In the Abortion Fight, State Courts Are the Next Battleground. Here's What to Know.
This article is part of POPSUGAR's project Roe, 50 Years Later, a collection of stories marking what would have been the 50th anniversary of Roe v. Wade. This moment comes more than six months after the Supreme Court struck down the constitutional right to an abortion in Dobbs v. Jackson Women's Health Organization, and these stories seek to mark the past, present, and future of abortion access in America.
Since the overturning of Roe v. Wade in June 2022, the legal landscape for abortion has splintered into 50 pieces: each state now holds the power of determining what its laws around abortion look like.
In Georgia, American Civil Liberties Union staff attorney Julia Kaye has been busy for the past six months. She's part of a coalition legally challenging the state's six-week abortion ban, which took effect in July. Kaye, along with other lawyers and reproductive-rights advocates, has argued that the ban was void on arrival under the state constitution because it was signed into law in 2019, before the Supreme Court overturned Roe, and that the ban violates Georgia's state constitutional right to privacy. Now, the legal challenge is working its way through state courts.
"We have an army of voters standing beside us, ready to protect this right."
In October, testimony in the case featured ob-gyns, reproductive-justice experts, psychiatrists, and ultrasound technicians. They spoke about the effects of denying patients access to abortion in a state with one of the country's highest maternal mortality rates. As Kaye recently told POPSUGAR, the ban is disproportionately affecting people of color and low-income people — as well as impeding care for miscarriages and pregnancy complications, forcing sexual-assault victims to carry and deliver their rapist's baby, and tethering patients to abusive partners.
"The ban has subjected countless Georgians to the severe medical risks of pregnancy and childbirth, including psychiatric risks — it is dooming families to a life of poverty by forcing them to add a child to their family that they do not want and they cannot afford," she said.
But for now, abortion remains banned after six weeks of pregnancy. In November, a trial court judge ruled that the ban was indeed invalid under Georgia's state constitution and struck it down. For one week, access to abortion up to 22 weeks in pregnancy was restored. But on Nov. 24, the Georgia Supreme Court reinstated the ban while the state's appeal of the trial court ruling continues.
Elsewhere, similar challenges are being heard in state courts. From Arizona to Florida to Ohio, abortion bans hang in the balance as legal challenges continue. Just earlier this month, the South Carolina Supreme Court — in a move very different from Georgia's — struck down the state's six-week abortion ban, ruling that it violated the right to privacy laid out in the state's constitution.
We spoke with Kaye about what readers should know about state courts' power in a post-Roe America, the "devastating" impact extreme abortion bans are having on patients, and why there is still reason to hope for abortion-rights supporters.
POPSUGAR: Has there been anything about the post-Roe landscape that has particularly surprised you, versus what you were expecting back before the ruling?
Julia Kaye: If anything, the fallout from the Supreme Court's shameful decision overturning Roe v. Wade has been even more devastating than we had anticipated. Approximately 36 million women as well as trans and nonbinary folks currently live in states where abortion has been banned. In practice, that means that huge numbers of people across this country are being forced to suffer the profound medical risks and pain and life-altering consequences of forced pregnancy and childbirth.
We are also seeing collateral consequences for miscarriage care and care for pregnancy complications, as well as a range of other reproductive-health services, as healthcare providers struggle to parse the confusing language of these bans in determining whether they might go to prison for providing critical healthcare to people in need.
Julia Kaye. Image Source: Marissa Sher
PS: You've been working on Georgia's abortion ban, which is an ongoing legal battle. Can you talk about what's next in the fight for you all?
JK: We will have oral arguments before the Georgia Supreme Court in March of 2023 on whether this 2019 abortion ban was void on arrival under the Georgia constitution. And once the court rules on that question, even if we lose, there is still a legal claim pending before the trial court, which is whether this six-week abortion ban violates the state constitution's right to privacy. So the fight absolutely continues in Georgia, but it is simply heartbreaking that for at least the foreseeable future, patients in the state – and disproportionately communities of color – will continue to suffer under this abortion ban.
PS: And I think what that shows is the outsized role that state Supreme Courts now have. What do you think people should understand about that power and how that impacts real people?
JK: Just to level-set, it's important for readers to understand that our rights in this country are protected by the US Constitution, which is really a floor of constitutional protections, as well as by the constitutions of each individual state, which can go far beyond the US Constitution in protecting civil liberties and often do. For many years, advocates have turned to state courts to ask them to step in when the US Supreme Court turns its back on patients' rights in regard to this essential reproductive healthcare.
We've had some success. So, for instance, decades ago, the US Supreme Court upheld congressional restrictions on Medicaid coverage for abortion, which really throws poor people under the bus and, for many years before the Dobbs decision, made it impossible for many people of color and people with lower incomes to be able to take advantage of the right protected under Roe v. Wade. However, state constitutional challenges in a number of states succeeded in winning Medicaid coverage under state constitutions, and those were huge victories for reproductive justice.
So it's not a new strategy. But now that we do not have the backstop of the federal Constitution, state Supreme Courts have outsized power to dictate whether or not women and trans and nonbinary folks in those states can access this right or will instead be subject to these kinds of devastating political intrusions into their bodies and their lives.
PS: Especially in the midterms, we saw that voters really do want to protect access to abortion. How do you see that playing into the post-Roe legal landscape?
JK: It is absolutely clear from both consistent polling data over decades, as well as the electoral successes of the post-Dobbs era, that a strong majority of this country believes that people should have the right to decide for themselves whether and when to have a child. That knowledge is a huge part of what keeps me going. We are not only fighting on the side of justice, science, and compassion, but we have an army of voters standing beside us, ready to protect this right, even, in some cases, when it means voting against the political party that they would otherwise prefer.
With that said, there are certainly limits to the ability of ballot measures to restore access, because many, many states, including a number of states that have severe abortion bans, do not as a general matter permit citizen-initiated constitutional amendments to be put on the ballot. And in other states, like Ohio, already we are seeing nefarious actions by state legislators to try to increase the threshold for winning a ballot measure because they are so fearful that abortion will be put on the ballot in Ohio and the people's will will prevail.
Another deeply concerning threat on the near horizon is a nationwide abortion ban. There is absolutely no question that if an antiabortion politician wins the White House and Congress in 2024, we will see some kind of nationwide abortion ban introduced, and the only question will be just how early in pregnancy are they are going to cut off access to healthcare.
And on top of that, antiabortion advocacy groups are bringing multiple lawsuits to try to take medication abortion off the market and force the FDA to withdraw approval for this incredibly safe and effective medication because they know that patients like, and are widely utilizing, this safe method — and that abortion pills are allowing many patients to continue to access the care they need, even in banned states.
So I am not at all pollyannaish about the road ahead. Things may get even worse before they get better. But there are bright lights of hope, and what I can say without hesitation is that there are thousands — millions — of people across the country who are fighting for true reproductive justice in an endless variety of creative ways — from the courts, and through door knocking and phone banking and fundraising and letters to the editor and organizing on college campuses and persuading their family members over holiday dinners and beyond. And eventually, we will win.
This interview has been edited for length and clarity.