CNN
—
In states where the overturning of Roe v. Wade prompted voters to amend their state constitutions to protect abortion rights, long-standing abortion restrictions such as waiting periods and provider restrictions are now under legal attack.
Abortion rights groups in Ohio and Michigan are pivoting to successful ballot initiatives in those states to challenge abortion restrictions that were in place before the Supreme Court struck down the constitutional right to an abortion in 2022.
In Ohio, the ACLU is using recent amendments to the state’s constitution to rev up lawsuits attacking abortion regulations. One of the lawsuits challenges laws that have made it difficult to obtain abortion pills. The other targets Ohio’s 24-day waiting period and related abortion regulations.
In Michigan, a lawsuit filed by another reproductive rights group seeks to end the state’s 24-hour wait.
Abortion rights advocates say the strong language in the Michigan and Ohio amendments reflects voter backlash not only against the 2022 Supreme Court decision known as Dobbs v. Jackson Women’s Health Corp., but also against how the original 1973 Roe precedent has been chipped away over time by conservative litigants and the courts.
“When voters vote for these sweeping amendments, they’re saying, ‘We don’t want to go back to the pre-Dobbs situation.’ We want to ensure that reproductive rights are protected to the fullest extent of the law,” said Rabia Mukadam, senior staff attorney at the Center for Reproductive Rights, which represents abortion-provider groups challenging Michigan’s restrictions.
Similar referendum measures have passed in reliably Democratic states like California. But it’s worth noting that abortion rights advocates have been able to pass similar bills in purple states and even Ohio, where Republicans have held the upper hand in recent elections.
Megan Burrows, senior staff attorney at the ACLU, said, “We need a collective effort by the public to support reproductive rights and reproductive autonomy and the ability of every individual to decide for themselves when and how to continue a pregnancy and give birth.” “We are working with this in mind,” he said. Reproductive Freedom Project involved in Ohio lawsuit.
Similar moves could soon follow in other states considering proposals to add abortion rights protections to their constitutions.
Anti-abortion activists say abortion rights advocates are stretching the constitutional amendment beyond its meaning and suggest voters in other states should be wary.
“The strategy for Florida, Arizona, Missouri, and all the other states that have abortion on their ballots is to run deceptive campaigns, but the lawsuit claims that these amendments are not part of a 30-second commercial. It proves we are further along than we would like to admit,” said Katie Daniel of state policy. Susan B. Anthony, director of the Pro-Life America organization, said in a statement to CNN:
Abortion rights advocates say it’s difficult to predict the potential for litigation if the amendment is adopted because the legal landscape varies from state to state.
In at least one state, anti-abortion activists are actively working to overturn a state ballot measure. A lawsuit filed in federal court by Right to Life of Michigan and other anti-abortion groups and individuals seeks to block the state’s new constitutional amendment. The lawsuit raises several claims, including claims regarding the personhood of the fetus.
A briefing on the Longshot incident is underway.
In a Michigan lawsuit filed by the Center for Reproductive Rights, Democratic Attorney General Dana Nessel declined to defend the 24-hour waiting period and other abortion laws that are the subject of the lawsuit, but Democratic Parliament with a majority did not abolish it. They did so last year when they voted to repeal several other abortion restrictions that they said conflicted with the new constitutional amendment.
In addition to the waiting period, the new lawsuit challenges restrictions on the types of health care providers who can perform abortions and the requirement for health care providers to provide counseling scripts to abortion seekers; It says it is “biased” and “inaccurate.” “Unrelated” and “non-medical.”
The state’s Deputy Attorney General Eric Restuccia, a Republican, has been tasked with defending the restrictions, opposing calls from abortion rights groups to suspend them while the lawsuit continues.
In court filings, he wrote that the law at issue “has been in place for over 30 years” and that “nothing in the new constitutional amendment indicates a public intent to enact a law that would significantly depart from the law in place prior to the decision in Dobbs v. Jackson Women’s Health.”
He defended the counselling scripts as “neutral and necessary to ensure that patient consent is informed and well-informed”.
Genevieve Marnone, Michigan’s Right to Life legislative director, told CNN that the plaintiffs are using the courts to accomplish something that cannot be accomplished through legislation.
“They failed to use the democratic legislative process to repeal this law,” she said. “This law should have been repealed. There were members of Congress on both sides of the aisle who did not agree that this law should be repealed.”
A lawsuit filed in Ohio in March by the ACLU challenges similar counseling requirements, in addition to requiring abortion seekers to wait 24 hours after counseling before undergoing the procedure.
In a court filing opposing the ACLU’s lawsuit, Ohio’s Republican attorney general argued that the ballot initiative merely re-established the federal legal framework that was in place before the Dobbs decision. .
This legal standard, established in a 1992 Supreme Court case called Planned Parenthood v. Casey, allowed states to impose restrictions on abortion as long as they did not impose an “undue burden” on availability of abortions before a fetus becomes viable. But Ohio’s amendment sets the bar much higher: states can only impede access to abortion if it is the “least restrictive means” to ensure the patient’s health.
According to the Ohio amendment, any restrictions on procedures must conform to “widely accepted, evidence-based standards of care.”
Ohio Attorney General Dave Yost points to news articles and messages surrounding the amendment, rather than the text of the amendment itself, to support his argument.
“Voters were told, primarily by the voices of leading and successful voters, that the amendment would restore the status quo,” Yost said in a court filing.
The ACLU counters that a month before the amendment was voted on, even the state’s attorney general described the proposal as going beyond Roe and Casey. Yost now says the guidance was never intended for “an October wave of reassuring the public that there would be no such far-reaching effects from the amendments and that it was, after all, just a ‘restoration of Roe.'” claims.
In Arizona, abortion rights advocates are pushing a constitutional amendment that would enshrine a right to abortion using language similar to efforts adopted in Ohio and Michigan, where the state legislature recently lifted a near-total ban on abortion but retained the counseling and waiting period requirements and 15-week ban that were in place before the Supreme Court’s Dobbs decision.
Movements to expand abortion rights are also underway in several other states, but so far abortion rights advocates have not cleared the necessary hurdles to ensure the proposal is on the ballot. is only in a few states.
The ACLU declined to answer specific questions about the possibility of further litigation if the voting efforts in these other states are successful. In a statement to CNN, Jessica Aarons, senior policy counsel at the ACLU, said the measures the organization is involved in are designed “to address the unique access challenges communities face in each state.”
“I am determined to use every tool available to ensure that all of us can make personal medical decisions during our pregnancies free from political interference,” Aarons said.
