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 emergent strategy bypasses direct confrontations over the substance of abortion access, instead employing judicial and legislative mechanisms to create insurmountable barriers for plaintiffs seeking to uphold or expand reproductive autonomy.

The landscape of abortion rights in the United States, particularly after the Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization, has shifted dramatically, returning the authority to regulate or protect abortion to individual states. While many state constitutions contain provisions that could be interpreted to safeguard reproductive freedom, navigating the legal system to assert these rights has become a complex and often frustrating endeavor. Beyond the contentious legal interpretations of "history and tradition" that critics argue can perpetuate historical inequities and have no rightful place in state court jurisprudence, a more subtle yet equally concerning trend is emerging: the strategic deployment of procedural roadblocks. These mechanisms, often enacted or leveraged by courts, serve to obstruct abortion rights litigation, effectively delaying or outright denying substantive review of cases concerning reproductive autonomy.

Tennessee: A Case Study in Procedural Delay Tactics

One of the most striking examples of this procedural maneuvering can be observed in Tennessee. In April, a group of pregnant individuals who suffered severe health consequences due to delays or denials of abortion under the state’s stringent ban faced the prospect of their case finally proceeding to trial. This trial was the culmination of a protracted legal battle, marked by repeated attempts by the state to halt the proceedings. For nearly three years, plaintiffs had sought to challenge the constitutionality of Tennessee’s law, arguing that its narrowly defined exceptions for medical emergencies violated their fundamental right to life.

Just one week prior to the rescheduled trial, the state made another attempt to derail the case. This time, however, the legal strategy shifted to exploit recently enacted legislative changes. In the weeks preceding this latest appeal, the Tennessee legislature had quietly passed two key statutory amendments. The first repealed a law that had previously waived sovereign immunity for the state in cases where constitutional violations were alleged but no monetary damages were sought. The second amendment granted the state an automatic right to appeal any denial of its sovereign immunity defense.

These legislative maneuvers were a direct response to prior judicial decisions. Both an intermediate appellate court and the Tennessee Supreme Court had previously rejected the state’s attempts to appeal based on sovereign immunity. This prompted the legislature to intervene, effectively altering the procedural rules of engagement mid-litigation. Armed with these new laws, the state filed another appeal. Consequently, the trial was once again postponed, leaving plaintiffs in a state of prolonged uncertainty and dashing hopes for timely accountability. This tactic of legislative intervention to create new procedural avenues for appeal, especially when existing ones have been exhausted or rejected, highlights a deliberate effort to prolong litigation and exhaust plaintiffs, thereby diminishing access to justice. The impact of such delays can be profound, exacerbating the trauma and harm already experienced by individuals who have faced life-threatening complications due to restrictive abortion bans.

North Dakota: Supermajority Requirements and Vague Legislation

In North Dakota, procedural technicalities also played a pivotal role in hindering the expansion of reproductive rights. The case of Access Independent Health Services v. Wrigley brought to the forefront the complexities of state constitutional interpretation when faced with restrictive abortion laws. Three out of the five justices on the North Dakota Supreme Court acknowledged that the state’s abortion ban was unconstitutionally vague regarding the circumstances under which abortion is permitted to preserve a patient’s life and health.

However, the state’s legal framework requires a supermajority of four out of five justices to declare a law unconstitutional. This procedural threshold meant that despite a majority of the court recognizing the law’s vagueness and its potential conflict with state constitutional guarantees, including unenumerated rights such as "procreative autonomy," the ban remained in effect. The lower court’s decision, which had struck down the ban, was consequently reversed. This outcome underscores how procedural rules, such as supermajority requirements, can effectively override the substantive legal opinions of a majority of a court, thereby perpetuating laws that may be constitutionally suspect. The dissenting justices, in their analysis, critiqued the majority’s reliance on a narrow interpretation of history and tradition, arguing that such an approach stifled the recognition of evolving rights and protections.

Georgia: Shifting Standing Doctrines and Expedited Bans

Georgia presents another instance where procedural shifts have significantly impacted abortion access litigation. In February 2025, the Georgia Supreme Court vacated a lower court decision that had found the state’s six-week abortion ban to be in violation of the constitutional right to liberty. The basis for this vacatur was not a review of the merits of the case, but rather a recent alteration in the state’s standing doctrine.

