Last month, Missourians voted to add the right to abortion until viability into their state constitution—making their state one of ten to enshrine abortion rights since the Supreme Court overturned Roe v. Wade.

But simply having the constitutional right to abortion does not alone change anything on the ground: The courts must enforce this right by affirming that anti-abortion laws violate states’ newly amended constitutions. A ruling this week by a Missouri judge shows just how fraught it is to depend on the courts for abortion access—even after the people, by popular vote, demand it.

Within 24 hours of the November election where Missouri voters passed the state’s abortion-rights amendment, Planned Parenthood sued to ask the courts to enforce this change. On Friday, a state judge weighed in for the first time: She temporarily blocked the state’s near-total abortion ban. But she left in place several anti-abortion laws that will continue to prevent abortion providers from serving patients.

In a partial preliminary injunction issued on Friday, Jackson County Judge Jerri Zhang temporarily allowed the state’s licensure law to remain in place, giving the Missouri Department of Health and Senior Services the power to withhold licenses from abortion clinics if their hallways, rooms, and doors don’t meet the architectural requirements of ambulatory surgical centers. The hallway width requirement is a classic example of what’s known as a TRAP law, standing for “targeted regulation of abortion providers.” Back when the United States still had a national right to abortion, passing TRAP laws that were near-impossible to comply with was the strategy of choice for the anti-abortion movement in its quest to shut down clinics. Missouri’s TRAP laws were so effective at achieving this goal that in the years before Roe was overturned, just one abortion clinic in the state was still in operation—providing only around 100 abortions per year at a Planned Parenthood facility in St. Louis.

“While Planned Parenthood stands ready to start providing abortions in Missouri again as soon as the Court permits, the abortion restrictions remaining in effect—including Missouri’s medically unnecessary and discriminatory clinic licensing requirement—make this impossible,” Planned Parenthood Great Plains said in a statement after Zhang’s ruling. “The vast majority of Planned Parenthood health centers cannot comply with the medically irrelevant size requirements for hallways, rooms, and doors.”

In her order, Zhang said she was allowing the licensure law to remain in place while the lawsuit continues because it involves rules for facilities rather than “the right of individuals seeking care”—without addressing the reality that the facility rules were designed to undercut the right to abortion. Either Zhang has been duped, or she’s playing along: “The Court finds there may be a compelling governmental interest in licensing abortion facilities in this manner,” she wrote in her order.

Now, no Missouri abortion clinics have a license. To get one, they’ll have to apply to some of the same state officials who fought this year’s abortion rights ballot initiative tooth and nail, earning rebukes from the court system. Their track record runs deep: Back in 2019, the state health department did its utmost to close the St. Louis Planned Parenthood clinic, declining to renew its license and imposing shifting requirements that providers likened to harassment, my former colleague Marisa Endicott reported.

Ultimately, the clinic was only able to keep its doors open thanks to court orders and an administrative hearing officer. “The licensure requirement also leaves Planned Parenthood facilities at the whim of anti-abortion officials in Missouri, who can continue to weaponize the licensure process to limit abortion access, as they have done for decades,” Planned Parenthood Great Plains said in its Friday statement.

There is a silver lining to the ruling: Doctors in hospitals who need to perform emergency abortions will no longer be operating under the threat of state punishment.

“Hospital-based providers across the state are able to provide more care today than they could yesterday now that the fear of criminal prosecution has been removed,” said ACLU of Missouri litigation director Gillian Wilcox in a statement on Saturday. Zhang also granted the preliminary injunction blocking other TRAP laws: a 72-hour waiting period for abortions, a requirement that patients take abortion medication in the presence of a doctor, and a rule stating that abortion providers have admitting privileges at a hospital within 15 minutes’ drive of a clinic, among others.

There is also another threat coming down the line. While the legal battle continues over which Missouri anti-abortion laws can coexist with the new abortion-rights amendment, state legislators are weighing their own ballot initiatives for the next election cycle. That includes a proposal to ask voters to re-impose a blanket abortion ban, and another that would shift “fetal viability,” generally understood as the time when a fetus could survive outside the pregnant person’s body, from around 24 weeks gestation to the 6-week mark of pregnancy—when embryos measure around the size of a pea and have almost no organs.

The Supreme Court agreed last week to hear a case that could pave the way for states to kick Planned Parenthood clinics and affiliated doctors out of their Medicaid programs. The case threatens the ability of the nation’s largest family planning organization to provide their low-income patients with birth control, cancer screenings, and STI testing and treatment—services that have nothing to do with abortion.

Back in June, the Alliance Defending Freedom (ADF), the religious-right legal group behind the fall of Roe v. Wade, legal attacks on the abortion pill, and some of the most important anti-LGBTQ laws and Supreme Court cases of recent memory, filed the request that the nine justices hear this case.

They asked on behalf of their client, the South Carolina health department. That is part of a pattern: ADF has increasingly represented state governments in efforts to defend abortion bans and anti-trans laws. My colleague Pema Levy reported earlier this year that this work has raised ethical questions about how a religious organization that brings in over $100 million annually from mostly undisclosed donors can represent the public in court while also advancing a religious agenda.

The case, known as Kerr v. Planned Parenthood South Atlantic, dates back to the summer of 2018, when South Carolina Republican Gov. Henry McMaster ordered his state’s health department to declare any doctors or clinics who provided abortion “unqualified” to offer other family planning services. McMaster’s order didn’t have anything to do with the doctors’ resumes or the quality of their healthcare. Instead it was calculated to punish Planned Parenthood financially by making it ineligible to receive Medicaid reimbursements for the non-abortion services that, contrary to popular misconception, make up the vast majority of its work. Medicaid, which provides health coverage for people who are low-income, already does not cover abortion—a prohibition that has been federal law for decades. But “the payment of taxpayer funds to abortion clinics, for any purpose, results in the subsidy of abortion and the denial of the right to life,” McMaster reasoned in his executive order.

Politically, the executive order was a way for McMaster to “take an anti-abortion stand,” per the resulting headlines. But practically, it hurt South Carolinian women on Medicaid who relied on their local Planned Parenthood clinic for everyday reproductive healthcare.

South Carolina wasn’t the only state to attack Planned Parenthood in this way. Arizona, Arkansas, Indiana, Kansas, and Texas all tried to impose similar restrictions, according to Jane Perkins, litigation director for the National Health Law Program. Texas was one of the few to succeed, and as I wrote in October, the attacks on Planned Parenthood there forced many reproductive health clinics to close, cut hours, charge patients new fees, or ration IUDs and birth control implants. Ultimately, they could only serve half as many patients. The teen birth rate rose an estimated 3.4 percent. 

In response to the restrictions, Planned Parenthood patients and state affiliates have filed a series of lawsuits, arguing that they violate a federal Medicaid provision dating back to 1967 that guarantees patients the “free choice” to see any “qualified” provider who agrees to take Medicaid. The whole point of that provision was to stop states from restricting patient options, which Congress worried would be a step toward socialized medicine.

Federal appeals courts have mostly agreed with this argument. At least four of them have decided that states that exclude Planned Parenthood from Medicaid are violating the “free choice” provision, and that abortion clinics and their affiliates “are qualified providers, and what the state’s doing here is essentially a policy or politically motivated activity to ban Planned Parenthood,” Perkins says. But a couple of courts, including the far-right Fifth Circuit, have thrown out the lawsuits on technical grounds, ruling that states have the power to decide if providers are “qualified,” and that individuals can’t sue over their decisions.

That’s the question the Supreme Court has now agreed to review in Kerr. If the court sides with South Carolina, “it would certainly pull the door open” for more states to kick Planned Parenthood out of their Medicaid programs, Perkins says. Such a ruling could have consequences beyond reproductive healthcare—giving states greater power to pick and choose which doctors can see Medicaid patients.

It would also be in line with the conservative justices’ recent tendency to declare that courts should defer to state decision-making on whether to restrict healthcare for women or trans people. That’s essentially what happened in Dobbs v. Jackson Women’s Health Organization, which allowed states to ban abortion. The same outcome appears likely in a current case, United States v. Skrmetti, where the justices seem poised to green-light state bans on puberty blockers and hormone therapy for trans minors. 

Perkins is worried about Kerr. “I sort of went through a hair-stand-on-end,” she says. Just two years ago, the Supreme Court took a case on a similar question, and reaffirmed the framework courts use to decide when individuals can sue over Medicaid provisions. That case is similar to this one, though it involved nursing homes rather than abortion providers.  “To come along not two years later and take a case on…enforcement of Medicaid provisions, it’s startling,” she says. “But I understand that this is a politically charged subject matter.”

Another factor that makes it different this time: It’s the Alliance Defending Freedom asking. “This is really different,” Perkins says. “This is a nonprofit organization that, my understanding is, has a religious mission. So here’s the question: What about the establishment clause [requiring separation of church and state] of the Constitution?”

After the Supreme Court ruled nine years ago that the Constitution protected same-sex marriage, far-right groups, in need of a new rallying cry, turned their attention to transgender people—in particular, kids. That strategic shift has met with devastating success: In recent years, 24 states have made it illegal for doctors to provide trans youth with puberty blockers and hormone therapy—treatments supported by virtually all leading US medical organizations—for the purpose of alleviating gender dysphoria. 

Although anti-trans groups frame their campaign as a “Promise to America’s Children,” their ultimate goal has long been apparent: ending gender transitions for all people, including adults. As Terry Schilling, president of the American Principles Project, admitted last year, he and his allies were starting with children because that’s “where the consensus is.”

That agenda was front and center Wednesday morning when the Supreme Court heard arguments in United States v. Skrmetti, a landmark case that could prove to be as consequential for trans rights as the Dobbs decision has been for abortion. The case focuses on Tennessee’s ban on gender-affirming treatments for minors, passed last year. But throughout hearing, which lasted two and a half hours, lawyers repeatedly brought up the ramifications for adults as well.

A decision in Tennessee’s favor would pave the way for courts to uphold broader bans on gender-affirming care in the future. “There really is much more at stake,” says Katie Eyer, who teaches anti-discrimination law at Rutgers University, “including potentially the ability of people of any age to effectively get [gender] care in the United States.”

As I have reported, Skrmetti centers on the question of whether bans on gender-affirming care are a form of sex discrimination under the 14th Amendment, as the Biden administration, transgender kids, and their families have argued. If so, judges must closely examine lawmakers’ rationale and evidence for passing them (known as “heightened scrutiny”). If not, courts should rubber-stamp such laws when challenged (the so-called “rational-basis” standard).

Tennessee, of course, wants the rubber stamp. State Solicitor General J. Matthew Rice repeatedly argued on Wednesday that the 2023 ban does not treat people differently based on their sex, and thus does not merit closer scrutiny.

Under questioning from Justice Sonia Sotomayor, Rice said that if the court rules Tennessee’s current ban doesn’t require heightened scrutiny, a law banning gender-affirming care for adults wouldn’t either. “Your Honor, we think that if we’re assuming a similarly worded statute, that there still would not be a sex- or a transgender-based classification.”

“You’re licensing states to deprive grown adults of the choice of which sex to adopt?” Sotomayor probed.

“Your honor, I don’t think that’s a fair—” Rice began.

“That’s what you’re telling me,” Sotomayor cut him off.

The debate over adult bans isn’t hypothetical. Florida is currently enforcing a ban on gender-affirming care for minors that also significantly restricts adult care—preventing nurse practitioners from prescribing hormone therapy, for example, and requiring appointments to be in person rather than via telehealth. Officials in Ohio and Missouri have tried to use regulatory powers to impose rules that limit adult transition care. Other states have targeted insurance coverage. South Carolina, for instance, bans the use of Medicaid and other public funds for gender-affirming care, regardless of the patient’s age.

