Plus: “Major questions doctrine” in the states, Trump on the ballot, and more

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Last week a pregnant woman, Kate Cox, along with her husband and her doctor, filed a lawsuit in Texas seeking a court order authorizing an emergency abortion. It’s the first lawsuit of its kind since Roe v. Wade was overturned last year. Cox’s case illustrates an emerging set of battles to define the scope of legal exceptions to strict state abortion bans.

Cox, who is 20 weeks pregnant, recently learned that her fetus has a fatal genetic condition. Her doctors say she faces health and fertility risks if she continues her pregnancy, including potential uterine rupture. Cox argues that the medical exceptions to Texas’s laws banning abortion permit an abortion in her circumstances, or alternatively, that the bans violate the state constitution as applied to her emergency situation. Texas Attorney General Ken Paxton argues that Cox is ineligible for an abortion under Texas law.

After a trial court judge granted a temporary restraining order on Thursday permitting Cox’s doctor to perform an abortion, on Friday night the Texas Supreme Court halted

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the order, “without regard to the merits,” as it considers the case. The state high court hasn’t provided a timeline, and on Monday it was reported that Cox was leaving the state in order to receive care.

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the case. She explained that plaintiffs — including women who suffered harrowing results because they were denied abortions — argue that legal risks and ambiguities in the state’s abortion laws deter doctors from providing medically necessary abortions.

Paxton’s conduct in Cox’s case underscores the pressures on doctors in Texas. After the lower court issued a temporary restraining order and before the state high court issued its stay, Paxton sent a letter

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to hospital officials in Houston, where Cox’s doctor practices, threatening criminal and civil penalties despite the lower court order. Among other things, Paxton argued that the order did not bar actions brought by private citizens or the enforcement of pre-Roe abortion laws.

While it remains to be seen how the Texas Supreme Court will rule in the Zurawski and Cox suits, both are examples of an incrementalist approach to preserving or reestablishing abortion protections — an emerging trend in states with conservative courts unfriendly to broad reproductive rights. As University of California, Davis law professor Mary Ziegler has argued

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in State Court Report, “a right to avert death or serious health threats” has already emerged as a “narrower foundation for abortion rights” in several states.

Indeed, last month the Oklahoma Supreme Court temporarily halted

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three state laws on the basis of a “limited right” to abortion under the state constitution in life-threatening circumstances. In March, the North Dakota Supreme Court upheld

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a preliminary injunction blocking the state’s abortion ban based on a right to an abortion to preserve a pregnant person’s life or health. In Indiana, a lawsuit filed last month seeks to broaden the scope of exceptions to that state’s abortion ban after the state supreme court rejected

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a broader challenge while noting a right to abortion to protect life or health.

Blue states are also seeing new forms of abortion litigation. In New Mexico, abortion is legal under state law. But since the Supreme Court ruled in Dobbs v. Jackson Women’s Health Organization that there is no federal right to abortion, several New Mexico localities have passed ordinances establishing “sanctuaries for the unborn” that criminalize the procedure or restrict abortion clinics within their borders. On Wednesday, the New Mexico Supreme Court will hear a challenge by the state to these ordinances.

In an oral argument preview

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, Northeastern University law professor Martha F. Davis explains that the New Mexico case raises the question of whether state law preempts local ordinances on abortion. The case, however, comes “with a twist”: the ordinances incorporate provisions of the federal Comstock Act, a long unenforced 19th-century law that outlaws the mailing of abortion-related medications. But while the localities contend that the Comstock Act creates a federal law basis for their ordinances, Davis argues that ultimately the case comes down to the scope of state preemption, which is a state law question.

In the immediate aftermath of Dobbs, most state abortion litigation focused on state constitutional challenges to abortion bans. But the New Mexico and Texas cases illustrate the breadth of legal issues that emerge in the absence of a federal constitutional floor. As Davis notes, while Roe v. Wade “shifted the focus of both pro-choice and anti-abortion activists to federal law,” now “the war is again being waged in full force at every level of government,” with federal, state, and local law all in play — raising questions of preemption and supremacy.


