A New Way Some State Courts Limit Abortion Rights

In a subtle yet impactful shift, state courts across the United States are increasingly employing procedural mechanisms to restrict access to abortion, often sidestepping direct confrontations with the fundamental questions of reproductive rights. This strategy allows judicial bodies to effectively curtail abortion access without the political and legal ramifications of explicitly ruling on the constitutionality of abortion bans. While abortion rights are anchored in many state constitutions, navigating the judicial system to affirm these rights has become a formidable challenge, marked by a growing reliance on procedural hurdles rather than substantive legal arguments.

The Evolving Landscape of Abortion Litigation

The legal battles over abortion access have intensified since the U.S. Supreme Court overturned Roe v. Wade in 2022. With the authority to regulate or ban abortion now residing with individual states, litigation has shifted to state courts, where constitutional interpretations and legal precedents vary significantly. Plaintiffs seeking to protect or expand abortion rights are encountering not only established legal doctrines but also new strategies by state actors and courts that can obstruct their cases before the merits are even fully addressed.

One prominent tactic involves the use of "history and tradition" analysis, a legal framework that has been criticized for replicating past inequalities and borrowing from federal jurisprudence that may not be applicable to state constitutional law. However, a more insidious trend, as highlighted by recent cases, is the strategic deployment of procedural rules to act as insurmountable barriers. These "roadblocks" can delay, derail, or even nullify abortion rights litigation, irrespective of the core legal arguments concerning reproductive autonomy.

Tennessee: A Case Study in Procedural Obstruction

The state of Tennessee offers a stark illustration of how legislative action, coupled with judicial interpretation of procedural rules, can thwart abortion rights cases. In April, a trial was finally slated to commence for pregnant individuals who suffered severe health consequences due to delays or denials of abortion under Tennessee’s stringent ban. This trial, however, represented the culmination of years of legal maneuvering and appeals by the state, which repeatedly attempted to prevent the case from proceeding.

The plaintiffs’ claim centered on the assertion that the ban’s narrowly defined exception for medical emergencies violated their fundamental right to life. For three years, they had sought accountability in open court. Just one week prior to the rescheduled trial, the state made yet another attempt to halt the proceedings. This time, Tennessee cited two legislative amendments enacted just weeks earlier, which significantly altered the procedural landscape.

The first amendment repealed a law that waived sovereign immunity for the state in cases where constitutional violations were alleged but no monetary damages were sought. This waiver had previously allowed plaintiffs to sue the state for infringing upon their constitutional rights. The second amendment granted the state an automatic right to appeal any decision that denied its sovereign immunity defense. These legislative interventions were a direct response to earlier rulings by an intermediate court and the Tennessee Supreme Court, which had rejected the state’s prior attempts to appeal based on sovereign immunity. The legislature’s swift action effectively changed the rules of engagement mid-game, demonstrating a coordinated effort to impede legal challenges.

Consequently, the court was compelled to cancel the trial. The new laws created an avenue for protracted appeals, ensuring that the plaintiffs’ quest for justice would be further delayed, and their hopes for holding the state accountable for what they described as egregious violations of their reproductive autonomy would be further diminished. This sequence of events underscores how legislative changes can be weaponized to manipulate procedural rules and effectively deny access to justice.

North Dakota: Supermajority Requirements and Vague Legislation

In North Dakota, a different procedural mechanism – the requirement of a supermajority vote – served to uphold a state abortion ban, even when a majority of the court acknowledged its constitutional infirmities. In the case of Access Independent Health Services v. Wrigley, three out of the five justices on the North Dakota Supreme Court determined 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. Because this threshold was not met, the court was unable to overturn the ban. This outcome meant that a lower court’s opinion, which had struck down the ban as vague and in violation of state constitutional guarantees, including unenumerated rights like "procreative autonomy," was reversed. The dissent, comprising only two justices, presented an interpretation of history and tradition that, despite being a minority view, effectively dictated the outcome of the case. This scenario highlights how supermajority requirements, while intended to ensure broad consensus on constitutional matters, can be exploited to maintain the status quo and obstruct the will of the majority of the court on fundamental rights.