“When you’re 1 percent of the population or less, [it’s] very hard to see how the democratic process is going to protect you. Blacks were a much larger part of the population, and it didn’t protect them. It didn’t protect women for whole centuries.”

Throughout the hearing, some conservative justices seemed to signal a desire to leave the legality of gender-affirming treatments for minors to states to decide—as the court purported to do when it overturned Roe v. Wade in 2022—citing the evolving nature of the scientific evidence. “The Constitution leaves that question to the people’s representatives, rather than to nine people, none of whom is a doctor,” Chief Justice John Roberts said. Leaving the question to legislatures, rather than courts, would mean ruling that such laws get a lower level of scrutiny from judges.

In his exchange with Sotomayor, Rice seemed to argue that “democratic process” was enough to stop laws that are rooted in prejudice. “To the extent that a law dealing with adults would pass rational-basis review, that just means it’s left to the democratic process, and that democracy is the best check on potentially misguided laws,” he said.

Sotomayor, whose formidable presence anchors the court’s progressive wing, wasn’t buying it. “When you’re 1 percent of the population or less, [it’s] very hard to see how the democratic process is going to protect you,” she retorted. “Blacks were a much larger part of the population, and it didn’t protect them. It didn’t protect women for whole centuries.”

With the GOP set to take control of the White House and Congress in January, the “democratic process” could soon produce a nationwide ban on gender-affirming care for minors. If the Supreme Court decides to hold the Tennessee ban to a low bar, rather than requiring it to meet the higher level of scrutiny, its decision “would equally apply to a nationwide ban,” US Solicitor General Elizabeth Prelogar, representing the Biden administration, pointed out during the hearing.

At a rally outside the Supreme Court, Georgia Republican Rep. Marjorie Taylor Greene announced that she was reintroducing just such a bill, claiming the support of incoming President Donald Trump, Vice President JD Vance, and Speaker of the House Mike Johnson. “Those that worship evil are abusing our children, brainwashing our children to believe the lie that comes directly from Satan,” Greene declared.

To Ari, a 21-year-old trans college student from Tennessee who attended a rally in support of trans rights outside the courthouse on Wednesday, the question of whether the courts will protect transgender people from legislative attacks is a matter of life or death. Ari had joined the demonstration, they said, for the sake of the trans kids they’ve known who never made it to adulthood—including a high school friend who committed suicide.

“I think legislation like this only leads to more dead kids,” Ari said. “Tennessee, being one of the most poorly educated, most under-resourced states in the country, is ignoring its own problems in order to terrorize children and families who just want to support their kids.” 

After the Supreme Court ruled nine years ago that the Constitution protected same-sex marriage, far-right groups, in need of a new rallying cry, turned their attention to transgender people—in particular, kids. That strategic shift has met with devastating success: In recent years, 24 states have made it illegal for doctors to provide trans youth with puberty blockers and hormone therapy—treatments supported by virtually all leading US medical organizations—for the purpose of alleviating gender dysphoria. 

Although anti-trans groups frame their campaign as a “Promise to America’s Children,” their ultimate goal has long been apparent: ending gender transitions for all people, including adults. As Terry Schilling, president of the American Principles Project, admitted last year, he and his allies were starting with children because that’s “where the consensus is.”

That agenda was front and center Wednesday morning when the Supreme Court heard arguments in United States v. Skrmetti, a landmark case that could prove to be as consequential for trans rights as the Dobbs decision has been for abortion. The case focuses on Tennessee’s ban on gender-affirming treatments for minors, passed last year. But throughout hearing, which lasted two and a half hours, lawyers repeatedly brought up the ramifications for adults as well.

A decision in Tennessee’s favor would pave the way for courts to uphold broader bans on gender-affirming care in the future. “There really is much more at stake,” says Katie Eyer, who teaches anti-discrimination law at Rutgers University, “including potentially the ability of people of any age to effectively get [gender] care in the United States.”

As I have reported, Skrmetti centers on the question of whether bans on gender-affirming care are a form of sex discrimination under the 14th Amendment, as the Biden administration, transgender kids, and their families have argued. If so, judges must closely examine lawmakers’ rationale and evidence for passing them (known as “heightened scrutiny”). If not, courts should rubber-stamp such laws when challenged (the so-called “rational-basis” standard).

Tennessee, of course, wants the rubber stamp. State Solicitor General J. Matthew Rice repeatedly argued on Wednesday that the 2023 ban does not treat people differently based on their sex, and thus does not merit closer scrutiny.

Under questioning from Justice Sonia Sotomayor, Rice said that if the court rules Tennessee’s current ban doesn’t require heightened scrutiny, a law banning gender-affirming care for adults wouldn’t either. “Your Honor, we think that if we’re assuming a similarly worded statute, that there still would not be a sex- or a transgender-based classification.”

“You’re licensing states to deprive grown adults of the choice of which sex to adopt?” Sotomayor probed.

“Your honor, I don’t think that’s a fair—” Rice began.

“That’s what you’re telling me,” Sotomayor cut him off.

The debate over adult bans isn’t hypothetical. Florida is currently enforcing a ban on gender-affirming care for minors that also significantly restricts adult care—preventing nurse practitioners from prescribing hormone therapy, for example, and requiring appointments to be in person rather than via telehealth. Officials in Ohio and Missouri have tried to use regulatory powers to impose rules that limit adult transition care. Other states have targeted insurance coverage. South Carolina, for instance, bans the use of Medicaid and other public funds for gender-affirming care, regardless of the patient’s age.

“When you’re 1 percent of the population or less, [it’s] very hard to see how the democratic process is going to protect you. Blacks were a much larger part of the population, and it didn’t protect them. It didn’t protect women for whole centuries.”

Throughout the hearing, some conservative justices seemed to signal a desire to leave the legality of gender-affirming treatments for minors to states to decide—as the court purported to do when it overturned Roe v. Wade in 2022—citing the evolving nature of the scientific evidence. “The Constitution leaves that question to the people’s representatives, rather than to nine people, none of whom is a doctor,” Chief Justice John Roberts said. Leaving the question to legislatures, rather than courts, would mean ruling that such laws get a lower level of scrutiny from judges.

In his exchange with Sotomayor, Rice seemed to argue that “democratic process” was enough to stop laws that are rooted in prejudice. “To the extent that a law dealing with adults would pass rational-basis review, that just means it’s left to the democratic process, and that democracy is the best check on potentially misguided laws,” he said.

Sotomayor, whose formidable presence anchors the court’s progressive wing, wasn’t buying it. “When you’re 1 percent of the population or less, [it’s] very hard to see how the democratic process is going to protect you,” she retorted. “Blacks were a much larger part of the population, and it didn’t protect them. It didn’t protect women for whole centuries.”

With the GOP set to take control of the White House and Congress in January, the “democratic process” could soon produce a nationwide ban on gender-affirming care for minors. If the Supreme Court decides to hold the Tennessee ban to a low bar, rather than requiring it to meet the higher level of scrutiny, its decision “would equally apply to a nationwide ban,” US Solicitor General Elizabeth Prelogar, representing the Biden administration, pointed out during the hearing.

At a rally outside the Supreme Court, Georgia Republican Rep. Marjorie Taylor Greene announced that she was reintroducing just such a bill, claiming the support of incoming President Donald Trump, Vice President JD Vance, and Speaker of the House Mike Johnson. “Those that worship evil are abusing our children, brainwashing our children to believe the lie that comes directly from Satan,” Greene declared.

To Ari, a 21-year-old trans college student from Tennessee who attended a rally in support of trans rights outside the courthouse on Wednesday, the question of whether the courts will protect transgender people from legislative attacks is a matter of life or death. Ari had joined the demonstration, they said, for the sake of the trans kids they’ve known who never made it to adulthood—including a high school friend who committed suicide.

“I think legislation like this only leads to more dead kids,” Ari said. “Tennessee, being one of the most poorly educated, most under-resourced states in the country, is ignoring its own problems in order to terrorize children and families who just want to support their kids.” 

In 2016, when Tennessee OBGYN Susan Lacy learned she would be providing gender-affirming care to transgender patients in her new job at a reproductive health clinic in Memphis, she felt out of her depth. But it didn’t take long to realize that hormone treatments for trans folks weren’t so different from those she’d been providing for years to cisgender patients. She already knew how to use pills, patches, gels, and injections, with their different formulations and side effects, to reduce menopausal night sweats, hot flashes, and brain fog. Patients who took hormones for gender dysphoria told her they felt a similar sense of relief. “It didn’t matter about socioeconomics, age, race, feminizing or masculinizing hormone therapy,” Lacy says. Often the first reaction was, “I finally feel like I can think straight.”

Now a gynecologist in solo practice, Lacy has more than 300 adult trans patients. At one time, her patient list also included trans teenagers with the consent of their parents. But last year, Tennessee prohibited the prescription of certain medications to minors to treat the distress many trans people feel when their bodies do not align with their gender identity. Under the law, cisgender kids could keep receiving the meds: puberty blockers for those who start puberty too early, for instance, or testosterone or estrogen for teens who enter puberty late. But if the purpose was to treat gender dysphoria, those same medications were forbidden.

On Wednesday, the US Supreme Court will hear oral arguments in a landmark lawsuit challenging the Tennessee ban, brought by the Biden administration’s Department of Justice, Lacy, and three trans minors and their families. United States v. Skrmetti is one of the biggest cases of the term and the first major trans-rights case to be heard by the court since far-right lawmakers and policy groups launched a coordinated campaign inundating statehouses with hundreds of anti-trans bills a few years ago. Legal experts say the Skrmetti case could shape the landscape for trans rights for years to come, while testing how far the Court’s conservative supermajority is willing to extend its 2022 decision allowing states to ban abortion: Will the justices give states free rein to outlaw yet another form of healthcare?

“Before treatment, I hid,” one plaintiff, 15-year-old Ryan Roe, wrote in a declaration asking a federal judge to put the ban on hold. But with hormone therapy, “I am raising my hand in class again and participating in all aspects of school. I feel stronger—physically, mentally and emotionally. I feel so happy with myself and that makes me feel like I can do and be more.” 

That changed, he added, when Tennessee lawmakers began debating the gender-affirming care ban. “Hopelessness creeped in again.”

The Skrmetti arguments are happening at a time of intense fear and vulnerability for the trans community. President-elect Donald Trump and his allies bet on transphobia to take back the White House and Congress, pouring millions into anti-trans campaign ads and vowing a broad crackdown on what Trump refers to as “left-wing gender insanity” (though the extent to which trans issues swayed the electorate remains unclear). Supported by groups like the Heritage Foundation, the think tank behind Project 2025, and Alliance Defending Freedom, a religious-right legal behemoth, states have made particular targets of trans young people, restricting their use of school bathrooms and locker rooms, their participation in sports, and discussion of LGBTQ-related topics in classrooms and libraries. 

They have also targeted medical care, with nearly half of states outlawing gender-affirming treatments for people under 18, cutting off access for an estimated 118,300 trans teens. The bans have been enacted over the objections of virtually all leading US medical associations, which consider such treatments clinically appropriate. One study of almost 12,000 trans teenagers found that those who received hormone therapy reported lower rates of depression and suicidality compared to those who wanted but didn’t receive the treatment. When Tennessee’s ban took effect, Lacy says, “the biggest sense from the patients was despair—anger and despair.” Parents, meanwhile, were frustrated: “Why can I not make this decision for my child?”

“It is painful to even think about having to go back to the place I was in before I was able to come out and access the care that my doctors have prescribed for me,” one of the plaintiffs, a 15-year-old trans girl known as L.W., wrote in a declaration. She struggled to focus and connect with friends, and got sick when she had to use the boy’s bathroom at school.