The ‘Major Questions Doctrine’ in the States

Law professor Evan C. Zoldan discusses the application of the “major questions doctrine” to the states. Rather than “reflexively adopting the major questions doctrine in imitation of the U.S. Supreme Court,” he argues, state supreme courts “should evaluate the extent to which its institutional structures resemble the assumptions underlying the federal major questions doctrine.” Read more

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Applying Anti-Lockstepping Principles to State Contract Clauses

Forty state constitutions have contract clauses, but only one state has interpreted its contract clause differently than its federal counterpart, writes Anthony Sanders of the Institute for Justice. Sanders argues that this represents “a failure on the part of advocates and judges who believe in state constitutional independence.” Read more

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Efforts to Keep Trump Off the 2024 Ballot Move Through State Courts

Rex Bossert, the former editor in chief of the National Law Journal, reports on ongoing state cases aiming to disqualify Donald Trump from the 2024 presidential ballot. State court cases brought by voters in Colorado, Michigan, and Minnesota claim that Trump engaged in an insurrection on January 6, 2021, and is therefore disqualified from running for president under Section 3 of the 14th Amendment. Read more

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Lack of Transparency in New York Courts Undermines Democracy

A new report finds that more than 94 percent of New York criminal court written decisions are not publicly accessible. Oded Oren, executive director of Scrutinize, discusses the findings and their implications for accountability and rule of law. “The failure to make them publicly available significantly hampers New Yorkers’ ability to scrutinize and hold their judges accountable,” he argues. Read more

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Florida Marsy’s Law Does Not Bar Release of Police Names After Shootings

The Cato Institute’s Walter Olson writes about a recent Florida Supreme Court ruling that the state’s version of Marsy’s Law, a victim’s rights provision of the state constitution, does not bar disclosure of the identities of police officers involved in fatal shootings. The ruling “surprised and pleased many advocates for free speech and police accountability,” he says, but could have “far-ranging effect[s] that could conceivably backfire on advocates.” Read more

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Long Waits for Trial in Virgin Islands

Alexa Askari of Appellate Advocates draws attention to the long waits people charged with crimes in the U.S. Virgin Islands face before trial. “Some people accused of crimes end up spending more time behind bars awaiting trial than they would have if they had been convicted of the charges against them and sentenced,” she writes. Askari argues that the right to a speedy trial could be better protected under a Virgin Islands constitution, which the territory has yet to adopt. Read more

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Civil Claims for Child Sexual Abuse Outside Statute of Limitations

Legislation extending the time to file civil child sexual abuse claims is regularly challenged in state courts by institutions that exposed children to people the institutions knew or should have known were abusers, writes Emma Hetherington, law professor and director of the Wilbanks Child Endangerment and Sexual Exploitation Clinic at the the University of Georgia. Those institutions, including schools and churches, claim these laws offend state constitutional due process guarantees. But “the true injustice,” writes Hetherington, “would be to allow an arbitrarily determined timeline to block a survivor’s lawsuit.” Read more

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Movie Review: Freedom of the Press in the Muscogee Nation

Nancy Watzman, a State Court Report consultant, reviews the documentary Bad Press, which details the struggle for press freedom in the Muscogee Nation. “In October 2021, the Muscogee Nation made history by becoming the first tribe to vote to amend its constitution to include press protections,” she writes. Read more

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What Else We’re Reading

The State Democracy Research Initiative’s latest report, Direct Democracy in the States: A 50-State Survey of the Journey to the Ballot

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, analyzes the varying laws and procedures governing direct democracy across the country.


You May Have Missed

On November 28, the Texas Supreme Court heard argument in Harris County v. Texas, a case challenging a law that prohibits counties with more than 3.5 million residents from having an election administrator. The only county large enough to qualify is Harris County, home to Houston. The Brennan Center’s Jasleen Singh previewed

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the case.


Notable Cases

Police Benevolent Association v. City of New York

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, New York Court of Appeals (state high court)

Ruled that a law making it a misdemeanor for police officers to restrain arrestees in a manner that impedes their breathing does not conflict with other laws and is not impermissibly vague under New York’s constitution. // WFMZ

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In Re: Prosecuting Attorneys Qualifications Commission Rules and Code of Conduct

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, Georgia Supreme Court

Declined to approve proposed rules written by a new politically appointed body to investigate, discipline, and remove Georgia’s elected prosecutors. // Albany Herald

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Brown v. Secretary of State

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, New Hampshire Supreme Court

Held that claims of extreme partisan gerrymandering are not justiciable under the New Hampshire Constitution because they concern a political question. // New Hampshire Bulletin

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Cooper v. Berger

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, North Carolina Superior Court

Unanimously blocked state Senate Bill 749, which would transfer the Democratic governor’s authority to appoint members of the State Board of Elections to the legislature and replace current Democratic-majority state elections board with a new bipartisan body. The governor alleges that the law violates the Separation of Powers and Faithful Execution Clauses of the state constitution. // Carolina Journal

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You can find briefs and opinions from notable state constitutional lawsuits in our State Case Database.

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