How abortion is faring in the states post-Dobbs and post-election.
(40 Days for Life) As famously and repeatedly stated, the Trump administration holds that abortion should be left up to the states, and it is unlikely that the feds will get involved over the next four years.
That is basically the position that the U.S. Supreme Court took in the Dobbs decision that overturned Roe v. Wade.
The U.S. Constitution does not mention abortion, and the 10th Amendment says:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
So what are the states doing now? They are leaving it up to the people.
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In 2024, 10 states had proposed constitutional amendments on the ballot to amend their state constitutions regarding abortion rights. Seven passed: Arizona, Colorado, Maryland, Missouri, Montana, Nebraska, and New York. Three failed: Florida, Nebraska, and South Dakota.
PASSED:
Arizona Proposition 139: Fundamental right to abortion, and the state may not interfere before viability.
Colorado Amendment 79: Absolute right to abortion using public funds.
Maryland Question 1: Right to reproductive freedom: “the ability to make and effectuate decisions to prevent, continue, or end one’s own pregnancy.”
Missouri Amendment 3: Right to reproductive freedom, including abortion and all matters relating to reproductive health care.
Montana CI-128: Right to make and carry out decisions about one’s own pregnancy, including the right to abortion, allowing the state to regulate abortion after viability, except when “medically indicated to protect the life or health of the pregnant patient.”
Nebraska Initiative 434: Prohibits abortion after the first trimester unless in cases of medical emergency or pregnancy resulting from sexual assault or incest.
New York Proposal 1: People cannot be denied rights based on their “ethnicity, national origin, age, and disability” or “sex, including sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcomes, and reproductive healthcare and autonomy.”
FAILED:
Florida Amendment 4: Would have added: “No law shall prohibit, penalize, delay, or restrict abortion before viability or when necessary to protect the patient’s health, as determined by the patient’s healthcare provider.”
Nebraska Initiative 439: Would have established a right to abortion until viability.
South Dakota Constitutional Amendment G: Would have provided a right to abortion with no state regulation before the end of the first trimester; second trimester regulation only if reasonably related to the physical health of the pregnant woman; and third trimester regulation only when abortion was necessary, in the medical judgment of the woman’s physician, to preserve the life and health of the pregnant woman.
In addition, Nevada passed its first step to enshrine abortion in its constitution (it must be on the ballot in 2026 as well):
Nevada Question 6: Right to an abortion and for the state to regulate abortion after viability except where medically indicated to “protect the life or health of the pregnant patient.”
40 Days for Life’s Institute of Law & Justice (ILJ) has a handy reference guide to the history and outcomes: 40daysforlife.com/constitutionalhistory
Further, the ILJ is actively working with multiple states to assist in repealing or limiting the pro-abortion amendments that passed.
Other states have previously considered an array of abortion amendments:
Alabama: Pro-life constitutional amendment passed in November 2018.
Arkansas: Pro-abortion constitutional amendment failed to make the ballot in 2024.
California: Pro-abortion constitutional amendment passed in November 2022.
Hawaii: Pro-abortion amendment failed to make the ballot in 2024.
Iowa: Pro-life constitutional amendment failed to make the ballot in 2024.
Kansas: Pro-life constitutional amendment failed in 2022.
Kentucky: Pro-life constitutional amendment failed in 2022.
Louisiana: Pro-life constitutional amendment passed in 2020.
Minnesota: Pro-abortion legislative initiative failed in May 2024.
New Hampshire: Pro-abortion constitutional amendment failed to make it to the ballot in 2024.
Oregon: Pro-abortion constitutional amendment failed to make the ballot in 2024.
Pennsylvania: Pro-life constitutional amendment failed to make the ballot in 2024.
South Dakota: Pro-life constitutional amendment failed in 2024.
Tennessee: Pro-life constitutional amendment passed in 2014.
Vermont: Pro-abortion constitutional amendment passed in 2022.
Virginia: Pro-abortion constitutional amendment failed to make the ballot in 2024.
West Virginia: Pro-life constitutional amendment passed in November 2018.
Wisconsin: Pro-abortion constitutional amendment failed to make the ballot in 2024.
Other states’ supreme courts have declared that their state constitutions already protect abortion:
Alaska: The Alaska Supreme Court interpreted the privacy provision in the state’s constitution to protect a pregnant person’s right to make reproductive decisions, including abortion, and found that limits on public funding for abortion were unconstitutional.
Illinois: The Illinois Supreme Court recognized the right to abortion under the state’s constitution: Every individual who becomes pregnant has a fundamental right to continue the pregnancy and give birth or to have an abortion, and to make autonomous decisions about how to exercise that right.
Massachusetts: The Massachusetts Supreme Court recognized the right to abortion under the state’s constitution, allowing the state to pass legislation allowing abortion.
Minnesota: The Minnesota Supreme Court found that the Minnesota Constitution guarantees the right of every Minnesotan to terminate a pregnancy.
New Mexico: On January 9, 2025, the New Mexico Supreme Court struck down abortion restrictions (regarding the abortion pill) but declined to address whether the law violated the state’s constitutional protections.
North Dakota: In 2024, a trial court struck down North Dakota’s pro-life laws. The case is on appeal to the state supreme court.
Oklahoma: The Oklahoma Supreme Court has expanded constitutional rights to include limited rights to abortion.
So now your prayers and peaceful vigils are more important than ever to end abortion where you live and in the United States.
Pray and fast to end abortion.
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Editor's note: Matt Britton is General Counsel for 40 Days for Life. he is a four-time elected prosecutor and county attorney, and he has represented countless not-for-profits and for-profit companies in America and abroad. This article was published in the Spring 2025 edition of 40 Days for Life’s Day 41 Magazine and is reprinted with permission. To receive the free quarterly magazine, visit 40daysforlife.com/en/resources-magazine.aspx
