A New Way Some State Courts Limit Abortion Rights

Hostile courts are increasingly using procedural hurdles to limit access to abortion, allowing them to avoid explicitly grappling with questions over reproductive rights. This evolving legal strategy bypasses direct constitutional interpretation, employing complex procedural maneuvers to delay, obstruct, or outright deny access to justice for individuals seeking to protect their reproductive autonomy. While abortion rights are often enshrined in state constitutions, the path to judicial recognition is becoming increasingly fraught with obstacles designed to circumvent substantive legal arguments.

One significant concern involves the invocation of flawed "history and tradition" analyses, often mirroring federal precedent that has proven detrimental to civil rights. This approach, rooted in originalist interpretations, frequently leads courts to replicate historical inequalities and disregard contemporary understandings of fundamental rights. However, a less overt, yet equally impactful, trend is the strategic deployment of procedural mechanisms as formidable roadblocks to abortion rights and access. These are not merely administrative delays; they are deliberate legal tactics that stymie litigation, often for reasons entirely unrelated to the core constitutional merits of a case.

Tennessee: The Shifting Sands of Sovereign Immunity

Recent developments in Tennessee exemplify this procedural gambit, illustrating how legislative action can swiftly alter the legal landscape to impede abortion rights litigation. In April, a group of pregnant individuals who had suffered severe health consequences due to delays or denials of abortion under Tennessee’s ban were finally poised to go to trial. Their legal journey had already been marked by protracted delays, fueled by the state’s persistent attempts to appeal decisions that allowed their case to proceed. These plaintiffs sought to challenge the constitutionally dubious nature of the ban’s narrowly defined exception, arguing it violated their fundamental right to life and bodily autonomy.

Just one week prior to the rescheduled trial, the state made yet another attempt to halt the proceedings. This time, however, Tennessee’s legal strategy shifted to leverage recently enacted statutory amendments. These legislative changes, enacted with remarkable speed, effectively repealed a law that waived sovereign immunity for constitutional claims where no monetary damages were sought. Simultaneously, new legislation granted the state an automatic right to appeal any denial of its sovereign immunity defense. This legislative maneuver was a direct response to prior rulings by both an intermediate court and the Tennessee Supreme Court, which had rejected the state’s earlier appeals based on sovereign immunity. The legislature’s swift intervention effectively rewrote the rules of engagement overnight, creating new procedural avenues for appeal. Consequently, the trial was canceled, and the plaintiffs faced further, indefinite delays. This outcome represents a significant setback, prolonging their wait for accountability for what they describe as egregious violations of their reproductive autonomy and effectively crushing their hopes of seeking justice in open court. The impact of these delays is profound, extending the period of uncertainty and distress for individuals who have already endured immense suffering.

North Dakota: The Supermajority Hurdle

In North Dakota, procedural technicalities have similarly obstructed efforts to expand reproductive rights. The case of Access Independent Health Services v. Wrigley highlighted the impact of supermajority requirements on constitutional interpretation. While three of the five justices on the North Dakota Supreme Court agreed that the state’s abortion ban was unconstitutionally vague regarding when abortions are permissible to preserve a patient’s life and health, their opinion was insufficient to overturn the law. North Dakota law mandates a supermajority of four out of five justices to declare a law unconstitutional. As a result, a lower court’s decision striking down the ban on grounds of vagueness and violation of state constitutional guarantees, including unenumerated rights to "procreative autonomy," was reversed. The dissenting justices’ interpretation, which relied on a narrow reading of history and tradition, effectively dictated the outcome of the case, leaving the abortion ban in place despite a majority’s concerns about its clarity and constitutionality. This scenario underscores how procedural rules, rather than substantive legal arguments, can determine the fate of fundamental rights.

Georgia: The Shifting Sands of Standing Doctrine

The Georgia Supreme Court’s actions in February 2025 further illustrate the strategic use of procedural doctrines to limit abortion access. The court vacated a lower court decision that had found the state’s six-week abortion ban to be in violation of the state’s constitutional right to liberty. The reversal was not based on the merits of the ban itself but on a recent alteration of the court’s standing doctrine. Just a month prior, the Georgia Supreme Court had overruled its long-standing third-party standing doctrine in a separate case. This shift in legal precedent meant that medical providers and reproductive rights organizations, such as those involved in SisterSong v. Georgia, were no longer deemed to have the legal standing to bring their challenge against the abortion ban.