Just a month prior, the Georgia Supreme Court had overturned its prior stance on third-party standing in a separate case. This judicial redefinition meant that medical providers and reproductive rights organizations, who had brought the legal challenge in SisterSong v. Georgia, were no longer deemed to have the necessary legal standing to pursue their claims. This abrupt change in procedural rules effectively barred plaintiffs from challenging the abortion ban in court, even after a lower court had ruled in their favor.

Compounding these procedural issues, the Georgia Supreme Court had previously, without providing a detailed explanation, issued a stay on an injunction and allowed the six-week abortion ban to take effect immediately. This action, often described as occurring on a state-level equivalent of the U.S. Supreme Court’s "shadow docket," provoked a strong dissent from a justice who raised concerns about the procedural irregularities and the swift imposition of the ban. The implications of such procedural shifts are far-reaching, as they can quickly dismantle legal protections and leave individuals without recourse, even when fundamental rights are at stake.

Missouri: Preliminary Injunction Standards and Voter-Approved Amendments

In May 2025, the Missouri Supreme Court employed a procedural standard related to 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, finding them to be in violation of the state’s newly voter-approved Reproductive Freedom Amendment. The state’s highest court’s decision effectively overturned the trial court’s injunction, allowing the restrictive laws to go back into effect. This action demonstrates how the application of procedural standards, such as the criteria for granting or lifting preliminary injunctions, can have an immediate and significant impact on the availability of abortion services, even in the face of a direct mandate from voters to protect reproductive rights.

Utah: Legislative Interventions and Judicial Expansion

The state of Utah provides a concerning preview of potential future legislative interventions designed to create procedural hurdles. Utah’s comprehensive abortion ban has been blocked since 2022, following a trial court’s determination that it likely violated several 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 elaborated on how courts should interpret constitutional protections broadly to avoid curtailing rights, particularly when specific applications, like abortion, have historically faced disfavor.

The case had been progressing toward a resolution on its merits until 2026, when the Utah Legislature took action. A new three-judge panel was established specifically for constitutional cases, and the state sought to transfer the abortion case to this new panel, away from the trial court that had previously ruled against the ban. This maneuver has stalled the legal proceedings as attorneys for reproductive health providers challenge the legality of diverting the case.

Furthermore, in a move widely seen as a reaction to the Utah Supreme Court’s rights-protective rulings on abortion and other issues, the legislature controversially expanded the number of seats on the Utah Supreme Court. Such actions raise concerns about legislative attempts to influence judicial outcomes through structural changes, rather than engaging with the substance of legal arguments. This pattern of legislative action, aimed at altering the procedural landscape of constitutional litigation, poses a significant threat to the consistent application of legal protections for reproductive rights.

Broader Implications and the Erosion of Access

The cumulative effect of these procedural maneuvers across various states paints a clear picture of a deliberate strategy to circumvent direct judicial review of abortion bans on their merits. Following the overturning of Roe v. Wade, many trial courts have shown a willingness to allow plaintiffs to present their cases and argue for the protection of reproductive rights under state constitutions. However, legislatures and appellate courts, often influenced by anti-abortion advocacy, appear intent on quashing these efforts without issuing rulings that might be politically unpopular or that directly affirm abortion rights.

The increasing reliance on procedural obstacles suggests a desire to achieve the practical effect of banning or severely restricting abortion access through indirect means. This approach allows opponents of abortion rights to achieve their policy goals by creating legal and administrative complexities that can indefinitely delay or ultimately deny justice to those seeking to exercise their reproductive autonomy.

The high political stakes associated with controversial legal decisions mean that procedural tactics offer a less direct and potentially less scrutinized path to achieving desired outcomes. By focusing on issues of standing, sovereign immunity, appeal rights, supermajority requirements, or the establishment of specialized judicial panels, courts and legislatures can effectively prevent substantive legal arguments about reproductive freedom from being fully heard and decided. This trend poses a significant challenge to the principle of access to justice and threatens to erode established reproductive rights through a series of procedural delays and dismissals, ultimately cutting off momentum in favor of abortion access at the pass. The legal battles over reproductive rights are thus evolving into a complex interplay between substantive constitutional claims and the procedural rules that govern how those claims can be litigated, with significant implications for the future of reproductive healthcare access nationwide.

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