A New Way Some State Courts Limit Abortion Rights

In the ongoing legal battles over reproductive rights, a discernible and troubling trend is emerging in state courts: an increasing reliance on procedural maneuvers to obstruct abortion access, effectively sidestepping direct confrontations with the fundamental questions of reproductive autonomy enshrined in state constitutions. Rather than engaging with the merits of abortion rights cases, a growing number of judicial decisions are being influenced by technical legal arguments and legislative interventions that create significant roadblocks for plaintiffs seeking to vindicate their constitutional guarantees. This strategic use of procedural obstacles allows courts to delay or deny justice without issuing definitive rulings on the legality or constitutionality of abortion restrictions, a tactic that disproportionately impacts individuals seeking to exercise their reproductive freedom.

The Shifting Landscape of Abortion Litigation

While abortion rights are recognized in the constitutions of many states, navigating the judicial system to uphold these rights has become an increasingly arduous journey. Beyond the problematic use of flawed "history and tradition" analyses, which often import exclusionary federal precedents into state law without justification, a more insidious strategy is taking root. This strategy leverages the intricate architecture of constitutional procedure as a barrier, effectively preventing cases from reaching substantive review. The consequences are profound, leading to protracted delays, increased litigation costs, and the continued erosion of access to essential reproductive healthcare.

Tennessee: A Case Study in Procedural Obstruction

The state of Tennessee offers a stark illustration of this trend. In April 2026, pregnant individuals who had suffered severe health consequences due to delays or denials of abortion under the state’s ban finally saw a trial date set. This legal battle, originating from claims that the state’s narrowly drawn exceptions to its criminal ban violated their fundamental right to life, had already endured years of delays. The state, in its persistent efforts to prevent the case from proceeding, had made multiple unsuccessful attempts to appeal earlier decisions that allowed the litigation to advance.

Just one week before the scheduled trial, Tennessee’s legislature enacted swift and decisive legislative changes designed to create new procedural obstacles. The state cited two statutory amendments, passed in the preceding weeks, that repealed a law waiving sovereign immunity for constitutional violations where no monetary damages were sought. Simultaneously, these amendments granted the state an automatic right to appeal any denial of its sovereign immunity defense. This legislative maneuver was a direct response to prior rejections of Tennessee’s sovereign immunity appeals by both an intermediate court and the Tennessee Supreme Court. The immediate impact was the cancellation of the trial. This development means that plaintiffs, who have already waited three years to present their case in open court and hold the state accountable for what they describe as egregious violations of their reproductive autonomy, now face further indefinite delays due to a cascade of potential appeals. The legislative action effectively rewrote the procedural rules mid-litigation, illustrating a concerted effort to impede justice through legislative and judicial coordination.

North Dakota: Supermajorities and Vague Legislation

In North Dakota, procedural requirements also played a decisive role in limiting reproductive rights. In the case of Access Independent Health Services v. Wrigley, three out of the five justices on the North Dakota Supreme Court agreed that the state’s abortion ban was unconstitutionally vague regarding the circumstances under which abortion is permissible to preserve a patient’s life and health. However, North Dakota law mandates a supermajority of four justices to declare a law unconstitutional. Consequently, despite the majority’s acknowledgment of vagueness and potential violation of state constitutional guarantees, including unenumerated rights related to "procreative autonomy," the court was unable to strike down the ban. The ruling effectively reversed a lower court’s decision that had found the ban unconstitutional. The outcome, therefore, rested on the interpretation of a two-justice dissent, which relied on a "stilted reading of history and tradition," a method often employed to restrict rights rather than protect them. This outcome highlights how procedural thresholds, such as supermajority requirements, can be weaponized to uphold restrictive laws, even when a majority of the court acknowledges constitutional infirmities.

Georgia: Shifting Standing Doctrines and Expedited Bans

The Georgia Supreme Court, in February 2025, vacated a lower court decision that had found the state’s six-week abortion ban unconstitutional, violating the right to liberty. The court’s decision was not based on the merits of the abortion ban itself but on a recent alteration of the state’s standing doctrine. Just a month prior, the Georgia Supreme Court had overruled its third-party standing doctrine in a separate case. This shift meant that medical providers and reproductive rights organizations, such as SisterSong, which had been challenging the abortion ban, could no longer legally bring their suit. This abrupt change in legal precedent effectively stripped the plaintiffs of their ability to litigate the constitutionality of the ban.