Georgia: Shifting Standing Doctrines and "Shadow Docket" Tactics

The Georgia Supreme Court’s approach in February 2025 further illustrates the reliance on procedural shifts to impede abortion rights. The court vacated a lower court decision that had found the state’s six-week abortion ban to be in violation of the right to liberty. The vacatur 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 overturned its own precedent on third-party standing in a separate case.

This change in doctrine had a profound impact on SisterSong v. Georgia, a lawsuit challenging the abortion ban. Medical providers and reproductive rights groups, who were plaintiffs in the case, were suddenly deemed to lack standing to bring their challenge. In a move that drew criticism for its procedural irregularities, the Georgia Supreme Court had previously, without issuing a reasoned opinion, placed a stay on an injunction and allowed the six-week abortion ban to take effect on the same day. This action, often referred to as utilizing a "shadow docket" – a term commonly associated with the U.S. Supreme Court’s expedited, non-precedential rulings – effectively sidestepped a full judicial review of the ban’s constitutionality, provoking a dissent from a justice who raised concerns about the procedural shortcuts.

Missouri: Preliminary Injunction Standards and Voter-Approved Amendments

In May 2025, the Missouri Supreme Court employed a procedural standard for preliminary injunctions to reinstate virtually 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 Missouri’s newly voter-approved Reproductive Freedom Amendment. By reinstating the bans based on a procedural interpretation, the court effectively circumvented the implications of the amendment, which was intended to enshrine reproductive rights in the state constitution. The reversal of the trial court’s injunction meant that the restrictive laws were back in effect while further legal challenges unfolded, demonstrating how procedural standards can be used to maintain restrictive policies despite direct challenges based on fundamental rights.

Utah: Legislative Intervention and Court Expansion

The state of Utah presents a complex scenario where legislative actions are directly aimed at influencing the judicial process in abortion cases. Utah’s total 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 and equal rights. The Utah Supreme Court upheld this injunction in 2024, providing guidance on how courts should interpret constitutional rights expansively to avoid curtailing them, particularly when specific applications, like abortion, have historically faced disfavor.

However, the case’s progress on its merits was significantly stalled this year when the Utah Legislature established a new three-judge panel specifically for constitutional cases. The state then sought to transfer the abortion case to this new panel, away from the trial court that had previously ruled in favor of abortion access. Attorneys for the providers are currently challenging the legality of this diversion.

Adding another layer to this situation, the Utah Legislature also recently expanded the Utah Supreme Court by adding two seats. This move, occurring in the wake of the court’s rights-protective rulings on abortion and other matters, has raised concerns among legal observers about potential political influence on judicial outcomes. Such legislative maneuvers, aimed at altering the composition and procedural pathways of the courts, can profoundly impact the future of abortion rights litigation in the state.

A Broader Trend: Procedure as a Weapon

The cases in Tennessee, North Dakota, Georgia, Missouri, and Utah collectively illustrate a disturbing trend: the increasing utilization of procedural mechanisms by hostile legislatures and appellate courts to achieve outcomes that they might not be able to secure through direct rulings on the merits of abortion rights. This strategy allows these entities to quietly restrict abortion access without issuing decisions that could be widely rejected by the public.

Following the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, many trial courts have been receptive to hearing arguments from plaintiffs and allowing them to present evidence of the impact of abortion bans. However, as these cases ascend to state appellate courts, a pattern is emerging where procedural technicalities become the primary means of limiting access.

The political stakes of unpopular legal decisions are undeniably high. In this environment, procedural maneuvers serve as a potent tool to halt the momentum of abortion rights advocates and preemptively curtail access to reproductive healthcare. This strategic use of procedure represents a significant challenge to the pursuit of justice and reproductive autonomy in state courts across the nation. The implications are far-reaching, potentially creating a patchwork of access that is increasingly dictated by judicial procedure rather than constitutional rights.

The author, Amy Myrick, is a 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