On Election Day, 10 states voted not only for the president, but also on the abortion issue. Specifically, whether abortion rights should be enshrined in state constitutions. Arizona, Colorado, Florida, Maryland, Missouri, Montana, New York and Nevada all voted in favor of abortion, with states like Arizona, Florida and Missouri explicitly voting to expand access to abortion beyond its restrictions more stringent existing laws.
But the victory for abortion rights advocates was not complete: Nebraska and South Dakota did not pass their abortion rights initiatives, while Floridians voted overwhelmingly in favor of the ballot measure (57%), but the results were not Achieve the 60% majority needed to pass the bill.
As Republicans prepare to take control of the president, House and Senate, and a conservative-majority Supreme Court, some legal experts are wondering how abortion rights and the fight for them will play out. They are preparing.
It is important to note that these adopted amendments have not yet entered into force.
Implementation is a specific process that looks different from state to state but generally follows a similar pattern, said Israel Cook, legislative counsel on the Center for Reproductive Rights’ national policy and advocacy team.
“There is usually some form of verification of the election results and then an effective date. [for the newly adopted amendment]. Once the effective date is set, the implementation phase begins,” she said.
She explained that this phase will involve litigation over how the amendments will affect existing law. Some experts say it will be a more uncertain and complicated process in states where existing laws conflict with these new amendments.
However, of the states that voted to enshrine abortion rights in their constitutions, Colorado, Maryland, Montana, New York, and Nevada have enacted fairly strong abortion protections. Fundamentally, the daily lives of abortion providers and pregnant women will not change.
“It’s good that they passed, but they didn’t really create anything new,” said Dale Margolin Cecka, director of the Domestic Violence Litigation Clinic at Albany Law School. “But it’s symbolic.”
For Arizona and Missouri, however, these constitutional protections profoundly changed existing law. Arizona currently prohibits abortion after 15 weeks. Overall, this protected the vast majority of abortions performed, but prior to passage of the constitutional amendment, this provided access to care for patients whose life-threatening conditions or fetal anomalies incompatible with life were discovered only after an autopsy at 20 weeks Barrier scanning is set up. In Missouri, abortion rights initiatives have fundamentally changed the status quo on abortion. Abortion is currently all but prohibited in the state; the amendment makes it illegal to interfere with abortion rights until “the fetus is viable.”
“So, who gets to define fetal viability?”
“Fetal vitality is a strange term, it’s not a legal definition,” Seka pointed out before continuing. “This is a set of judgments based on the training of a board-certified obstetrician.”
In fact, the American College of Obstetricians and Gynecologists (ACOG) points out that there is no single, officially recognized clinical definition of “survival rate.” In fact, the term is used in two different situations: one is whether the pregnancy is developing normally; . As such, ACOG “strongly opposes the inclusion of feasibility in legislation or regulation.”
But Cook pointed out that many of the amendments clearly state that “viability” depends on the judgment of the patient’s physician. While “anti-abortion activists will always find ways to argue,” there is precedent for each state’s definition of fetal viability.
“The center and other partners are really preparing for some of these debates and challenges as well,” she added.
In an email to Horrible Moms, the Center for Reproductive Rights added that “fetal viability” — generally considered to be around 24 weeks of gestation — “proved to be an enduring standard in the Roe v. Wade era.” ” and firmly oppose pregnancy-based bans. “These new amendments should be equally flexible,” they said.
States also do not require restrictions on abortion when the fetus is viable.
“That doesn’t necessarily mean the state has to restrict abortion before then,” Cook said. “It’s just that, if it makes sense, you can limit the most [that point]. So I think yes, the fetal viability part can be tricky sometimes and can be concerning, but I do think [it’s important to focus on the fact] We provide protections for abortion until it is feasible, and states can go beyond that.
Currently, there are no reliable federal protections for abortion.
Roe v. Wade was overturned in 2022 after nearly 50 years, the first and by far the most serious blow to federal abortion rights.
The Biden administration is trying to block the Emergency Medical Treatment and Labor Act (EMTALA), a federal protection designed to authorize hospitals to treat patients with the medical need for abortion, but the bill is currently in limbo as the Supreme Court refused to grant it. , heard Idaho’s challenge to the law.
“The court has decided whether state abortion bans can override EMTALA,” the center told Scary Mommy. “The ruling leaves millions of people in states that ban abortion vulnerable because hospitals are unwilling to provide them. Emergency abortion care, as state abortion bans carry the risk of severe criminal penalties. Therefore, state protections, especially at the constitutional level, are invaluable in safeguarding abortion rights.
“As an advocate in this space, EMTALA is the only light in the darkness we all see,” Cecka said, noting that the legislation was originally passed in the 1980s to prevent hospitals from turning away indigent patients in need of emergency care. . “EMTALA was passed for a good reason: You have to provide care. … This legislation made sense. Now EMTALA has just been gutted.
While President-elect Trump announced on the campaign trail that he would veto any federal abortion ban brought to him, his running mate J.D. Vance has expressed support for “minimum national standards,” which many abortion rights activists claim are just A euphemism. While there is no standard definition of “minimum national standards,” Trump, Vance and other congressional Republicans have expressed support for a federal ban on abortion procedures up to 15 weeks, effectively eliminating abortion protections beyond that period even after The same goes for states that currently allow exceeding that deadline.
“State constitutional amendments are the strongest form of protection at the state level, but unfortunately federal law and policy can supersede state law,” Cook said. “So there’s this fragility of those protections…if there’s a federal injunction. , our litigators and other policy folks are going to continue to try to work on a limited scale to see where we can protect abortion access and keep that access available and I think a lot of people are prepared to fight these things at the federal level as well.
“Abortion is a winning issue.”
Despite the troubling uncertainty about the future, Cook emphasized that abortion rights have proven popular time and time again.
“And it’s winning,” she said. “Even though we’ve encountered some obstacles. … We still have a lot to fight for and work toward… Look for people who are already doing this work, and know that you are not alone and that you have support: This is absolutely is a matter of success.
