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Dozens of cases related to abortion will make their way through courts nationwide throughout 2023.
Federal lawsuits like one challenging the decadeslong FDA approval of an abortion medication are being closely watched by advocates on either side of the abortion access debate.
But most eyes are on state courts, where the battle for abortion access has primarily shifted after the overturn of Roe v. Wade in 2022.
Dozens of lawsuits have been filed under state constitutions and statutes to challenge abortion bans. As of Jan. 4, 34 cases have been filed in 19 states, according to a tracker by the Brennan Center for Justice, a nonprofit public policy institute, and the Center for Reproductive Rights.
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Jennifer Dalven, director of the ACLU’s Reproductive Freedom Project, said most cases to watch are at the state level, where litigation will have “a tremendous effect” on millions of people.
State courts in particular now “have the ability to preserve or restore access by interpreting their state constitution,” said Amy Myrick, senior attorney of the Center for Reproductive Rights judicial strategy team.
Here are some of the court cases experts told USA TODAY they are watching. This is not a comprehensive list of abortion litigation.
Abortion lawsuits move through state courts
- Arizona: In one of two cases testing abortion restrictions in Arizona, Planned Parenthood Arizona is challenging the state’s enforcement of a near-total abortion ban that dates back about 158 years. The case spotlights how, in some states, long-dormant abortion restrictions that were once invalidated by Roe v. Wade but not appealed could now be enforced.
- Florida: In one of three cases in Florida, abortion providers are challenging the state’s 15-week abortion ban, arguing that it violates individual privacy rights protected by the Florida Constitution.
- Georgia: Abortion providers are also challenging Georgia’ ban on abortions after about six weeks of pregnancy, a point at which many people don’t yet know they are pregnant.
- Idaho: Planned Parenthood is challenging Idaho’s “trigger ban” on abortion, arguing that it violates the right to privacy and equal protection under the Idaho Constitution.
- Indiana: In one of two cases related to abortion restrictions in Indiana, abortion providers are challenging Indiana’s total abortion ban, arguing it violates the Indiana Constitution’s right to privacy and equal privileges protections.
- Kentucky: Abortion providers filed a state court challenge to the state’s two abortion bans, arguing they violate the right to privacy and bodily autonomy protected by the Kentucky Constitution.
- Louisiana: Abortion access advocates in Louisiana are challenging the state’s near-total abortion ban, arguing it violates the state constitution.
- Michigan: In one of two cases in Michigan, abortion providers including Planned Parenthood of Michigan are challenging the state’s 1931 felony abortion ban, arguing that it violates the rights to liberty, privacy, bodily integrity and equal protection guaranteed by the Michigan Constitution and state civil rights laws. In November, Michigan voted to enshrine the right to abortion in the Michigan Constitution. This constitutional amendment took effect on Dec. 23.
- North Dakota: North Dakota’s only abortion provider, Red River Women’s Clinic, is suing to block the enforcement of the state’s near-total abortion ban, saying it violates the state constitution.
- Ohio: Abortion providers are challenging the state’s ban on abortion after about six weeks of pregnancy on the grounds that it violates the Ohio Constitution’s broad protections for individual liberties. Myrick from the Center for Reproductive Rights said this is a particularly important case because Ohio is “a really critical state for access” as large swaths of the Midwest face abortion bans.
- Oklahoma: Abortion providers in Oklahoma are challenging the state’s two total abortion bans with criminal penalties for providers. One of these bans has been on the books since 1910.
- Pennsylvania: Abortion providers are asking the state Supreme Court to strike down a ban on Medicaid coverage for abortion care in a case Michelle Banker, director of reproductive rights and health litigation at the National Women’s Law Center, said is “incredibly important for abortion access statewide.”
- South Carolina: Abortion providers in South Carolina are challenging the state’s six-week abortion ban, arguing that it violates the state constitution’s right to privacy and guarantee of due process.
- Utah: Planned Parenthood Association of Utah is challenging the state’s abortion restrictions, arguing that the ban violates the Utah Constitution.
- Wisconsin: Democratic Attorney General Josh Kaul is suing to block a long-dormant Wisconsin law banning most abortions. The law, first enacted in 1849, makes it a felony to perform an abortion at any state of pregnancy unless it’s to save a pregnant person’s life.
- Wyoming: Providers in Wyoming are challenging the state’s near-total abortion ban, arguing it violates the state constitution.
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Federal cases and efforts to watch: Abortion pill and EMTALA
Abortion opponents sue FDA over abortion pill
The conservative group Alliance Defending Freedom is suing the FDA in attempt to reverse the agency’s approval of the abortion drug mifepristone.
The drug, which was approved by the FDA for medication abortion in 2000, is considered a safe and effective abortion medication by the U.S. Department of Health and Human Services, the American Medical Association and the American College of Obstetricians and Gynecologists.
Dalven from the ACLU said “the data is definitive that mifepristone is safe and effective.” Still, she said the lawsuit “could have really dramatic effects on access to medical care.”
The fight over EMTALA
Passed in 1986, the Emergency Medical Treatment & Labor Act, or EMTALA, requires that physicians treat all patients, including pregnant people, in medical emergencies, regardless of state laws around the procedure, said Banker, from the National Women’s Law Center.
In July, the Biden administration issued a guidance reminding abortion providers of EMTALA and saying they are protected if they perform an abortion as part of emergency treatment.
That guidance is facing two legal tests in Texas and Idaho, according to Planned Parenthood. The state of Texas is suing the federal government to block the guidance, arguing it attempts to circumvent the state’s near-total abortion ban. Meanwhile, the Biden administration’s Justice Department has filed a lawsuit against Idaho, where an abortion law includes criminal penalties for providers performing abortions under any circumstances, including when the pregnant person’s life is at risk.
“Doctors are put in a really impossible situation because they either follow the state law and deny their patients the care they need, which is a violation of both EMTALA and their Hippocratic Oath, or they face criminal penalties,” Banker said.
Contact Christine Fernando at [email protected] or follow her on Twitter at @christinetfern.
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