This procedural shift had an immediate and dramatic impact. The plaintiffs, who had previously secured a lower court ruling in their favor, found themselves legally barred from continuing their case. This maneuver circumvented any substantive review of the abortion ban’s constitutionality. Adding to the controversy, the Georgia Supreme Court had previously, without offering explicit reasoning, stayed an injunction and allowed the six-week abortion ban to take effect on the same day. This action, described by a dissenting justice as a procedural irregularity, further fueled concerns about the court’s willingness to engage with the substantive legal questions surrounding reproductive rights. The use of standing doctrine, a procedural gatekeeping mechanism, effectively prevented the case from being heard on its merits, leaving the ban in effect.

Missouri: Preliminary Injunctions Under Scrutiny

In May 2025, the Missouri Supreme Court employed a procedural standard concerning preliminary injunctions to reinstate nearly all of the state’s abortion bans and restrictions. This decision came after a trial court had initially blocked these measures, ruling that they violated the state’s newly voter-approved Reproductive Freedom Amendment. The state supreme court’s intervention, focusing on the criteria for granting a preliminary injunction, effectively overturned the trial court’s protective order, allowing the restrictive laws to take immediate effect. This ruling highlights how the application of procedural rules governing interim relief can have a decisive impact on the practical availability of abortion, even before a full trial on the merits of the underlying constitutional claims.

Utah: Legislative Interventions and Judicial Expansion

Further threats to abortion access are emerging, with legislative bodies actively creating new procedural obstacles. In Utah, a total abortion ban has been blocked since 2022, when a trial court judge determined that it likely violated various provisions of the Utah Constitution, including those protecting inalienable rights and equal rights. The Utah Supreme Court upheld this injunction in 2024, issuing an opinion that emphasized the need for an expansive interpretation of historical precedent to avoid curtailing rights, particularly when specific applications, such as abortion, have been historically disfavored.

Despite this progress on the merits, the case has faced significant delays this year. The Utah Legislature established a new three-judge panel specifically for constitutional cases and subsequently sought to transfer the ongoing litigation out of the trial court that had previously ruled in favor of abortion access. Attorneys for the providers are currently challenging the legality of diverting the case to this newly convened panel. Compounding these developments, the Utah Legislature also recently expanded the Utah Supreme Court by adding two seats, a move that critics suggest was a response to the court’s rights-protective rulings on abortion and other matters. This legislative intervention, coupled with the creation of specialized judicial panels, signals a concerted effort to reshape the judicial process and potentially influence future outcomes in favor of abortion restrictions.

A Pattern of Procedural Obstruction

The developments in Tennessee, North Dakota, Georgia, Missouri, and Utah are not isolated incidents; they represent a discernible and growing trend. Following the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade, state-level legal battles over abortion access have intensified. Many trial courts have been receptive to hearing cases and allowing plaintiffs to present their arguments and evidence. However, a segment of state legislatures and appellate courts appears intent on curtailing abortion rights through indirect means, opting for procedural maneuvers rather than directly confronting the constitutional questions in a manner that might lead to public backlash against unfavorable rulings.

With the political stakes of controversial legal decisions remaining exceptionally high, procedural hurdles have emerged as a potent tool. These tactics are employed to stall momentum in favor of abortion rights and access, effectively cutting off avenues for legal recourse before substantive constitutional issues can be fully adjudicated. This strategic use of procedure represents a significant challenge to the principle of equal access to justice and the robust protection of fundamental rights within state legal systems. The implications are far-reaching, potentially undermining the ability of individuals to vindicate their constitutional rights and control their reproductive lives for years to come. The legal landscape continues to evolve, with procedural battles becoming as critical as the substantive arguments in the fight for reproductive freedom.

By Amy Myrick, Senior Counsel at the Center for Reproductive Rights.

Suggested Citation: Amy Myrick, A New Way Some State Courts Limit Abortion Rights, State Court Report (June 22, 2026), https://statecourtreport.org/our-work/analysis-opinion/new-way-some-state-courts-limit-abortion-rights