State supreme courts take up abortion cases

Since the Supreme Court ruled in June 2022 in Dobbs v. Jackson Women’s Health Organization that there is no right to abortion in the U.S. Constitution, the legal battleground for abortion has shifted from federal to state courts. Just last week, one woman in Texas and another in Kentucky filed two separate lawsuits in their states, seeking permission to obtain abortions.

This week, justices in three state Supreme Courts will hear oral arguments in three other ongoing state cases. “All of the cases are really emblematic of where litigation is at post-Dobbs,” said Erin Hawley, senior counsel for Alliance Defending Freedom, a Christian law firm that will be representing pro-life parties in all three of the cases. “And that’s in the states, dealing with sometimes complicated procedural issues.”

Here’s a rundown of the cases justices in Arizona, Wyoming, and New Mexico will hear this week.

Planned Parenthood Arizona v. Mayes

The law: Planned Parenthood is challenging a law that protects most babies from abortion starting at conception. It has been on the books since before the Roe v. Wade decision in 1973. Following Roe, a court ruled the law unenforceable due to the newly declared federal right to abortion. But after the Dobbs decision overturned Roe, then-Arizona Attorney General Mark Brnovich asked the state courts for permission to begin enforcing the law again.

The question: Can the state enforce the pre-Roe law now that the Supreme Court has ruled there is no constitutional right to abortion? In September 2022, a lower court said yes, and the law took effect—but only temporarily. Another judge later blocked the law’s enforcement, pointing out that the state legislature had recently passed a measure protecting unborn babies at 15 weeks, and that that law should be in effect.

The argument: Meanwhile, current Attorney General Kris Mayes replaced Brnovich and decided not to do her job to defend the pre-Roe law in court. So a pro-life doctor and an elected county attorney stepped in and are now defending the law with the help of Alliance Defending Freedom.

“We think that the prior law should also be in effect,” said Hawley, pointing out that the bill lawmakers passed to protect unborn babies at 15 weeks specifically says that it does not repeal the pre-Roe law. “…The fact of the matter is that most abortions take place well before 15 weeks, and so their pre-Roe law would really move Arizona into a sphere of being pro-life.”

What comes next: Only six of the state’s seven justices, all appointed by Republican governors, will hear the case. One pro-life justice recently recused himself over past statements accusing Planned Parenthood of atrocities. Hawley said Tuesday’s hearing will likely end the case. She expects the justices to take a few months before issuing their final decision about whether or not Arizona’s pre-Roe protection for unborn babies is still enforceable. If the justices split evenly, the most recent decision blocking enforcement of the pre-Roe law would stand, according to the Arizona Republic.

Details: Tuesday, Dec. 12, at 9:30 a.m. MST in the Arizona Supreme Court. Watch a livestream or archive of the oral arguments at the Arizona Judicial Branch website.

Johnson v. State of Wyoming II

The law: Pro-abortion groups and individuals sued Wyoming over a 2022 law protecting most unborn babies starting at conception. A judge blocked its enforcement, so the state legislature in spring 2023 passed another bill that attempted to resolve some of the alleged issues of the previous law. The plaintiffs filed suit again.

The question: Can pro-life lawmakers, a state official, and Right to Life of Wyoming intervene as defendants in the case? Tuesday’s oral arguments will have little to do with the plaintiff’s claim that the state’s pro-life protections violate the Wyoming Constitution. Instead, justices will weigh whether the pro-life individuals and organization can join the suit as defendants.

The argument: While Wyoming Attorney General Bridget Hill is defending the state’s law, she has not incorporated factual evidence into her case and is focusing on legal arguments alone. The parties intervening in the lawsuit want to be able to contribute evidence that is missing from the case to counter the plaintiff’s claims that abortion is healthcare and a fundamental right. A lower court denied their motion to intervene, so Alliance Defending Freedom filed an appeal with the state supreme court. Meanwhile, a trial court on Thursday will consider whether or not the pro-life law is constitutional.

What comes next: “We would hope that the Wyoming Supreme Court would rule quickly … so that we would be able to enter the case at the district court as soon as possible and to supplement the record with expert reports and other evidence… detailing the harms of abortion,” Hawley said.

After the five Republican-appointed justices on the state Supreme Court resolve this procedural question, she said it would likely be several more months before the courts settle the question of whether or not the pro-life law can take effect.

Details: Tuesday, Dec. 12, at 9 a.m. MST in the Wyoming Supreme Court. Listen to a live broadcast of the arguments on the Wyoming Judicial Branch website.

State of New Mexico v. Board of County Commissioners for Lea County

The law: A handful of local governments in the state passed ordinances after the Dobbs decision in 2022, intending to keep abortion businesses from moving in. State Attorney General Raúl Torrez filed an emergency petition with the New Mexico Supreme Court in January, asking it to call these ordinances unconstitutional and to declare that the state constitution guarantees a right to abortion.

The question: Does the New Mexico Constitution include a right to abortion? New Mexico lawmakers in 2021 repealed the state’s pre-Roe protections for unborn babies, but no amendments or past court cases have ever said the state guarantees a right to abortion.

The argument: “Our argument is that it would be wholly improper for the New Mexico Supreme Court to find a constitutional right to abortion,” said Hawley, who will be representing one of the counties during Wednesday’s hearing. She added that Torrez’s emergency petition is an inappropriate way to challenge the law since it bypasses the normal litigation process, skipping straight to the state’s highest court.

Torrez also argues that a law the legislature passed in the spring preempts the ordinances by prohibiting public bodies from restricting abortion “within the medical standard of care.” But attorneys for the local governments argue the ordinances simply apply existing federal laws prohibiting shipping and delivering anything designed to perform an abortion, including abortion drugs. An act that violates federal law, they say, cannot be within the standard of care since federal law takes precedence over state law.

What comes next: Hawley said the justices, in the months after the hearing, will either dismiss Torrez’s emergency petition or grant it, ruling the ordinances unenforceable and declaring a right to abortion in the state constitution. “I would really hope and pray here that the New Mexico Supreme Court does not find a constitutional right to abortion,” Hawley said. “That really would make it very difficult for the people to protect life.”

Details: Wednesday, Dec. 13, at 9:30 a.m. MST in the New Mexico Supreme Court. Listen to a live broadcast of the arguments on the New Mexico Judicial Branch website.