“It is painful to even think about having to go back to the place I was in before I was able to come out and access the care that my doctors have prescribed for me.”

L.W.’s mother, Samantha Williams, wrote in a declaration of her own that starting gender-affirming medical care had improved her daughter’s physical and mental health: “She has more confidence, she is fully present, and not only does she accept hugs, but she also gives hugs.” The Tennessee ban prompted Williams and her husband to consider moving their family away from relatives, work, and the community where their two children had grown up. “I do not want to see her go back to the dark place she was in prior to coming out and receiving the life-saving treatment she needs,” Williams wrote.

LGBTQ-rights organizations have filed lawsuits over almost every gender-affirming care ban, with Skrmetti the first case to reach the Supreme Court. Now, justices are being asked to set the standard under which lower-court judges must evaluate whether laws like Tennessee’s violate the Equal Protection Clause of the US Constitution. The justices’ eventual decision could have implications not just for gender-affirming care bans, but for future anti-trans laws in statehouses and Congress. “It will tell the next administration whether it’s open season to continue with these attacks on trans young folks and transgender people more broadly,” says Jenny Pizer, chief legal officer of the LGBTQ civil rights organization Lambda Legal, “or whether there’s going to be some limits.”

There’s a potential wild card in the mix: When Trump takes office, his Department of Justice is likely to try to reverse the Biden administration’s position and withdraw the case. Pizer says that if that happens, there’s no telling how the Supreme Court would respond. They could agree to kill the case, deny the request, or push a decision off till next term. Or, they could let the federal government withdraw but allow the case to proceed, with only the Tennessee families and Lacy as plaintiffs.

Legally speaking, the main issue in the case boils down to the question of whether bans on gender-affirming care are a form of sex-based discrimination. If they are, then states going forward will have to prove, when challenged, that the bans are “substantially related” to an “important state interest.” That’s a fairly high bar—one that would require judges to weigh the medical and scientific evidence around the prohibited treatments. When trial courts have looked at that evidence in the past, they’ve overturned the bans, siding with the trans youth and their families.

In fact, that’s what happened in the Middle District of Tennessee federal court, where the Skrmetti case started. “The Court acknowledges that the state feels strongly that the medical procedures banned by [the law] are harmful to minors,” District Judge Eli Richardson wrote last year in an order temporarily blocking the law. “The medical evidence on the record, however, indicates otherwise.”

Richardson’s decision wasn’t controversial at the time—every federal judge, including Trump appointees, who had looked at gender-affirming care bans up until that point had blocked them. But the Sixth Circuit Court of Appeals, which oversees Tennessee, went the other way, ruling 2 to 1 that the law did not discriminate based on sex, and thus it didn’t have to meet the higher level of scrutiny. (The judges also shot down the plaintiffs’ two other arguments—that anti-trans discrimination is unique and merits a closer look by the courts, and that the ban violates parents’ right to direct their children’s medical care.) In the 14 months since that decision, more courts have upheld gender-affirming care bans for minors, including in Ohio, Oklahoma, and Missouri.

If the Supreme Court agrees with the Sixth Circuit’s approach, courts going forward will apply the lowest level of scrutiny to gender-affirming care bans. The result, says Jess Braverman, legal director at the advocacy group Gender Justice, would be “like a rubber stamp.”

Casual Supreme Court observers would be forgiven for thinking that the question of whether anti-trans discrimination counts as sex discrimination has already been settled. In his majority opinion in the court’s last major trans-rights case, Bostock v. Clayton County in 2020, Justice Neil Gorsuch stated, “It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” But since that ruling, which involved a funeral home employee who was fired after transitioning, conservative lawyers and public officials have been trying to limit Bostock from being applied to situations beyond employment. The result has been an escalation of the legal battles over federal protections for trans people: Do existing sex-discrimination laws shield them at school? What about at the doctor’s office?

In arguing that Tennessee’s ban discriminates based on sex, DOJ lawyers point to the text of the law, which explicitly says that the state wants to “encourage[e] minors to appreciate their sex” and forbid treatments that might “encourage minors to become disdainful of their sex.” The “purpose is to force boys and girls to look and live like boys and girls,” appellate judge Helene White summarized in a dissent from the Sixth Circuit ruling. Under the law, kids can receive puberty blockers and hormone therapy if the medications are provided to help them conform their bodies to their sex assigned at birth, but not if the treatments are provided to help them not conform. “There is no way to determine whether these treatments must be withheld from any particular minor without considering [the minor’s] sex,’” DOJ lawyers argue in their Supreme Court briefing.

Tennessee Attorney General Jonathan Skrmetti contends that the ban does not discriminate based on sex. Instead, he says, the law is a health care regulation that applies to everyone. “The law draws a line between minors seeking drugs for gender transition and minors seeking drugs for other medical purposes,” he argues in his brief. “Boys and girls fall on both sides of that line.”

In making that argument, Skrmetti repeatedly cited Dobbs v. Jackson Women’s Health Organization, the 2022 case that overturned the federal right to abortion. As Susan Rinkunas has noted over at The New Republic, the Tennessee AG is picking up on an aside by Justice Samuel Alito in the Dobbs ruling that Mississippi’s abortion ban didn’t violate the Equal Protection Clause because, according to the justice, the ban didn’t discriminate based on sex. To back up this assertion, Alito cited a Supreme Court ruling from 1974, Geduldig v. Aiello, which held that an insurance policy specifically excluding pregnancy-related coverage was not a form of sex discrimination, and applied to everyone. That ruling and a related decision were deemed so outrageous at the time that Congress swiftly enacted the Pregnancy Discrimination Act to override them.

Now, there is a risk that when the Supreme Court decides Skrmetti, it will apply the same reasoning from Geduldig and Alito’s sidenote in Dobbs: Even when laws restrict medical treatments that only matter for certain groups—like pregnant women, or trans people—those laws aren’t inherently discriminatory, because not every member of that group requires that type of care. “It’s kind of like our Supreme Court is a bunch of freshman philosophy students,” Braverman says. “It’s like they’re all asking, ‘Do we see the same color when we see yellow?’ Except lives are at stake.”

“It’s kind of like our Supreme Court is a bunch of freshman philosophy students. It’s like they’re all asking, ‘Do we see the same color when we see yellow?’ Except lives are at stake.”

To Braverman, it’s no surprise that the arguments being used to defend bans on gender-affirming care are the same as those used to defend bans on abortion. “It’s the same people who are litigating it in court, and they’re making the same argument,” Braverman says. “If we treat what’s happening to transgender people as though it’s happening in a vacuum, everyone’s going to lose all their rights.” If the Supreme Court sides with Tennessee, for example, states might be emboldened to try banning other types of sex-specific healthcare, such as IVF or birth control, the ACLU warns.

“The real question in this case is, ‘Can powerful interest groups like the Heritage Foundation or Alliance Defending Freedom make up lies about your health care, and then use those lies to make your healthcare illegal?” Shawn Thomas Meerkamper, senior staff attorney at the Transgender Law Center, said in a briefing for journalists. “Because that’s what’s happening here.”

“One of the things that I think is so concerning about these laws is allowing legislators with no medical knowledge to restrict care for a specific diagnosis,” Lacy says from her office in Memphis. When the Tennessee ban came down, she tried to help her young patients find ways to keep up their existing prescriptions. Some families drove across the border to a clinic in Illinois or flew to other states where the medications were still legal. But for patients needing new prescriptions, her hands were tied.

She thinks about the families that never call her office in the first place—the “chilling effect” stopping parents from even considering medical care as an option after their children come out as trans. “I think when that law was passed, a lot of those parents just said, ‘Nope, can’t even deal with it,’” Lacy says. “Prior, they would say, ‘Well, let’s go in and let’s at least have the conversation.’”

Beyond the chilling effect, Lacy fears how laws like Tennessee’s worsen hostility toward transgender people. She worries about her own daughter, who came out as trans as a young adult, being judged based on how others perceive her gender identity. “There’s just a fear of the risk of existing in the world where the state is saying that you don’t have a right to exist,” Lacy says. “And that’s very, very frightening.”

In 2016, when Tennessee OBGYN Susan Lacy learned she would be providing gender-affirming care to transgender patients in her new job at a reproductive health clinic in Memphis, she felt out of her depth. But it didn’t take long to realize that hormone treatments for trans folks weren’t so different from those she’d been providing for years to cisgender patients. She already knew how to use pills, patches, gels, and injections, with their different formulations and side effects, to reduce menopausal night sweats, hot flashes, and brain fog. Patients who took hormones for gender dysphoria told her they felt a similar sense of relief. “It didn’t matter about socioeconomics, age, race, feminizing or masculinizing hormone therapy,” Lacy says. Often the first reaction was, “I finally feel like I can think straight.”

Now a gynecologist in solo practice, Lacy has more than 300 adult trans patients. At one time, her patient list also included trans teenagers with the consent of their parents. But last year, Tennessee prohibited the prescription of certain medications to minors to treat the distress many trans people feel when their bodies do not align with their gender identity. Under the law, cisgender kids could keep receiving the meds: puberty blockers for those who start puberty too early, for instance, or testosterone or estrogen for teens who enter puberty late. But if the purpose was to treat gender dysphoria, those same medications were forbidden.

On Wednesday, the US Supreme Court will hear oral arguments in a landmark lawsuit challenging the Tennessee ban, brought by the Biden administration’s Department of Justice, Lacy, and three trans minors and their families. United States v. Skrmetti is one of the biggest cases of the term and the first major trans-rights case to be heard by the court since far-right lawmakers and policy groups launched a coordinated campaign inundating statehouses with hundreds of anti-trans bills a few years ago. Legal experts say the Skrmetti case could shape the landscape for trans rights for years to come, while testing how far the Court’s conservative supermajority is willing to extend its 2022 decision allowing states to ban abortion: Will the justices give states free rein to outlaw yet another form of healthcare?

“Before treatment, I hid,” one plaintiff, 15-year-old Ryan Roe, wrote in a declaration asking a federal judge to put the ban on hold. But with hormone therapy, “I am raising my hand in class again and participating in all aspects of school. I feel stronger—physically, mentally and emotionally. I feel so happy with myself and that makes me feel like I can do and be more.” 

That changed, he added, when Tennessee lawmakers began debating the gender-affirming care ban. “Hopelessness creeped in again.”

The Skrmetti arguments are happening at a time of intense fear and vulnerability for the trans community. President-elect Donald Trump and his allies bet on transphobia to take back the White House and Congress, pouring millions into anti-trans campaign ads and vowing a broad crackdown on what Trump refers to as “left-wing gender insanity” (though the extent to which trans issues swayed the electorate remains unclear). Supported by groups like the Heritage Foundation, the think tank behind Project 2025, and Alliance Defending Freedom, a religious-right legal behemoth, states have made particular targets of trans young people, restricting their use of school bathrooms and locker rooms, their participation in sports, and discussion of LGBTQ-related topics in classrooms and libraries. 

They have also targeted medical care, with nearly half of states outlawing gender-affirming treatments for people under 18, cutting off access for an estimated 118,300 trans teens. The bans have been enacted over the objections of virtually all leading US medical associations, which consider such treatments clinically appropriate. One study of almost 12,000 trans teenagers found that those who received hormone therapy reported lower rates of depression and suicidality compared to those who wanted but didn’t receive the treatment. When Tennessee’s ban took effect, Lacy says, “the biggest sense from the patients was despair—anger and despair.” Parents, meanwhile, were frustrated: “Why can I not make this decision for my child?”

“It is painful to even think about having to go back to the place I was in before I was able to come out and access the care that my doctors have prescribed for me,” one of the plaintiffs, a 15-year-old trans girl known as L.W., wrote in a declaration. She struggled to focus and connect with friends, and got sick when she had to use the boy’s bathroom at school.

