With Roe v. Wade overturned, abortion rights advocates are already bringing the next legal battle to the states as many move to ban abortion access. Lawsuits challenging "trigger" laws aimed at making nearly all abortions have been quickly filed, with nine states having made most abortions illegal after the Supreme Court's decision on Friday, Axios reports. Without Roe's federal protections, abortion rights advocates cannot use the case as a precedent to challenge state bans. It is not clear whether state constitutions protect abortion access, a strategy being used in Utah and Louisiana lawsuits arguing that the "trigger" laws violate the states' constitutions. Another consideration is whether some sort of state court precedent protects the right to an abortion, which is the case in New Mexico, Florida, and Minnesota. Advocates are also looking to protect FDA-approved abortion pills, as several states have taken steps to ban the mailing of the pills. The legal question is whether states have the authority to ban FDA-approved drugs, which some experts say they lack.
As more states restrict access to abortion, people seeking care will be forced to travel hundreds of miles to another state that allows abortions. States have previously attempted and failed to pass laws in an effort to stop people from crossing state lines for an abortion. They could start trying to do so again. Justice Brett Kavanaugh said that on the question about whether a state can bar people from traveling to another state for an abortion, “the answer is no based on their constitutional right to interstate travel.” It has been almost 50 years since states were allowed to regulate abortion as early as in fertilization, meaning that it is impossible to know what legal arguments in support of abortion rights will be successful in court without Roe.
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