After the success of state amendments, what’s next for the pro-abortion movement?

Amending state constitutions through ballot measures has been a winning strategy for pro-abortion groups. Since 2022—the year the Dobbs v. Jackson Women’s Health Organization decision overturned the federal precedent declaring a right to abortion— 11 of the 14 states that have considered amendments enshrining abortion into state constitutions have passed those measures. The remaining 36 states have not considered pro-abortion amendments in that timeframe.

Not every state gives citizens the option to propose amendments. Pro-abortion groups in six more states currently have the ability to put proposed amendments in front of voters without the help of lawmakers. That means abortion supporters in other states will have to rely on legislatures to bring pro-abortion constitutional amendments to ballots—or on state courts to interpret abortion rights in existing constitutional language.

Only days after seven states passed pro-abortion constitutional amendments in the 2024 election, states made moves in both directions.

On Wednesday, the Privileges and Elections Committee of the Virginia House of Delegates advanced a proposed constitutional amendment that would enshrine a right to “reproductive freedom, including … abortion care” in the state constitution. The language would only allow the state to protect unborn babies in the third trimester but would, even then, include broad physical and mental health exceptions in laws prohibiting abortion.

The committee sent the measure to the House with 12 delegates voting in favor, 9 voting against. The vote took place in a meeting that supporters convened at the last minute, outside of the regular legislative session. Americans United for Life chief legal officer Steve Aden said he and his colleagues didn’t learn about the amendment until the afternoon before the committee met. “The usual shenanigans are going on when it comes to ramming abortion through contrary to the will of the people,” he said.

If the Virginia House and Senate pass the measure, both chambers will have to pass it a second time after a general election before sending it before voters. Democrats currently hold a slim majority in both the House and Senate, but a special election scheduled for January could flip the Senate to Republican control.

“Clearly … it’s not going anywhere if the Virginia Assembly changes hands,” Aden said. “The pro-abortion members of the Virginia Assembly know that their time may be short. … They’re just going to try to move forward as long as they have political space to maneuver.”

Legislatures in every state have the ability to amend their constitutions, and most of those states require lawmakers to bring the question before voters for amendments to pass. But not all state legislatures have a majority of lawmakers with the political will to enshrine abortion into their constitutions. Aden said Americans United for Life has not seen Republican-controlled legislatures signal that they plan to initiate pro-abortion ballot measures. In those states, pro-abortion groups are pursuing a different path forward.

One week after Election Day, the American Civil Liberties Union sued the state of Kentucky on behalf of a pregnant woman. According to the class-action lawsuit filed in Jefferson County Circuit Court, “Mary Poe” is in the first trimester of pregnancy and wants an abortion but is unable to abort her baby because of the state’s pro-life laws. She’s asking the courts to declare those laws unconstitutional on behalf of herself and women like her—other pregnant women who want abortions.

According to the lawsuit, “when individuals seek but are unable to access abortion, they are forced to take on the health risks, physical burdens, and other life-altering consequences of continued pregnancy and childbirth.”

Citing these reasons, the lawsuit claims the state’s protections for unborn babies violate the rights to privacy and self-determination in the state constitution. In a state where citizens can’t initiate ballot measures to amend their constitution, the case gives Kentucky courts an opening to interpret a right to abortion in the constitution’s existing language.

Kentucky Right to Life executive director Addia Wuchner said the lawsuit follows pro-abortion groups’ “greater plan … to undermine [pro-life laws] through constitutional amendments and challenges throughout the United States.”

Kentucky’s law currently protects babies from abortion throughout pregnancy except when the woman’s life or physical health is at risk. “They’re going to find every way they can to try to dismantle that law through the court system,” Wuchner said.

The state Supreme Court ruled in February 2023 that the abortion businesses that previously sued the state over its laws did not have legal standing to bring a lawsuit against the law protecting babies throughout pregnancy. Attorneys dropped that lawsuit but vowed to return with a patient plaintiff—someone who could not get an abortion because of the state’s laws. Last year the ACLU filed a lawsuit on behalf of “Jane Doe.” Attorneys withdrew the lawsuit after Doe miscarried her baby in December but said they would continue to look for other plaintiffs. Wuchner said people forwarded emails to her that ACLU was sending out, searching for a pregnant mother that could challenge Kentucky’s law. The result of that search was last week’s lawsuit involving “Mary Poe.”

The case shares at least one thing in common with other similar lawsuits challenging pro-life laws, according to Wuchner. “They do not recognize the humanity of the child,” she said.

Wuchner pointed to the language the lawsuit uses to describe an abortion procedure. It says a surgical abortion involves “the use of gentle suction, and in some instances, other instruments, to empty the contents of the patient’s uterus.”

“There’s no child,” Wuchner said, calling the wording “dehumanizing.” “It doesn’t talk about ending the life of a child, or even aborting a child and what that would mean.”

A hearing in the case took place Monday. In a Sunday email to pro-life supporters, Wuchner said the case is “effectively Kentucky’s Roe case,” referring to the federal lawsuit Roe v. Wade from 1970 in which a pregnant Texas woman sued for permission to abort her unborn baby. The U.S. Supreme Court eventually ruled in the case that women nationwide have a right to abortion.

“If we lose this battle, abortion facilities could reopen in Kentucky before Christmas,” Wuchner said.

This time around, pro-abortion groups could have a better chance of getting the Kentucky Supreme Court ruling they’re hoping for. On Election Day, Planned Parenthood-backed state Court of Appeals Judge Pamela Goodwine won her race for an open seat on the high court, claiming the seat from a retiring Republican justice who joined the majority to uphold the state’s pro-life protections in the court’s 2023 opinion.