“It is painful to even think about having to go back to the place I was in before I was able to come out and access the care that my doctors have prescribed for me.”

L.W.’s mother, Samantha Williams, wrote in a declaration of her own that starting gender-affirming medical care had improved her daughter’s physical and mental health: “She has more confidence, she is fully present, and not only does she accept hugs, but she also gives hugs.” The Tennessee ban prompted Williams and her husband to consider moving their family away from relatives, work, and the community where their two children had grown up. “I do not want to see her go back to the dark place she was in prior to coming out and receiving the life-saving treatment she needs,” Williams wrote.

LGBTQ-rights organizations have filed lawsuits over almost every gender-affirming care ban, with Skrmetti the first case to reach the Supreme Court. Now, justices are being asked to set the standard under which lower-court judges must evaluate whether laws like Tennessee’s violate the Equal Protection Clause of the US Constitution. The justices’ eventual decision could have implications not just for gender-affirming care bans, but for future anti-trans laws in statehouses and Congress. “It will tell the next administration whether it’s open season to continue with these attacks on trans young folks and transgender people more broadly,” says Jenny Pizer, chief legal officer of the LGBTQ civil rights organization Lambda Legal, “or whether there’s going to be some limits.”

There’s a potential wild card in the mix: When Trump takes office, his Department of Justice is likely to try to reverse the Biden administration’s position and withdraw the case. Pizer says that if that happens, there’s no telling how the Supreme Court would respond. They could agree to kill the case, deny the request, or push a decision off till next term. Or, they could let the federal government withdraw but allow the case to proceed, with only the Tennessee families and Lacy as plaintiffs.

Legally speaking, the main issue in the case boils down to the question of whether bans on gender-affirming care are a form of sex-based discrimination. If they are, then states going forward will have to prove, when challenged, that the bans are “substantially related” to an “important state interest.” That’s a fairly high bar—one that would require judges to weigh the medical and scientific evidence around the prohibited treatments. When trial courts have looked at that evidence in the past, they’ve overturned the bans, siding with the trans youth and their families.

In fact, that’s what happened in the Middle District of Tennessee federal court, where the Skrmetti case started. “The Court acknowledges that the state feels strongly that the medical procedures banned by [the law] are harmful to minors,” District Judge Eli Richardson wrote last year in an order temporarily blocking the law. “The medical evidence on the record, however, indicates otherwise.”

Richardson’s decision wasn’t controversial at the time—every federal judge, including Trump appointees, who had looked at gender-affirming care bans up until that point had blocked them. But the Sixth Circuit Court of Appeals, which oversees Tennessee, went the other way, ruling 2 to 1 that the law did not discriminate based on sex, and thus it didn’t have to meet the higher level of scrutiny. (The judges also shot down the plaintiffs’ two other arguments—that anti-trans discrimination is unique and merits a closer look by the courts, and that the ban violates parents’ right to direct their children’s medical care.) In the 14 months since that decision, more courts have upheld gender-affirming care bans for minors, including in Ohio, Oklahoma, and Missouri.

If the Supreme Court agrees with the Sixth Circuit’s approach, courts going forward will apply the lowest level of scrutiny to gender-affirming care bans. The result, says Jess Braverman, legal director at the advocacy group Gender Justice, would be “like a rubber stamp.”

Casual Supreme Court observers would be forgiven for thinking that the question of whether anti-trans discrimination counts as sex discrimination has already been settled. In his majority opinion in the court’s last major trans-rights case, Bostock v. Clayton County in 2020, Justice Neil Gorsuch stated, “It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” But since that ruling, which involved a funeral home employee who was fired after transitioning, conservative lawyers and public officials have been trying to limit Bostock from being applied to situations beyond employment. The result has been an escalation of the legal battles over federal protections for trans people: Do existing sex-discrimination laws shield them at school? What about at the doctor’s office?

In arguing that Tennessee’s ban discriminates based on sex, DOJ lawyers point to the text of the law, which explicitly says that the state wants to “encourage[e] minors to appreciate their sex” and forbid treatments that might “encourage minors to become disdainful of their sex.” The “purpose is to force boys and girls to look and live like boys and girls,” appellate judge Helene White summarized in a dissent from the Sixth Circuit ruling. Under the law, kids can receive puberty blockers and hormone therapy if the medications are provided to help them conform their bodies to their sex assigned at birth, but not if the treatments are provided to help them not conform. “There is no way to determine whether these treatments must be withheld from any particular minor without considering [the minor’s] sex,’” DOJ lawyers argue in their Supreme Court briefing.

Tennessee Attorney General Jonathan Skrmetti contends that the ban does not discriminate based on sex. Instead, he says, the law is a health care regulation that applies to everyone. “The law draws a line between minors seeking drugs for gender transition and minors seeking drugs for other medical purposes,” he argues in his brief. “Boys and girls fall on both sides of that line.”

In making that argument, Skrmetti repeatedly cited Dobbs v. Jackson Women’s Health Organization, the 2022 case that overturned the federal right to abortion. As Susan Rinkunas has noted over at The New Republic, the Tennessee AG is picking up on an aside by Justice Samuel Alito in the Dobbs ruling that Mississippi’s abortion ban didn’t violate the Equal Protection Clause because, according to the justice, the ban didn’t discriminate based on sex. To back up this assertion, Alito cited a Supreme Court ruling from 1974, Geduldig v. Aiello, which held that an insurance policy specifically excluding pregnancy-related coverage was not a form of sex discrimination, and applied to everyone. That ruling and a related decision were deemed so outrageous at the time that Congress swiftly enacted the Pregnancy Discrimination Act to override them.

Now, there is a risk that when the Supreme Court decides Skrmetti, it will apply the same reasoning from Geduldig and Alito’s sidenote in Dobbs: Even when laws restrict medical treatments that only matter for certain groups—like pregnant women, or trans people—those laws aren’t inherently discriminatory, because not every member of that group requires that type of care. “It’s kind of like our Supreme Court is a bunch of freshman philosophy students,” Braverman says. “It’s like they’re all asking, ‘Do we see the same color when we see yellow?’ Except lives are at stake.”

“It’s kind of like our Supreme Court is a bunch of freshman philosophy students. It’s like they’re all asking, ‘Do we see the same color when we see yellow?’ Except lives are at stake.”

To Braverman, it’s no surprise that the arguments being used to defend bans on gender-affirming care are the same as those used to defend bans on abortion. “It’s the same people who are litigating it in court, and they’re making the same argument,” Braverman says. “If we treat what’s happening to transgender people as though it’s happening in a vacuum, everyone’s going to lose all their rights.” If the Supreme Court sides with Tennessee, for example, states might be emboldened to try banning other types of sex-specific healthcare, such as IVF or birth control, the ACLU warns.

“The real question in this case is, ‘Can powerful interest groups like the Heritage Foundation or Alliance Defending Freedom make up lies about your health care, and then use those lies to make your healthcare illegal?” Shawn Thomas Meerkamper, senior staff attorney at the Transgender Law Center, said in a briefing for journalists. “Because that’s what’s happening here.”

“One of the things that I think is so concerning about these laws is allowing legislators with no medical knowledge to restrict care for a specific diagnosis,” Lacy says from her office in Memphis. When the Tennessee ban came down, she tried to help her young patients find ways to keep up their existing prescriptions. Some families drove across the border to a clinic in Illinois or flew to other states where the medications were still legal. But for patients needing new prescriptions, her hands were tied.

She thinks about the families that never call her office in the first place—the “chilling effect” stopping parents from even considering medical care as an option after their children come out as trans. “I think when that law was passed, a lot of those parents just said, ‘Nope, can’t even deal with it,’” Lacy says. “Prior, they would say, ‘Well, let’s go in and let’s at least have the conversation.’”

Beyond the chilling effect, Lacy fears how laws like Tennessee’s worsen hostility toward transgender people. She worries about her own daughter, who came out as trans as a young adult, being judged based on how others perceive her gender identity. “There’s just a fear of the risk of existing in the world where the state is saying that you don’t have a right to exist,” Lacy says. “And that’s very, very frightening.”

The first state to ban abortion after the fall of Roe v. Wade just became the first state to have a near-total abortion ban reversed by popular vote.

The people of Missouri voted on Tuesday to create a constitutional right to “reproductive freedom”—defined as the ability to make and carry out one’s own decisions about abortion, birth control, and health care during pregnancy—approving Amendment 3 by almost 54 percent of the vote as of 11:30 p.m. Central Time, according to the Associated Press.

Amendment 3 was part of a nationwide effort by reproductive rights groups to use ballot initiatives to restore abortion rights state by state after the Supreme Court wiped out the national right to abortion. On Election Day this year, 10 states voted on abortion rights ballot measures.

In deep-red Missouri, where the state government is controlled by avowed abortion foes, even getting this initiative before voters was a feat. Republican state officials repeatedly threw up barriers to the process of certifying the ballot language and gathering signatures, leading to a series of bitter legal battles that all, ultimately, were decided in favor of abortion rights advocates. As Mother Jones reported last week:

Amendment 3’s proponents, a coalition known as Missourians for Constitutional Freedom, have traveled a rocky road just to get the measure before voters. They’ve overcome blatant obstruction by top state GOP officials, multiple legal challenges, and deep internal divisions over whether the initiative should allow the state to ban abortions after fetal viability. The final text protects abortion rights until viability, and permits later abortions if needed to protect the life or health of the pregnant person.

The new constitutional amendment now sets up a legal challenge to Missouri’s abortion ban as well as to the constellation of restrictions that made getting an abortion almost impossible in the state even before the fall of Roe. As I wrote last year:

The reality is that, even before Dobbs, abortion access in Missouri was close to nil. The legislature had passed too many burdensome and medically unnecessary rules designed to be impossible for abortion clinics to comply with. In the years prior to Dobbs, the only clinic still offering abortions was a Planned Parenthood location in St. Louis, which performed about 100 abortions annually. “Many, many Missourians for years now have gone to Kansas or Illinois to access care, because the states had fewer restrictions,” explains Emily Wales, CEO of Planned Parenthood Great Plains, which stopped offering abortions at its Missouri locations in 2018. 

In this environment, the success of the initiative shows the enduring power of abortion rights as a motivation for voters—and their enduring anger against deadly laws that curb pregnant people’s power to control their bodies and their futures.

The first state to ban abortion after the fall of Roe v. Wade just became the first state to have a near-total abortion ban reversed by popular vote.

The people of Missouri voted on Tuesday to create a constitutional right to “reproductive freedom”—defined as the ability to make and carry out one’s own decisions about abortion, birth control, and health care during pregnancy—approving Amendment 3 by almost 54 percent of the vote as of 11:30 p.m. Central Time, according to the Associated Press.

Amendment 3 was part of a nationwide effort by reproductive rights groups to use ballot initiatives to restore abortion rights state by state after the Supreme Court wiped out the national right to abortion. On Election Day this year, 10 states voted on abortion rights ballot measures.

In deep-red Missouri, where the state government is controlled by avowed abortion foes, even getting this initiative before voters was a feat. Republican state officials repeatedly threw up barriers to the process of certifying the ballot language and gathering signatures, leading to a series of bitter legal battles that all, ultimately, were decided in favor of abortion rights advocates. As Mother Jones reported last week:

Amendment 3’s proponents, a coalition known as Missourians for Constitutional Freedom, have traveled a rocky road just to get the measure before voters. They’ve overcome blatant obstruction by top state GOP officials, multiple legal challenges, and deep internal divisions over whether the initiative should allow the state to ban abortions after fetal viability. The final text protects abortion rights until viability, and permits later abortions if needed to protect the life or health of the pregnant person.

