filed Thursday in state court argues that the trigger ban is unconstitutional under the North Dakota Constitution.
The ban is designed to take effect 30 days after the law is certified by the state attorney general to the legislative council. Attorney General Drew Wrigley wrote to the legislative council at the end of June, saying that the ban would take full effect on July 28.
In their lawsuit, the plaintiffs argue that Wrigley’s certification is “premature” because the US Supreme Court has not issued a judgment separate from the opinion in the Dobbs case.
Ohio: emergency hold denied
The Ohio Supreme Court denied state abortion providers’ request for an emergency hold on the state’s prohibition on abortions performed after fetal cardiac activity is detected, typically around six weeks into a pregnancy. The court’s ruling means the abortion ban can continue to be enforced as the case plays out.
Oklahoma: lawsuit filed
Provider groups have challenged Oklahoma’s 1910 pre-Roe abortion ban along with an abortion law enacted this year that goes into effect in August. Before the US Supreme Court overturned Roe, abortion providers had already brought separate challenges to different abortion laws in the state.
South Carolina: lawsuit filed
Abortion providers in South Carolina are challenging the state’s six-week abortion ban with a lawsuit filed in state court Wednesday.
The lawsuit alleges that the six-week prohibition violates several clauses of South Carolina’s Constitution. It also targets the design of the ban’s narrow exceptions for life of the mother, rape or incest. For instance, the lawsuit alleges that the rape exception runs afoul of the state constitution’s privacy protections because the exemption requires the provider report the abortion-seeker’s information to law enforcement.
The lawsuit was filed by Planned Parenthood South Atlantic and Greenville Women’s Clinic, as well as two individual providers. The providers filed with the lawsuit an emergency request for the court to quickly block the ban while the litigation plays out.
The six-week ban, passed by lawmakers in 2021, had been blocked by a federal court previously, however that hold was lifted after the US Supreme Court issued its ruling last month ending federal abortion rights protections, allowing for the ban’s revival.
Texas: pre-Roe abortion ban allowed to be civilly enforced
Texas’ nearly century-old abortion ban is allowed to be civilly enforced while the state waits for its trigger ban to kick in. A state court had issued a temporary restraining order against the pre-Roe law on June 28, which allowed abortions up to around six weeks into pregnancy to resume. But on July 1, Texas’ Supreme Court partially granted Republican state Attorney General Ken Paxton’s request to stay the lower court’s order.
Utah: ban temporarily blocked
A Utah judge has continued an injunction blocking the state’s trigger law from taking effect, siding with Planned Parenthood in allowing the procedure to continue while the case plays out in the courts. Judge Andrew Stone in Salt Lake City’s 3rd District Court previously granted a two-week injunction in the case, preventing the trigger law from being enforced.
West Virginia: 19th century pre-Roe abortion ban blocked
A state court judge on July 18 indicated that she had decided to block a West Virginia abortion ban dating to the 1800s, according to news releases from both sides of the case.
The decision was announced from the bench, both sides confirmed. A copy of the order was not immediately available, a court clerk told CNN. West Virginia plans to appeal the decision.
“Today’s decision is a sigh of relief, and means we can once again serve the people who reach out to us for abortion services,” Katie Quiñonez, executive director of Women’s Health Center of West Virginia and one of the plaintiffs in the lawsuit, said in a statement.
Quiñonez, the clinic and other individual providers had asked for the preliminary injunction in a lawsuit filed in June, alleging the legislature implicitly repealed the law with the abortion regulations the lawmakers passed recently. The lawsuit, filed in Kanawha County Circuit Court, also claimed the ban violated the state constitution.
West Virginia’s Republican Attorney General Patrick Morrisey said the court’s decision to block the law was “a dark day for West Virginia.”
On July 19, Morrisey filed a motion for a stay of injunction with the state Supreme Court of Appeals, saying: “We believe it’s critical to file for an immediate stay in light of this flawed decision and seek this emergency measure to prevent immediate loss of precious life.”
Wisconsin: lawsuit filed
Democratic state officials in Wisconsin have asked a state court to block Wisconsin’s pre-Roe abortion ban, which was allowed to take effect after the high court overturned the federal holding. The 1849 law criminalizes abortion in the state, including in cases of rape and incest.
The lawsuit asks a state court to “clarify that Wisconsin’s 19th century abortion ban with no exceptions for rape or incest has not gone back into effect,” and to deem it unenforceable.
This story has been updated with additional developments.
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