The right to abortion is enshrined in the state constitution, but getting courts to uphold it can be a difficult road. One obvious problem is that decisions are made that use a flawed “history and tradition” analysis to reproduce the harmful inequalities of the past, borrowing from federal precedent that has no place in state courts. Another less obvious trend is equally worrying. That is, constitutional procedures can become a barrier to abortion rights and access.
Several recent decisions and developments have impeded abortion rights litigation for reasons unrelated to the merits of any particular case. In April, pregnant women who experienced horrific health consequences as abortions were delayed or denied under Tennessee’s ban finally went to trial after long delays after the state unsuccessfully tried to appeal the ruling that allowed the lawsuits to proceed. A week before trial, the state tried to appeal again, citing the court’s refusal to dismiss the plaintiffs’ argument that the brutally narrow exception to the criminal prohibition violates their right to life.
But this time, the state cited two legislative changes that the Legislature quietly enacted several weeks ago, repealing the sovereign immunity waiver law (which allowed the state to sue for constitutional violations for which no monetary remedy was sought) and giving the state the automatic right to appeal denials of the sovereign immunity defense. Intermediate courts and the Tennessee Supreme Court had rejected Tennessee’s earlier efforts to appeal based on sovereign immunity, and Congress jumped in to change the rules overnight. The court halted the trial because the new law took effect. result? Endless appeals further delayed the trial, dashing the plaintiffs’ hopes of waiting three years to hold the state accountable for gross violations of reproductive autonomy in open court.
Plaintiffs in North Dakota similarly acknowledged that procedural obstacles prevent the expansion of reproductive rights. in Access to Independent Health Services vs. Wrigleythree of the five justices on the North Dakota Supreme Court ruled that the state’s abortion ban was unconstitutional because it was vague about when an abortion would be allowed to protect the patient’s life or health. Nevertheless, because North Dakota requires a supermajority of four of the five justices to find a law unconstitutional, the court overruled the lower court’s opinion, holding that the ban was vague and violated the state’s constitutional guarantees of abortion rights, including unenumerated “reproductive autonomy.” As a result, rigid interpretations of history and tradition in the conflict between the two great justices effectively determine the outcome.
When Georgia’s Supreme Court in February 2025 reversed a district court’s ruling that the state’s six-week abortion ban was a violation of the right to liberty, the state did so not on the merits of the case, but on recent changes to existing principles. A month earlier, the court had overturned the third-party doctrine in another case. As a result, medical providers and reproductive rights organizations are challenging abortion bans. Sister Song v. Georgia You can no longer bring in your suit. (In a state-level version of the U.S. Supreme Court’s “shadow document,” the Georgia high court had earlier stayed the injunction without cause and allowed the state’s six-week abortion ban to go into effect the same day, sparking dissent over procedural irregularities.)
In May 2025, the Missouri Supreme Court also adopted a surprising procedure, this time to grant a preliminary injunction to reinstate nearly all abortion bans and restrictions in the state after the trial court had blocked them as violations of the state’s new voter-approved Reproductive Freedom Amendment.
Further threats loom, including legislative intervention to create new procedural hurdles similar to what happened in Tennessee. Utah’s outright ban was blocked in 2022, when a trial judge ruled it likely violated various provisions of the Utah Constitution protecting abortion, including inalienable rights and the right to equality. The Utah Supreme Court upheld the injunction in 2024, issuing an opinion explaining how courts should draw broadly on history and tradition to avoid truncation of rights when certain applications (such as abortion) of higher-level protections (such as bodily integrity) have been historically disadvantageous. The case proceeded on the merits until this year, when the Utah Legislature created a new three-judge panel for constitutional litigation and the state sought to have the case transferred from the trial court where it had previously lost. The exercise is currently halted while lawyers for the providers dispute the legality of moving the case to a newly convened committee. And, meanwhile, the Utah Legislature added two seats to the Utah Supreme Court in response to pro-rights rulings on abortion and other issues.
It’s all part of the trend. rear Dobbs vs. Jackson Women’s Health Organizations and decisions across the country have shown that the right to abortion exists, and many trial courts are prepared to let plaintiffs tell their stories and prove their case. But a hostile Congress and appellate courts want to quietly shut down abortion rights without making decisions that the public would reject. At a time when the political risks of unpopular legal decisions are high, the process provides another tool to dampen momentum in support of abortion rights and cut off access along the way.
Amy Myrick is a senior advisor at the Center for Reproductive Rights.
Recommended quote: Amy Myrick New ways some state courts are restricting abortion rightsSᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (June 22, 2026), https://statecourtreport.org/our-work/analysis-opinion/new-way-some-state-courts-limit-abortion-rights