The new constitutional amendment now sets up a legal challenge to Missouri’s abortion ban as well as to the constellation of restrictions that made getting an abortion almost impossible in the state even before the fall of Roe. As I wrote last year:

The reality is that, even before Dobbs, abortion access in Missouri was close to nil. The legislature had passed too many burdensome and medically unnecessary rules designed to be impossible for abortion clinics to comply with. In the years prior to Dobbs, the only clinic still offering abortions was a Planned Parenthood location in St. Louis, which performed about 100 abortions annually. “Many, many Missourians for years now have gone to Kansas or Illinois to access care, because the states had fewer restrictions,” explains Emily Wales, CEO of Planned Parenthood Great Plains, which stopped offering abortions at its Missouri locations in 2018. 

In this environment, the success of the initiative shows the enduring power of abortion rights as a motivation for voters—and their enduring anger against deadly laws that curb pregnant people’s power to control their bodies and their futures.

In a victory for abortion rights advocates, New Yorkers just voted to enshrine extensive anti-discrimination protections into their state constitution—permanently insulating the rights of pregnant people, abortion seekers, and the LGBTQ community, among others, from changing political winds.

Proposal 1 is one of 10 ballot initiatives to protect abortion rights that went before voters on Tuesday. Going into Election Day, supporters of abortion rights had won every single ballot initiative to go before voters since the Supreme Court overturned Roe v. Wade in June 2022.

With 33 percent of votes counted as of 9:50 p.m., Proposal 1 was winning with 72 percent of the vote Tuesday night, according to the Associated Press. But the ballot measure encountered and overcame steeper-than-expected opposition in the safe blue state. Opponents had mounted an openly transphobic campaign to block it, spreading misleading claims about the proposal’s effects on a range of Republican culture war issues, including trans youth health care, women’s sports, and noncitizen voting. In the final days of the race, conservative billionaire Richard Uihlein dropped $6.5 million into efforts to defeat the measure.

From the outset, Proposal 1 was designed to protect abortion rights. As Mother Jones reported last week:

New York’s Proposal 1 may not include the word “abortion,” but it would create first-in-the-nation protections for the rights of pregnant people.

The proposal is a broad version of the Equal Rights Amendment, the long-running feminist effort to guarantee women’s rights in state and federal constitutions. Right now, New York’s constitution only forbids government discrimination on the basis of race and religion. Prop. 1 adds more protected categories to that list: disability, age, ethnicity, national origin, and sex, including sexual orientation, gender identity, and gender expression. Those types of discrimination are already banned under state law, but by enshrining protections in the constitution, Prop. 1 would make them harder for legislators to attack in the future—for example, if New York politics keep trending rightward.

Here’s where abortion comes in: The amendment also bans discrimination based on “pregnancy status, pregnancy outcomes, and reproductive health care and autonomy.” Not only does that definition go farther than any other state, it leaves little room for judges to interpret in ways that might limit abortion access, according to Katharine Bodde, of the New York Civil Liberties Union.

Yet while New York Democrats initially viewed Prop. 1 as a surefire way to boost voter turnout, their right-wing opponents have seized on transphobic messaging to great effect—making this blue-state fight unexpectedly close.

The Yes on Prop. 1 campaign declared victory on Twitter on Tuesday night. “While the world waits for the national election results, tonight,” the campaign posted. “New York State lived up to our motto, ‘ever upward,’ and took an extraordinary step forward in our enduring work to build freedom for all.”

In the lead-up to the 2020 presidential election, GOP consultants were fighting over strategy: Would going all-in on anti-trans messaging deliver then-President Donald Trump the suburbs in his race against former Vice President Joe Biden? Or should his campaign stay away from the issue, given widespread support among the electorate for LGBTQ rights like same-sex marriage? “This might become a hot cultural issue, but it’s not a thing yet,” one Republican consultant told Politico in the summer of 2020. “Right now, it’s just an easy issue for the other side to attack us on. They will call us bigots.”

So much has changed, as a network of conservative and religious-right groups coordinated to push hundreds of bills to wipe out trans youth health care, bar them from sports teams that match their gender identity, and censor discussion of LGBTQ issues in schools. With more than 129 anti-LGBTQ laws passed across the country in the last two years, GOP candidates now are betting that they’ve seeded enough anti-trans sentiment among voters to use transphobia as a motivating issue. It doesn’t seem to matter to Republicans that trans issues still tend to rank last among voters’ priorities: From August through early October, GOP candidates dropped $65 million on anti-trans advertising, according to a New York Times analysis. The hateful rhetoric has been deployed all the way down the ballot, in Senate races, statehouse contests, and state constitutional amendment campaigns.

Now, as the presidential race draws to a close, Trump’s campaign has made anti-trans ads the biggest focal point of its spending. The TV spots and social media posts spread falsehoods about medical care for trans youth, cast trans athletes as predators, and link support for trans people with support for (nonexistent) “partial-birth abortions.” Sports fans will recognize the constant refrain—“Kamala is for they/them. President Trump is for you.”—from game-day commercial breaks.

None of this bodes well for trans rights under either Trump or Harris, no matter what happens on Election Day, or in the weeks afterward. “​​I’ve been calling this the most anti-LGBTQ election since 2004,” says Sean Meloy, vice president of political programs at the LGBTQ+ Victory Fund, which works to elect queer and trans candidates. In 2004, George W. Bush used same-sex marriage as a wedge issue in his reelection campaign, betting it would drive conservatives to the polls. (As it turns out, right-wing voters were motivated by other priorities.) “They’re doing exactly the same thing now,” Meloy says. “Gay and lesbian people are understood and represented, and now they’re trying to dehumanize and use trans people and their experiences to get votes.”

Trump has pledged to defund gender-affirming care—and to ban it for minors.

Just being exposed to hateful political rhetoric can harm trans youth. Last year, in a Trevor Project survey, 86 percent of trans and nonbinary youth said debates about anti-trans bills negatively affected their mental health; half said they experienced cyberbullying; and a third didn’t feel safe going to the doctor. And when states pass anti-trans laws, the consequences for mental health are devastating: A study published in Nature Human Behavior in June found suicide attempts by trans youth ages 13 to 17 rose by as much as 72 percent a year after anti-trans laws were enacted.

Such laws are now the norm in Republican-dominated states. “In either scenario in November, we’re still facing that reality, where transgender people’s and also LGBTQ people’s rights more broadly depend almost entirely on what state they happen to live in,” says Logan Casey, director of policy research for the Movement Advancement Project. Already, trans people and their families are facing a “really difficult choice,” he says. “Stay in the place that they call home, seek healthcare somewhere else, or move out of state for potentially safer environments.”

If Trump wins the presidency, Casey says, the attacks succeeding now on the state level can be expected to graduate to the federal government. In his first term, Trump already provided a model for targeting transgender people. He banned them from the military; permitted anti-trans discrimination in health care; rolled back protections for trans students; and created a broad license for businesses to discriminate based on “religious objections”—often against LGBTQ people. More clues for a second term come from Project 2025, much of which was written by former Trump administration members, which equates “transgender ideology” with pornography and declares that it should be banned. The blueprint for a second Trump administration proposes wiping the terms “sexual orientation” and “gender identity” completely out of all federal policy.

And if the GOP wins both Congress and the White House, Trump has pledged to go further than before—cutting off federal funding for gender-affirming medical care and making it illegal nationwide for doctors to provide such care to minors.

But even without Congress, Trump would still have immense power to target transgender people through executive agencies. First on the list: reinterpreting federal laws in ways that eliminate protections for transgender people. That includes the Affordable Care Act, as well as Title IX, which forbids sex discrimination in education. Are schools and doctors expected to treat people according to their gender identity? The Obama and Biden administrations said yes. But in the years between, Trump appointees reversed those rules. “What they mean in terms of bathrooms, what they mean in terms of sports, what those regulations look like is very dependent on, is [Betsy] DeVos in charge or not?” says Jess Braverman, legal director at Gender Justice. 

Legal and policy experts who specialize in LGBTQ rights also warn that Trump appointees could create broad religious exemptions to federal nondiscrimination rules. One potential consequence: Government contracts going to organizations that exclude queer and trans people or insist on misgendering them. For example, during the first Trump administration, Catholic Charities was the only organization in Texas contracted to provide foster care placements for refugee children. The organization disqualified a lesbian couple, allegedly because they did not “mirror the Holy Family.” (Lambda Legal sued, and won.) Jennifer Pizer, Lambda Legal’s chief legal officer, says she’s particularly concerned about federal agencies giving contractors free rein, because the people they serve are often in dire need. “Whether it’s providing shelter or food or disaster relief, when they discriminate, then the people who are entitled to receive services, they don’t necessarily stay,” she explains.

The Project 2025–obsessed loyalists and ideologues who will staff a second Trump administration will not only set a tone for the massive federal workforce—one likely to be hostile to LGBTQ employees—but they’ll also be in charge of deciding how federal program money is distributed. “That money can go to responsible, community-based organizations and professional institutions that provide services consistent with professional standards, in a nondiscriminatory way,” Pizer says, “or to expand the religious infrastructure that we have in this country.”

“No matter which way the regulations go, no matter what they say, there’s always going to be litigation.”

Pretty much any agency moves are guaranteed to wind up in the courts, where lawsuits are already raging over trans-inclusive interpretations of Title IX and the ACA. Even when the Supreme Court weighs in—as it did in 2020 when it ruled that Title VII, the federal law banning sex discrimination in employment, protected transgender workers—the underlying issues aren’t put to rest. “No matter which way the regulations go, no matter what they say, there’s always going to be litigation,” Braverman says.

So it matters immensely who’s on the bench—another presidential power. During Trump’s first term, he appointed nearly 200 judges, reshaping the federal judiciary all the way up to the Supreme Court. As a result, those justices didn’t just overturn Roe v. Wade, they widened religious exemptions to civil rights law in ways that let more business owners refuse to serve LGBTQ clients. And, with all the recent state laws targeting transgender youth, a profusion of litigation over trans issues is making its way through the federal court system. In the most prominent case, United States v. Skrmetti, the DOJ has teamed up with trans families and has asked the court to decide if states can ban puberty blockers and hormone therapy for trans youth while permitting the same treatments for cisgender patients.

Oral argument for Skrmetti is scheduled for December—meaning the case should be submitted before the next president takes office. Pizer notes that it remains to be seen whether a Trump White House would try to reverse the DOJ’s current position on the case, and whether the justices would allow it.

In some ways, the backsliding in support for trans people is bipartisan. Democratic candidates this cycle have often appeared tentative or afraid of how conservative messaging about trans issues has already shaped public opinion. 

Some Democrats have adopted anti-trans rhetoric defensively, referring to trans people not by their gender identity but by the sex they were assigned at birth. “Let me be clear, I don’t want boys playing girls’ sports,” said Democratic Senate candidate Texas Rep. Colin Allred, running against Ted Cruz in Texas, in his response to a right-wing attack ad. Some LGBTQ-rights advocates chalked Allred’s response up to “messy” allyship; others called it a “dog whistle.” Either way, anti-trans activists were thrilled: “Beautiful Ted gets a major W here,” American Principles Project president Terry Schilling posted.

Even Kamala Harris, who dedicated an entire interview to describing her support for trans people during her first run for president in 2019, and who otherwise has a strong record advocating for the queer community, has stopped short of giving a robust defense of trans rights in her campaign. When attacked for allowing incarcerated people to access gender-affirming care, she shot back that such care was offered in federal prisons under the Trump administration. Gender-affirming care “is a decision that doctors will make in terms of what is medically necessary,” Harris elaborated under further questioning by NBC anchor Hallie Jackson. 

