Major Update on Post-Dobbs Abortion Litigation Ongoing at the State Level and How We're Taking Action

The Supreme Court’s recent decision in Dobbs v. Jackson Women’s Health Organization emphasized that, under the United States Constitution, the extent to which abortion should be restricted or allowed is a policy question reserved for voters and legislators.

As the Court noted, Roe v. Wade “represented the ‘exercise of raw judicial power’” that “sparked a national controversy that has embittered our political culture for a half century.” Overturning the erroneous decisions in Roe and Planned Parenthood v. Casey “return[ed] the issue of abortion to the people’s elected representatives . . . [which] is what the Constitution and the rule of law demand.”

If Planned Parenthood and its far-Left allies get their way, however, the right of voters across the country to make their voices heard on abortion policy will once again be improperly usurped by the courts. Although far-Left abortion activists like to claim that their extreme views are actually shared by a majority of Americans—despite the fact that an overwhelming majority of the American public has consistently stated that abortion should be generally illegal after 13 weeks of pregnancy—these activists remain committed to destroying the public’s right to decide the issue of abortion through their elected representatives.

Rather than focusing on trying to convince the public and state legislatures of the merit of their preferred policies, Planned Parenthood and its allies are waging a national campaign to try to convince state courts to engage in a Roe-style “exercise of raw judicial power” by rewriting their state constitutions to include a “right” to abortion. In other words, they seek to replace the “national controversy that has embittered our political culture for a half century” with dozens of state-level, court-imposed abortion “rights” that will continue to poison our political culture.

The ACLJ has been tracking numerous lawsuits filed across the country that seek to enshrine an abortion right in state constitutional law, which would severely limit the right of the state’s voters and legislators to set abortion policy that reflects the state’s values. We will be submitting amicus briefs to state supreme courts in various cases to counter this flawed, undemocratic attempt to usurp the power of the people to decide the abortion issue.

Some of the cases of interest being litigated thus far include the following:

Florida: A lawsuit filed with a trial court (weeks before the Dobbs decision was issued) asserts that a law that prohibits abortion after 15 weeks, with certain exceptions, violates the state constitution. The plaintiffs obtained a temporary restraining order (TRO), but the state’s appeal automatically put the law back into effect for now.

Idaho: An original action was filed with the state’s Supreme Court to challenge the state’s trigger ban, which will go into effect as early as August 18. The lawsuit asserts a state constitutional right to abortion. The court is focusing on several procedural questions raised by the lawsuit for the time being.

Kentucky: A lawsuit filed in a circuit court seeks to have the state’s trigger ban, and also a ban on abortion after a fetal heartbeat is detected, held unconstitutional under the state constitution. A TRO currently in place prevents enforcement of the two laws while the lawsuit is pending.

Michigan: We have already filed two briefs in opposition to the Michigan governor’s attempt to have an abortion right “found” in the Michigan Constitution. This lawsuit was filed shortly after a draft of the Dobbs opinion was leaked.

Mississippi: A lawsuit that was filed with a trial court asserts that there is a right to abortion under the state constitution. The court denied a request for a TRO.

Ohio: An original action was filed at the Ohio Supreme Court to challenge the fetal heartbeat law that took effect in light of Dobbs. The lawsuit asserts a state constitutional right to abortion.

Oklahoma: An original action was filed with the Supreme Court of Oklahoma that claims that a 1910 statute and a 2022 statute both violate the Oklahoma Constitution. The lawsuit asserts that the state constitution provides a right to abortion.

Utah: A lawsuit filed with a trial court claims that there is a right to abortion in the state constitution. The court issued a TRO preventing enforcement of the trigger ban that took effect after Dobbs.

We are monitoring lawsuits filed in several other states as well. The ACLJ will continue to defend unborn human lives as well as the right of American voters to not have their ability to weigh in on an issue of monumental importance improperly limited by flawed Roe-style judicial edicts. And we are preparing to file amicus briefs at the appropriate stage in support of these lifesaving state laws.

Read more about our pro-life efforts and see what the abortion laws are like in your state, through our interactive 50-state map. You may be surprised.