Adding to the procedural complexities, the Georgia Supreme Court had previously, and without explicit reasoning, stayed an injunction and allowed the six-week abortion ban to take effect on the same day. This action, which occurred on the state’s equivalent of the U.S. Supreme Court’s "shadow docket," provoked a dissent from justices concerned about procedural irregularities and the lack of transparency in the court’s decision-making process. The combined effect of these procedural shifts was the immediate reinstatement of the restrictive abortion law, denying plaintiffs their day in court to argue the substantive constitutional questions.

Missouri: Preliminary Injunction Standards and Voter-Approved Rights

In May 2025, the Missouri Supreme Court employed a procedural standard concerning preliminary injunctions in a manner that reinstated nearly all of the state’s abortion bans and restrictions. This action occurred after a trial court had initially blocked these measures, deeming them violations of the state’s new voter-approved Reproductive Freedom Amendment. The state’s highest court, by adjusting the application of the standard for granting preliminary injunctions, effectively nullified the lower court’s protective order. This procedural ruling allowed the abortion restrictions to take effect, circumventing the voter-initiated expansion of reproductive rights and leaving the substantive constitutional challenge unresolved at the preliminary stage.

Utah: Legislative Interventions and Court Restructuring

The state of Utah faces a similar pattern of procedural obstruction, with legislative actions further complicating legal challenges to its total abortion ban. The ban has been blocked since 2022 by a trial court judge who found it likely violated various provisions of the Utah Constitution, including those protecting inalienable and equal rights. The Utah Supreme Court upheld this injunction in 2024, issuing an opinion that emphasized the need for broad interpretations of constitutional rights, cautioning against narrowly truncating protections based on historical disfavor of specific applications.

However, the case’s progress toward a final ruling on the merits was halted when the Utah Legislature established a new three-judge panel specifically for constitutional cases. The state then sought to transfer the case from the trial court that had previously ruled in favor of abortion rights. Attorneys for the reproductive health providers are now challenging the legality of diverting the case to this newly convened panel, creating another layer of procedural delay. Adding to the concern, the Utah Legislature also expanded the number of seats on the Utah Supreme Court, a move that critics suggest may have been motivated by the court’s rights-protective rulings on abortion and other issues, potentially influencing future judicial outcomes.

Broader Implications and the Evolving Legal Strategy

The incidents in Tennessee, North Dakota, Georgia, Missouri, and Utah are not isolated occurrences but rather indicative of a broader strategy being employed across the nation. Following the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade, many state trial courts have shown a willingness to allow plaintiffs to present their cases and have recognized that abortion rights exist under state law. However, legislatures and appellate courts that are ideologically opposed to abortion are increasingly utilizing procedural roadblocks to achieve their aims quietly.

This trend suggests a strategic shift from direct legal confrontation to procedural obstruction. By focusing on technicalities such as standing, sovereign immunity, supermajority requirements, or the creation of new judicial review mechanisms, courts and legislatures can effectively halt or significantly delay access to abortion without issuing rulings that might be publicly unpopular or directly challenge established constitutional principles. The high political stakes surrounding abortion access mean that unpopular legal decisions carry significant consequences. Consequently, procedural hurdles are emerging as a potent tool to stifle momentum for abortion rights and access, effectively cutting off litigation at the pass and prolonging the uncertainty and difficulty for those seeking reproductive healthcare. The implications extend beyond abortion, potentially setting precedents for how other fundamental rights are litigated and protected within state court systems when faced with legislative or judicial opposition.

Expert Analysis

Amy Myrick, Senior Counsel at the Center for Reproductive Rights, commented on this evolving legal landscape, stating, "We are witnessing a calculated effort to undermine reproductive freedom not through direct legal arguments about rights, but by manipulating the very rules of engagement within the judicial system. These procedural delays and legislative interventions are not just technicalities; they are intentional strategies designed to deny justice and obstruct access to essential healthcare, leaving individuals in precarious situations and eroding faith in the legal process."

The long-term impact of this trend could be a significant chilling effect on the ability of individuals to vindicate their constitutional rights in state courts. As litigation becomes more protracted and expensive due to procedural complexities, the practical availability of legal recourse diminishes. Furthermore, the manipulation of procedural rules can create an environment where legislative efforts to restrict rights are insulated from meaningful judicial review, effectively bypassing the checks and balances inherent in a democratic legal system. The focus on procedure over substance represents a significant challenge to the robust protection of constitutional rights at the state level.

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