“It feels like that’s a long way from ‘we see you and we love you,’ which was your message to trans Americans in May,” Jackson pushed back. “What do you want the LGBTQ+ community to know as they’re looking for a full-throated backing from you for trans Americans?”

“I believe that all people should be treated with dignity and respect, period, and should not be vilified for who they are, and should not be bullied for who they are,” Harris replied. 

To some queer and trans observers, Harris’ general rebuttal about a need for inclusion is a disappointment, failing to meet the intensity of the anti-trans backlash. Others see it as an appropriate calculation for a dangerous political moment. “There are attacks against multiple groups of people, and so a counter-message that says, ‘Targeting people is not good, we need to come together as a country, we need to be inclusive as a country’—that is an apt message for these times,” Pizer says.

The stakes of the rhetoric are extremely high. While the average American’s opinions about transgender policies—from bathroom bans to gender-affirming care restrictions—are largely unformed and in flux, according to research from the University of Minnesota, politicians’ anti-trans messages have broadened support for restrictive policies. “As public opinion continues to evolve in this area,” the researchers concluded, “much will depend on the behavior and framing offered by elites.”

And the anti-trans rhetoric from Trump and his allies has already had a profound impact on queer people—none more so than the trans women and drag queens featured in the ads without their consent. “I haven’t been able to sleep,” Gabrielle Ludwig, a trans woman whose college basketball career was exploited in multiple ads, told The Hill. “I don’t want my family affected. I have granddaughters, daughters who are in college. I only did this because I love to play basketball. That’s all it ever was.”

With so much ultimately being up to the courts—and political battles sure to continue in the states, if not the federal government—Braverman believes a Harris win could be a chance to change the narrative. “The demonization and the discussion and the ‘let’s just debate people’s humanity’—that is the thing that is really making life hard for people,” they say.

Harris cannot unilaterally reverse the tide of anti-trans legislation in states; beyond her ability to affect policy areas like health and education, her greatest power lies in her words. “Laws and regulations are really important,” Braverman says, but “there needs to be more. There needs to be education, there needs to be understanding. There needs to be support from people in power.”

In overturning Roe v. Wade, the US Supreme Court gave state-level judges enormous new power to decide the reproductive fates of tens of millions of people of childbearing age. With the national right to abortion wiped out, states were forced to decide if abortions were legal for their residents as pre-Roe “zombie” laws, trigger bans, and state constitutional protections whipsawed pregnant people trying to receive care. And now, in ten states, abortion-rights ballot measures are going before voters.

It has been up to state courts to sort out this increasingly convoluted mess. Could a 150-year-old law criminalizing abortion be used to prosecute modern-day doctors? The Arizona Supreme Court decided it could. Do frozen embryos count as “children”? The Alabama Supreme Court said so in February. And does a state constitution’s guarantee of “life, liberty, and the pursuit of happiness” protect a woman’s right to end her own pregnancy? Last month, a North Dakota state judge decided yes. Meanwhile, over the last year, state supreme courts in Iowa, Florida, and Georgia have all allowed six-week bans on abortion to take effect.

Yet unlike their federal counterparts, these black-robed figures don’t enjoy lifetime appointments. Two years after Dobbs, state supreme courts have become among the most critical battlegrounds of the 2024 elections. Twenty-two states allow voters to elect their state supreme court justices, and several more let voters decide whether to retain justices appointed by the governor. Anti-abortion forces have long understood that controlling who sits on state high courts is critical to cementing and expanding their far-right agenda. Indeed, it was only after the GOP governors of Iowa and Florida packed their supreme courts with conservative justices did those courts overturn prior state precedents and uphold draconian abortion bans.

“State courts have been an under-resourced and overlooked tool for reproductive and gender equity.”

Abortion rights supporters are finally seeing the light. “State courts have been an under-resourced and overlooked tool for reproductive and gender equity,” says Christina Uribe, director of the Gender Equity Action Fund, which channels money to local progressive and reproductive-rights advocacy groups that educate voters about state-level judicial races. “There’s a lot of opportunity here, and a lot of work left to do to make sure people understand the power that state courts have over their daily lives and the power they have to decide who sits on the bench.”

Progressives made the most of that opportunity in last year’s Wisconsin Supreme Court special election, which shattered turnout and spending records in a battle for ideological control of the highest court in a crucial swing state. The victory of an openly pro-choice justice, Janet Protasiewicz, swung control of the court leftward for the first time in 15 years, with consequences for both abortion access and voter rights. The court has the final say over Wisconsin’s congressional maps, for instance, which have been heavily gerrymandered to favor the GOP.

Advocates like Uribe are hoping that concerns over reproductive rights will have the same impact this November. “Abortion turns out to be really highly mobilizing,” she says. (It’s true.) “I do believe voters subconsciously associate the US Supreme Court with ‘they created this mess.’ They don’t want the state court creating more of a mess.”

So which states have supreme court elections to watch? Here are seven states where the outcome on November 5 could influence the future of abortion rights for tens of millions of people.

Ohio

A trio of partisan Supreme Court races are expected to shape how Ohio implements an abortion-rights amendment that passed with broad support last year.

In November 2023, Ohioans voted overwhelmingly to create a state constitutional right to “make and carry out one’s own reproductive decisions.” But what does that mean for the state’s six-week abortion ban, which is still on the books? What about the many other incremental restrictions on abortion that lawmakers have passed over the decades? As long as the Republican-dominated state legislature doesn’t repeal these laws—and they haven’t—it’s up to the courts to decide.

So far, in response to lawsuits by abortion-rights advocates, lower-court Ohio judges have permanently blocked the six-week ban and have temporarily blocked a 24-hour waiting period and a rule against physician assistants and nurse practitioners providing abortion pills. But those fights aren’t over—and they will almost certainly be appealed all the way up to the state’s high court, which is now controlled 4-3 by Republican justices.

Ohio Supreme Court terms last six years, and races were nonpartisan until 2021, when GOP state lawmakers voted to add candidates’ party affiliations to the ballot, claiming it was needed to better inform voters (they had just lost three seats to liberal candidates.) This year’s races are uphill battles for Democrats, who need to win all three state seats to gain a majority and potentially determine the outcome of the abortion rights cases. If Republicans win all three, they’ll hold a 6-1 supermajority, with a clear advantage for abortion opponents. 

Michigan

As in Ohio, Michigan’s Supreme Court has the final word on whether old anti-abortion laws will be overturned after voters passed a constitutional amendment enshrining abortion rights in 2022. Democratic Gov. Gretchen Whitmer has already signed a package of bills repealing some laws that conflicted with the new amendment. But other restrictions persist, including a ban on Medicaid-funded abortions and a parental consent requirement for minors.

Michigan justices serve eight-year terms, with two seats up for election at a time, and no term limits. Democratic-backed justices currently hold a 4-3 majority on the court, and Republican-backed candidates will need to win both races on the November ballot to flip control. (While Michigan Supreme Court races are ostensibly nonpartisan, candidates are selected at party nominating conventions.) Justice Kyra Harris Bolden, an incumbent appointed by Whitmer, is running against Judge Patrick O’Grady, who was nominated after a Trump ally charged with election tampering dropped out. Meanwhile, law professor Kimberly Thomas is the Democrat vying for an open seat against Republican state representative Andrew Fink. In 2021, Fink supported a city ordinance making it a crime to “aid or abet” abortion in the Ohio city of Hillsdale, the home of an influential conservative Christian college.

Montana

In a red state where voters put a premium on keeping the government out of people’s daily lives, the Montana Supreme Court has often taken a remarkably permissive approach to abortion rights. In a 1999 case, Armstrong v. State, it ruled that the state constitution’s strong language around privacy implies a right to “procreative autonomy.” Based on this precedent, even before Dobbs, state courts struck down a parade of anti-abortion laws:: a 20-week ban, waiting periods, mandatory ultrasounds, parental notification requirements, and prohibition of telemedicine abortion, among others.

But with two of the seven state Supreme Court seats up for grabs this November, reproductive rights advocates are worried the tide could shift, especially with the state attorney general firing shots at Armstrong. Justices serve eight-year terms, and the court is officially nonpartisan, but both retiring justices are seen as left-leaning. Two candidates to replace them, Jerry Lynch and Katherine Bidegaray, have both said they agreed with Armstrong’s reasoning (responding to a Montana ACLU questionnaire). Two others, Cory Swanson and Dan Wilson, have been dubbed part of a “pro-life team for Montana” by the anti-abortion group Susan B. Anthony Pro-Life America—and neither answered the ACLU question.

One additional factor: If Montana voters pass a constitutional amendment known as CI-128 that’s also on the November ballot, they’ll enshrine an explicit right to abortion until the point of fetal viability, around 24 weeks. As in Ohio and Michigan, it will be up to the state Supreme Court to interpret the amendment, if it passes.

North Carolina

Over the past few years, conservatives have gradually flipped control of North Carolina’s supreme court, and Republican justices now hold a 5-2 majority. They could extend that margin to 6-1 this year if state Court of Appeals Judge Jefferson Griffin beats incumbent Justice Allison Riggs, who was appointed by Democratic Gov. Roy Cooper to fill a vacancy.

Griffin is seen as a threat to abortion rights. Last year, he was part of a three-judge panel that ruled that a mother’s parental rights could be terminated if her child was in utero at the time she committed a crime—because “life begins at conception.” The ruling was so error-ridden, and the outcry so loud, that it was withdrawn three weeks later.

Now, Griffin could ascend to the state’s highest court for an eight-year term. But even if Riggs keeps her seat, Democrats would need to win Supreme Court races again in 2026 and 2028 to recover the majority. It’s a long game in a state that once served as an abortion-access lifeline to pregnant people in the South— until a single state representative switched parties and gave Republicans the supermajority they needed to enact a 12-week abortion ban over Cooper’s veto last year.

Retention elections in Arizona and Indiana

In Arizona and Indiana, supreme court justices are appointed by governors but must run for a retention election after two years, and then every six or ten years thereafter. (In Arizona, for instance, an initial 2-year term would be followed followed by 6-year terms. Indiana’s initial 2-year term is then followed by a 10- year term.) Usually, these up-or-down votes in the retention election are perfunctory: Only six judges in Arizona’s 112-year history have not been retained, according to the Tucson Sentinel, and it’s never happened at the supreme court level.

Voters this year could buck that trend, as progressive and abortion-rights advocates try to mobilize a “No” vote on retention elections for Justices Clint Bolick and Kathryn King in Arizona; and Justices Mark Massa, Derek Molter, and Loretta Rush in Indiana.

All these justices have signed on to opinions that blocked access to abortion in their states. In Arizona, Bolick and King joined a ruling in April that said the state could enforce its 1864 “zombie” abortion ban—triggering so much public outcry, the legislature soon repealed the old law. In Indiana, the three justices upheld a near-total abortion ban, interpreting the state constitution to only protect abortion when the procedure was “necessary to protect [the pregnant person’s] life or to protect her from a serious health risk.”

While retention elections have been sleepy in the past, the campaigns against these justices have made some sit up and take notice. Supporters of the Arizona judges are trying to stop the judicial elections altogether, by filing their own ballot initiative. Proposition 137 would eliminate the state’s retention election system, and instead allow appointed judges to keep their seats indefinitely unless they are convicted of a crime or a commission finds their performance lacking. If it passes, it would nullify “No” votes against King or Bolick. 

Texas

The Texas Supreme Court has been uniformly Republican since 1998. So it seemed like a safe bet that the three incumbent Republican justices—Jimmy Blacklock, John Devine, and Jane Bland—would easily swat away their trio of Democratic challengers this November. That was until the emergence of Find Out PAC—a committee formed this spring by former US Air Force undersecretary Gina Ortiz Jones to go after the Texas justices who “f*cked around with our reproductive freedoms, and now they’re going to find out,” as the group’s website puts it.

