The Post-Dobbs Patchwork of Abortion Rights

When the U.S. Supreme Court overturned Roe v. Wade last summer, it didn’t say anything about people whose lives or health might be endangered absent an abortion. Some states have taken that as an invitation to put in place near-total bans, prompting challenges under state constitutions.

Last week, the Oklahoma Supreme Court ruled 5–4 that its state constitution provides a “limited right” to abortion once a doctor determines with “a reasonable degree of medical certainty or probability” that the pregnancy creates life-threatening circumstances. The court relied on Oklahoma’s due process clause as well as a provision recognizing an “inherent right” to life and liberty. The decision struck down a law that required doctors to wait for an imminent life-threatening medical emergency before performing an abortion. As one justice argued in a concurring opinion, just as you don’t need to wait for an appendix to burst before you can operate, a doctor shouldn’t have to wait “until their patient has a seizure, a stroke, experiences multiple organ failure, goes septic, or goes into a coma because of the fear of criminal prosecution.”

Oklahoma’s ruling comes on the heels of a unanimous ruling by the North Dakota Supreme Court earlier this month recognizing a fundamental right to an abortion when needed to preserve a pregnant person’s life or health. The North Dakota court based its ruling on a state constitutional provision that identifies “enjoying and defending life and liberty” and “pursuing and obtaining safety” as “inalienable rights.” One concurrence likened abortion under these circumstances to the right to self-defense. Another argued that the drafters of the North Dakota Constitution understood that courts should interpret fundamental rights broadly.

Ultimately, both rulings were narrow but significant, targeting some of the most extreme abortion laws in the country. Each relied heavily on a long history of laws in their state providing medical exceptions to abortion bans. Importantly, neither court resolved whether its state constitution also protects abortion rights in other circumstances, leaving those questions for another day — and likely future litigation.

At the same time, while the Oklahoma and North Dakota decisions bear some similarities, they’re also quite different in scope and practical impact. To begin with, the North Dakota court recognized a broader constitutional right, protecting not just a woman’s life but also her health: to “prevent severe, life altering damage.”

Even more significantly, the North Dakota court upheld a preliminary injunction blocking the state’s abortion ban from being enforced, which means that abortion is currently legal in the state up to 20 weeks post-fertilization. By contrast, while the Oklahoma court struck down one law, it allowed another near-total ban, dating back to 1910, to stay on the books because it has an exception to preserve a woman’s life (not limited to medical emergencies). That means abortion will remain illegal for all but a tiny fraction of Oklahomans.

These rulings follow decisions earlier this year in South Carolina, where the high court ruled that the state constitution protects the right to abortion, and Idaho, where the court found no state constitutional right. Oklahoma and North Dakota both sit somewhere in the middle, recognizing a limited set of state constitutional abortion protections while declining, at least for now, to address whether their constitutions protect abortion rights more broadly. With more than two dozen state cases currently pending across the country, the national patchwork of post-Dobbs abortion rights is just beginning to take shape.

Alicia Bannon is editor in chief for State Court Report. She is also director of the Judiciary Program at the Brennan Center for Justice.