Advocates for abortion rights battle against waiting periods and other restrictions as political repercussions of Roe's overturning unfold.
Advocates for abortion rights in Ohio and Michigan have shifted their focus to challenge laws that limited access to the procedure before the Supreme Court ended the constitutional right to an abortion in 2022. In Ohio, the ACLU used the recent amendments to the state's constitution to launch lawsuits that aim to strike down restrictions on accessing abortion pills and the state's mandatory 24-hour waiting period. In Michigan, a reproductive rights group is suing to remove the 24-hour waiting rule.
Supporters of reproductive rights argue that the robust language in the amendments reflects a backlash not only against the Dobbs v. Jackson Women's Health Organization ruling but also against how the 1973 Roe case was gradually weakened by conservative litigants and courts. The people's support for these broad amendments demonstrates their desire to protect reproductive rights as much as possible within the law, stated Rabia Muqaddam, a senior staff attorney at the Center for Reproductive Rights, which represents abortion providers suing the Michigan regulations.
Michigan and Ohio join a list of states, including reliably blue ones such as California, where similar ballot measures have been successful. The success of abortion rights advocates in these states, even in Ohio, where Republicans have dominated recent elections, is noteworthy.
Meagan Burrows, an ACLU Reproductive Freedom Project staff attorney involved in the Ohio litigation, said, "The people are making their voices heard in support of reproductive rights and reproductive autonomy and the ability for everyone to decide if, when, and how to continue a pregnancy and give birth."
As debates rage on in other states considering constitutional amendments to protect abortion rights, opponents warn of deception in the pro-choice campaigns. Katie Daniel, the state policy director for Susan B. Anthony Pro-Life America, noted, "Running deceptive campaigns is the playbook for Florida, Arizona, Missouri, and every other state with abortion on the ballot, but the litigation proves these amendments go further than they will ever admit in a 30-second commercial."
Abortion rights advocates point out that the legal landscape differs from state to state, making it difficult to predict the potential disputes arising from the proposed amendments. However, anti-abortion activists in Michigan are attempting to overturn the successful ballot measure through a federal lawsuit. The lawsuit challenges the state's new constitutional amendment with various claims, including fetal personhood arguments. In Michigan's case brought by the Center for Reproductive Rights, State Attorney General Dana Nessel, a Democrat, opted not to defend the waiting period and other targeted abortion laws. The lawsuit also takes aim at limitations on the kinds of healthcare providers who can perform abortions and a mandate that requires providers to present patients with a specific counseling script.
Facing resistance from attorney general Eric Restuccia, a Republican, the abortion rights advocates seek to temporarily suspend the restrictions while the case is heard. He countered that the laws in question have been in place for more than 30 years, and the new amendment does not indicate the intention of the people to enact a major shift in how things were before Dobbs was decided. He defended the counseling script as "neutral and necessary for ensuring that any consent by a patient is a knowing and informed one."
Marnon, the legislative director of Right to Life of Michigan, expressed doubts about the motives of the plaintiffs, stating, "They were unable to use the democratic legislative process to repeal this law. It was up for repeal, and there were members on both sides of the aisle who didn't agree that this law should be repealed." The Ohio ACLU lawsuit, filed in March, goes after similar counseling requirements and the 24-hour waiting period for abortion seekers.
In response, Ohio's Republican attorney general argued that the ballot initiative did not intend to instigate a significant change in the legal landscape, merely restoring the federal framework that existed before the Dobbs ruling.
This legal standard, set out in the 1992 Supreme Court case Planned Parenthood v. Casey, permits states to enact abortion restrictions as long as these don't present an "undue burden" on obtaining abortions prior to fetal viability. The Ohio amendment, though, establishes a much higher bar for states. It only allows constraints on abortion access if they are the "least restrictive means" to protect the patient's health.
Moreover, any restrictions on the treatment must comply with "widely accepted and evidence-based healthcare standards," based on the Ohio amendment.
To bolster his position, Ohio Attorney General Dave Yost refers not to the language in the amendment itself but rather the media coverage and communication surrounding it.
"Voters were primarily told by the influential and successful voices that the Amendment would return the situation to the status quo," Yost stated in a court filing.
The ACLU rebuts this by citing that, one month before the vote on the amendment, the state Attorney General himself described the proposal as more extensive than Roe and Casey. Yost now asserts that the advice didn't foresee a "wave of reassurance in October" reassuring that this increase had no further implications and merely "restored Roe" all along.
Using "All the means needed"
In Arizona, pro-abortion advocates are pushing to pass a constitutional amendment, which tends to mirrors the ones proposed in Ohio and Michigan. Currently, the Arizona legislature has repealed the almost complete ban on abortion, although a 15-week ban and counseling and waiting period requirements are still in effect.
Various campaigns exist for initiatives to broaden abortion rights in multiple additional states. However, in only a few states have abortion rights advocates crossed the hurdle to ensure that the proposals will reach the ballot.
The ACLU didn't respond to particular queries regarding the likelihood of more legal battles if the ballot campaigns in those other states turn out to be successful. In a statement to CNN, ACLU senior policy counsel Jessica Arons remarked that the measures the ACLU back are crafted "to take into consideration the one-of-a-kind access challenges that communities experience in each state."
"We're dedicated to employing every possible method available to ensure we can all make our own personal medical decisions during pregnancy without political interruption," Arons added.
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Source: edition.cnn.com