Find Out PAC’s ads draw attention to the justices’ recent rulings against women who were denied abortions amid dangerous pregnancies. Last December, the court ruled against Kate Cox, a pregnant woman who found out her fetus had no chance of survival. Her doctor said carrying the pregnancy to term would put her at high risk for serious medical complications and require her to undergo a C-section, so Cox sought to temporarily block the state’s ban so she could get an abortion. A lower court initially agreed, but the Texas Supreme Court stepped in to block the order. Then, in May, the court unanimously decided that the state abortion ban’s medical exceptions were sufficiently clear, even though a group of women said they were denied abortions despite experiencing serious pregnancy complications. One of the plaintiffs, Amanda Zurawski, had been forced to wait until she was diagnosed with a life-threatening case of sepsis and a fallopian tube infection that affected her future fertility.

The odds are still long in all three races, but the seat considered most likely to flip is currently held by Justice John Devine, who has bragged about being arrested outside abortion clinics; he also missed more than half of oral arguments between last September and February because he was too busy campaigning. “These folks are elected; they can be unelected,” Jones told the Austin-American Statesman. “Republicans understand that the bench is a stepping stone for higher office, while we’re not even fighting for those seats.”

When Wendy Davis wanted to get birth control as a teenager in the 1980s, she went to her local Planned Parenthood in Fort Worth, Texas, with a friend. “There is absolutely no way I would have asked my mother for her permission to do that,” says Davis, the former Texas state senator who famously filibustered an anti-abortion bill for 11 hours in a pair of pink sneakers. “That’s just not something that’s possible for many, many, many teenage girls.” 

Forty years later, with abortion banned in wide swaths of the country, access to reliable contraception is more important than ever. Yet for Texas teens, getting prescription birth control is arguably harder now than it was when Davis was an adolescent. Over the past two years, federal courts—including the notoriously conservative 5th Circuit—have ruled that minors must have parental consent to obtain prescription birth control from Texas clinics subsidized by a federal family planning program known as Title X. Flush with victory, Texas Republicans have made it clear: They have no intention of stopping there. In late July, Attorney General Ken Paxton filed suit to overturn a new federal rule that reaffirmed teens’ ability in other states to get contraception without their parents’ consent. “The Biden Administration continues to prove they will do anything to implement their extremist agenda,” Paxton said in a press release.

To anyone paying even a modicum of attention, the far right’s plans to limit access to birth control have long been hiding in plain sight. When the Supreme Court overturned the federal right to abortion in the Dobbs decision in 2022, Justice Clarence Thomas wrote that the court “should reconsider” other rulings with similar legal principles, including Griswold v. Connecticut, the 1965 decision establishing a right to contraception (and, more fundamentally, a constitutional right to privacy). The ultra-conservative strategists behind Project 2025— including Roger Severino, longtime anti-abortion movement lawyer, and Russell Voght, an avowed Christian nationalist—have spelled out a plan for how a Republican-led White House could gut or rewrite key federal birth-control regulations, building on efforts that began during the first Trump administration. (While Trump has tried to distance himself from Project 2025, even claiming he doesn’t know who wrote it, at least 140 members of Trump’s team, including Severino and Voght, had a hand in drafting it.)

But what has escaped many Americans is that these threats aren’t just terrifying what-if-this-happens scenarios. As the Texas lawsuits show, in some parts of the United States, that scary future has already arrived. States have been passing laws allowing pharmacies to refuse to fill birth control prescriptions based on moral objections, or proposing legislation that unscientifically classifies emergency contraception and IUDs as “abortifacients.” Reproductive Health and Freedom Watch has found that since 2021, at least 21 states have directed a total of $513 million to religiously affiliated crisis pregnancy centers and “alternatives to abortion” programs that actively spread misinformation about birth control and discourage its use.

And though contraception is supported by around 90 percent of voters, when Congress had the chance earlier this year to pass a law protecting access to birth control, Republican senators blocked it, claiming it was unnecessary.

The Biden administration has repeatedly pushed back—most recently, with a new proposed rule under the Affordable Care Act to require private insurance to cover 100 percent of the cost of over-the-counter birth control and offer patients more choices for prescription contraception. In a statement, Vice President Kamala Harris described the move as “the largest expansion of contraception coverage in more than a decade.” But the regulations won’t be finalized until after the presidential election, and the new rules are virtually certain to be challenged in GOP-packed federal courts even if Harris wins. 

And what if she doesn’t?

A new Trump administration and its right-wing allies are expected to escalate attacks on contraception on a multitude of fronts, including appointing extremists to key government positions. Rather than outright bans, we should expect more subtle incursions—regulatory changes, limits on insurance coverage, and funding reductions for family planning, as well as rules like the parental consent requirement for teens, according to reproductive health policy experts interviewed by Mother Jones. “It would be cleaner if there was some direct attack on the right to contraception that opponents of reproductive healthcare were pursuing,” says Kelly Baden, vice president for public policy at the Guttmacher Institute. “They’re not. It is much more behind-the-scenes, around the margins. And yet, the impact is still potentially devastating.”

“It would be cleaner if there was some direct attack on the right to contraception that opponents of reproductive healthcare were pursuing. They’re not.”

“That’s what happened to abortion,” adds Amanda Stevenson, an assistant professor at the University of Colorado-Boulder who studies the impact of family planning policy. “Death by a thousand cuts.”

Here are four key strategies we can expect under a new Trump administration intent on undermining access to contraception:

Doubling Down on False Claims that Birth Control Causes Abortion

One of the most common attack lines against contraception is the claim that certain methods—notably IUDs and morning-after pills—are abortifacients, which is to say they cause abortion, purportedly by preventing fertilized eggs from implanting in the uterus. In fact, decades of research show that these methods block fertilization from ever happening—by preventing the release of eggs, for instance, or stopping sperm from reaching them. Yet the belief that IUDs and emergency contraception, like Plan B and Ella, end pregnancies rather than preventing them has become distressingly common, thanks in part to rampant misinformation spread by the anti-abortion movement—including appointees in the first Trump administration.

The falsehoods have made their way into Food and Drug Administration policy, with decades-long repercussions for reproductive health. Back in the early 2000s, when the FDA was trying to decide whether Plan B should be sold over the counter, it relied on an advisory committee that included several abortion opponents. Over the objections of their colleagues, those committee members persuaded the agency to include language in Plan B’s packaging that stated the drug “may also work” by preventing implantation. Not until 2022 did the FDA finally update the Plan B label to clarify the drug “does not terminate a pregnancy.” But anti-abortion groups could challenge that update in a second Trump administration.

Meanwhile, since 2015, the “abortifacient claim” has inspired lawmakers in at least seven states to vote to cut off funding for contraception or block bills to protect access to it, USA Today found in a recent investigation. Project 2025 also continues this line of attack, describing Ella as a “potential abortifacient” and proposing to wipe out mandatory insurance coverage for it. Some anti-abortion organizations, including the influential Students for Life, even falsely claim that the daily birth control pill is an abortifacient. As my colleague Kiera Butler has written, it’s all part of a growing right-wing movement to persuade women that hormonal contraception is just plain bad for them. If Trump wins, his appointees are likely to bring those arguments with them to the agencies they oversee, further threatening birth control access.

Rewriting Title X

Attacking government subsidies for contraception has been part of the GOP playbook for decades. A favorite target is Title X, a federal safety-net program that underwrites free reproductive health services—birth control, cervical cancer screenings, and STI screening and treatment, but not abortion—for low-income and uninsured people. Planned Parenthood clinics, a common provider of these services, receive about 20 percent of Title X funds.

No surprise: Texas has led the way in attacking the federal program since 2011, when the legislature slashed state funding for reproductive health care and redirected Title X money to primary care providers. The changes that year—designed to kneecap Planned Parenthood—forced scores of reproductive health clinics to close, and others to reduce hours, charge patients new fees, or ration the most effective (but expensive) forms of contraception, such as IUDs. As a result of the changes, the number of clients served by Texas family planning organizations fell by more than half, and the teen birth rate rose an estimated 3.4 percent. “It shredded the safety net for women’s health care in our state,” says Davis, now a senior adviser to Planned Parenthood Texas Votes. “Tens of thousands of women literally lost the only health care they had ever known, overnight. It was devastating, and slowly, we’ve been building our way back.”

“Tens of thousands of women literally lost the only health care they had ever known, overnight.”

Trump’s first-term appointees, following Texas’ lead, set about dramatically reshaping the entire Title X program. The administration’s “gag rule,” first proposed under Ronald Reagan but never fully implemented, which forbids any clinics that took Title X money from referring patients to abortion providers. It also required them to keep separate books and separate facilities from their abortion services, if they offered them—a logistical nightmare. Some 1,300 reproductive health facilities, including 400 Planned Parenthood clinics, withdrew from the program rather than withhold abortion referrals from patients who wanted them, and roughly 1.6 million patients lost access to federally subsidized birth control. “It was a very difficult time in the program,” says Clare Coleman, president of the National Family Planning & Reproductive Health Association. “Of course, the numbers plummeted.” What happened to the freed-up Title X money? The Trump administration sent some of it to a chain of Christian “crisis pregnancy centers” that refused to provide contraception or even referrals for birth control, as my colleague Stephanie Mencimer found in a 2019 investigation.

When Joe Biden took office, his administration promptly revoked the Trump rule, and the Title X network started rebuilding. But Vice presidential candidate Ohio Sen. JD Vance has already signaled that a second Trump administration would try again to defund Planned Parenthood—code for attacking Title X. Project 2025 urges the next president to “quickly” reissue the gag rule. It also advocates that Title X be “reframed with a focus on better education around fertility awareness”—a less-reliable method of cycle tracking favored by anti-abortion activists and wellness influencers—with grants opened up once again to anti-abortion religious organizations.

In anticipation of a Trump win, Coleman’s organization has been working with reproductive health clinics to prepare for the old gag rule to be reissued and even expanded soon after Inauguration Day. Not only could the next version of the rule pick up on Texas’ efforts to require parental consent for teenagers, Coleman warns Trump appointees are also likely to attack gender-affirming care. (Title X does not explicitly fund such care but some providers offer those services separately, just as they do abortion.) “They may say, if you take Title X, you can’t provide any of that care,” Coleman speculates. “We are quite concerned about them trying to enforce not only a gender binary—because we also do see men in the Title X program—but to recast it as: ‘This is a program about biological sex.’”

That’s if Title X survives at all: House Speaker Mike Johnson’s budget bill in September 2023 would have defunded the program entirely.

Gutting the Affordable Care Act

Before the Obama administration passed the Affordable Care Act, birth control accounted for around a third of women’s out-of-pocket healthcare expenses, according to the National Women’s Law Center. Monthly copays deterred women from getting the Pill, while an IUD could have an up-front cost of $1,000.

The ACA changed all that for over 62 million women. Starting in 2012, the law classified contraception as a form of preventive care and made it mandatory for private insurance to cover a wide range of prescription birth control at no cost to consumers. Last year, responding to the fallout from Dobbs, the Biden administration directed agencies to find ways to strengthen the contraception mandate and make sure insurers follow it; last month’s announcement on coverage of over-the-counter contraception follows that effort.

Fighting the contraception mandate has been one of the key ways conservatives and religious groups have sought to erode access to birth control. In 2014, the Supreme Court’s infamous Hobby Lobby ruling blew a crater in the ACA’s contraception mandate in the name of protecting religious freedom. There had always been a religious exemption for churches and houses of worship. But Hobby Lobby expanded that exemption to include 90 percent of US businesses—letting them deny coverage for birth control in employee insurance plans if the owners had a religious objection.

Trump broadened the exemption even further in his first term, allowing employers to decline to provide birth control based on moral, not just religious, objections. “It opens the door wide for any employer that provides health insurance to pick and choose what kind of contraception they would like to cover,” says Dana Singiser, cofounder of the Contraceptive Access Initiative.

Of course, there’s always the chance that a Republican White House and Congress would wipe out the ACA altogether, as Trump tried to do in 2017. Trump has since made conflicting statements about whether he would try again for a repeal or impose “concepts of a plan” to replace it. In late October, Speaker Johnson promised a “massive reform” of the ACA if Trump is elected.

Even with the ACA still on the books, experts say Trump could do significant damage, bypassing Congress by issuing new regulations or guidance from executive-branch agencies. Project 2025 leans in on this idea, urging the next president to make regulatory moves that would hobble the contraceptive mandate. “It’s not flashy,” says Lauren Wallace, senior counsel for reproductive rights and health at the National Women’s Law Center. “Every administration is allowed to put out proposed rules, put out guidance. So those are the ways this coverage can be stripped.”

“Every administration is allowed to put out proposed rules, put out guidance. So those are the ways this coverage can be stripped.”

The Biden administration is currently finalizing a replacement to Trump’s rule allowing moral objections to the contraceptive mandate; it’s safe to say that Trump would block or revoke it. He could also issue other regulations to make the contraceptive mandate “unworkable,” Wallace says. He could give insurers more agency to make rules around which types of birth control they choose to insure or require patients to try certain methods, before covering more expensive ones.

Project 2025’s authors, of course, have their own ideas about which forms of birth control are preferable. Their blueprint urges the next president to require the Department of Health and Human Services to issue new regulations about what is covered by the ACA contraceptive mandate. In: “fertility awareness” methods. Out: male condoms and Ella.

Shrinking Medicaid While Increasing Surveillance

Back to Texas.

Over the past decade or so, at the same time the state was attacking family planning clinics, it found a way to mess with the most common way people pay for birth control: Medicaid. And Davis sees what it did as a potential model for other states should Trump win.

First, the state passed a law banning abortion providers and their affiliates from participating in the state’s Medicaid-funded family planning program. The law conflicted with a federal rule allowing Medicaid patients to choose any “willing” provider. That meant Texas had to apply to the Obama administration for a waiver of the rule. “They got into a standoff,” Davis recalls. “The Obama administration said, ‘We’re going to remove all of your funding if you do this.’ And Texas said, ‘Fine, do it.’”

For the next few years, Texas ran a shrunken version of the program using state funding. Then Trump appeared, installing a National Right to Life Committee lobbyist to oversee national family planning policy. Texas applied for the Medicaid waiver again—and this time, received it. The Trump administration also gave the state permission not to cover emergency contraception in its Medicaid-funded program.

Davis predicts that other states will use the same maneuver to sever Planned Parenthood from Medicaid, should Trump return to office. Tennessee, which bans virtually all abortions, and South Carolina, which bans them at six weeks, have already applied for similar waivers. And Missouri recently enacted a law to ban all Medicaid reimbursements for abortion providers and their affiliates—even though the state’s abortion ban means they now only provide services like contraception and cancer screening.

Project 2025 proposes making federal Medicaid family planning funding conditional on states participating in a frighteningly detailed abortion surveillance system. “Because liberal states have now become sanctuaries for abortion tourism,” the blueprint says, “HHS should use every available tool, including the cutting of funds, to ensure that every state reports exactly how many abortions take place within its borders.” The database would include the gestational age at which the abortion was performed, the method, and the reason for it.

The proposal would force states to make an “impossible choice,” says Madeline Morcelle, senior attorney at the National Health Law Program. Participating in that “weaponized program,” she says, “would likely be used to criminalize pregnant people,” particularly immigrants, Black, Indigenous, and other people of color, young people, and people with disabilities. But dropping out would likely mean losing federal funding for vital Medicaid services affecting millions of those same low-income people.

Davis, in Texas, says she knows that predictions about losing access to birth control can sound exaggerated. She’s heard such criticisms before—from people who believed that Roe would never fall. “There are those out there who believe that this is hyperbole,” she says. But as a Texan who has witnessed how what appears radical becomes normalized, she has no illusions about the potential dangers. “I don’t think it’s unlikely at all that as Republicans become more and more extreme, and governed in a more and more extreme way by their rightward flank, that we are going to see these things become a reality.”

Correction, October 31: An earlier version of this story misstated which funds Project 2025 suggests withholding from states that don’t participate in an expanded abortion surveillance program.

When Wendy Davis wanted to get birth control as a teenager in the 1980s, she went to her local Planned Parenthood in Fort Worth, Texas, with a friend. “There is absolutely no way I would have asked my mother for her permission to do that,” says Davis, the former Texas state senator who famously filibustered an anti-abortion bill for 11 hours in a pair of pink sneakers. “That’s just not something that’s possible for many, many, many teenage girls.” 

Forty years later, with abortion banned in wide swaths of the country, access to reliable contraception is more important than ever. Yet for Texas teens, getting prescription birth control is arguably harder now than it was when Davis was an adolescent. Over the past two years, federal courts—including the notoriously conservative 5th Circuit—have ruled that minors must have parental consent to obtain prescription birth control from Texas clinics subsidized by a federal family planning program known as Title X. Flush with victory, Texas Republicans have made it clear: They have no intention of stopping there. In late July, Attorney General Ken Paxton filed suit to overturn a new federal rule that reaffirmed teens’ ability in other states to get contraception without their parents’ consent. “The Biden Administration continues to prove they will do anything to implement their extremist agenda,” Paxton said in a press release.

To anyone paying even a modicum of attention, the far right’s plans to limit access to birth control have long been hiding in plain sight. When the Supreme Court overturned the federal right to abortion in the Dobbs decision in 2022, Justice Clarence Thomas wrote that the court “should reconsider” other rulings with similar legal principles, including Griswold v. Connecticut, the 1965 decision establishing a right to contraception (and, more fundamentally, a constitutional right to privacy). The ultra-conservative strategists behind Project 2025— including Roger Severino, longtime anti-abortion movement lawyer, and Russell Voght, an avowed Christian nationalist—have spelled out a plan for how a Republican-led White House could gut or rewrite key federal birth-control regulations, building on efforts that began during the first Trump administration. (While Trump has tried to distance himself from Project 2025, even claiming he doesn’t know who wrote it, at least 140 members of Trump’s team, including Severino and Voght, had a hand in drafting it.)

But what has escaped many Americans is that these threats aren’t just terrifying what-if-this-happens scenarios. As the Texas lawsuits show, in some parts of the United States, that scary future has already arrived. States have been passing laws allowing pharmacies to refuse to fill birth control prescriptions based on moral objections, or proposing legislation that unscientifically classifies emergency contraception and IUDs as “abortifacients.” Reproductive Health and Freedom Watch has found that since 2021, at least 21 states have directed a total of $513 million to religiously affiliated crisis pregnancy centers and “alternatives to abortion” programs that actively spread misinformation about birth control and discourage its use.

And though contraception is supported by around 90 percent of voters, when Congress had the chance earlier this year to pass a law protecting access to birth control, Republican senators blocked it, claiming it was unnecessary.

The Biden administration has repeatedly pushed back—most recently, with a new proposed rule under the Affordable Care Act to require private insurance to cover 100 percent of the cost of over-the-counter birth control and offer patients more choices for prescription contraception. In a statement, Vice President Kamala Harris described the move as “the largest expansion of contraception coverage in more than a decade.” But the regulations won’t be finalized until after the presidential election, and the new rules are virtually certain to be challenged in GOP-packed federal courts even if Harris wins. 

And what if she doesn’t?

A new Trump administration and its right-wing allies are expected to escalate attacks on contraception on a multitude of fronts, including appointing extremists to key government positions. Rather than outright bans, we should expect more subtle incursions—regulatory changes, limits on insurance coverage, and funding reductions for family planning, as well as rules like the parental consent requirement for teens, according to reproductive health policy experts interviewed by Mother Jones. “It would be cleaner if there was some direct attack on the right to contraception that opponents of reproductive healthcare were pursuing,” says Kelly Baden, vice president for public policy at the Guttmacher Institute. “They’re not. It is much more behind-the-scenes, around the margins. And yet, the impact is still potentially devastating.”

“It would be cleaner if there was some direct attack on the right to contraception that opponents of reproductive healthcare were pursuing. They’re not.”

“That’s what happened to abortion,” adds Amanda Stevenson, an assistant professor at the University of Colorado-Boulder who studies the impact of family planning policy. “Death by a thousand cuts.”

Here are four key strategies we can expect under a new Trump administration intent on undermining access to contraception:

Doubling Down on False Claims that Birth Control Causes Abortion

One of the most common attack lines against contraception is the claim that certain methods—notably IUDs and morning-after pills—are abortifacients, which is to say they cause abortion, purportedly by preventing fertilized eggs from implanting in the uterus. In fact, decades of research show that these methods block fertilization from ever happening—by preventing the release of eggs, for instance, or stopping sperm from reaching them. Yet the belief that IUDs and emergency contraception, like Plan B and Ella, end pregnancies rather than preventing them has become distressingly common, thanks in part to rampant misinformation spread by the anti-abortion movement—including appointees in the first Trump administration.

The falsehoods have made their way into Food and Drug Administration policy, with decades-long repercussions for reproductive health. Back in the early 2000s, when the FDA was trying to decide whether Plan B should be sold over the counter, it relied on an advisory committee that included several abortion opponents. Over the objections of their colleagues, those committee members persuaded the agency to include language in Plan B’s packaging that stated the drug “may also work” by preventing implantation. Not until 2022 did the FDA finally update the Plan B label to clarify the drug “does not terminate a pregnancy.” But anti-abortion groups could challenge that update in a second Trump administration.

Meanwhile, since 2015, the “abortifacient claim” has inspired lawmakers in at least seven states to vote to cut off funding for contraception or block bills to protect access to it, USA Today found in a recent investigation. Project 2025 also continues this line of attack, describing Ella as a “potential abortifacient” and proposing to wipe out mandatory insurance coverage for it. Some anti-abortion organizations, including the influential Students for Life, even falsely claim that the daily birth control pill is an abortifacient. As my colleague Kiera Butler has written, it’s all part of a growing right-wing movement to persuade women that hormonal contraception is just plain bad for them. If Trump wins, his appointees are likely to bring those arguments with them to the agencies they oversee, further threatening birth control access.

Rewriting Title X

Attacking government subsidies for contraception has been part of the GOP playbook for decades. A favorite target is Title X, a federal safety-net program that underwrites free reproductive health services—birth control, cervical cancer screenings, and STI screening and treatment, but not abortion—for low-income and uninsured people. Planned Parenthood clinics, a common provider of these services, receive about 20 percent of Title X funds.

No surprise: Texas has led the way in attacking the federal program since 2011, when the legislature slashed state funding for reproductive health care and redirected Title X money to primary care providers. The changes that year—designed to kneecap Planned Parenthood—forced scores of reproductive health clinics to close, and others to reduce hours, charge patients new fees, or ration the most effective (but expensive) forms of contraception, such as IUDs. As a result of the changes, the number of clients served by Texas family planning organizations fell by more than half, and the teen birth rate rose an estimated 3.4 percent. “It shredded the safety net for women’s health care in our state,” says Davis, now a senior adviser to Planned Parenthood Texas Votes. “Tens of thousands of women literally lost the only health care they had ever known, overnight. It was devastating, and slowly, we’ve been building our way back.”

“Tens of thousands of women literally lost the only health care they had ever known, overnight.”

Trump’s first-term appointees, following Texas’ lead, set about dramatically reshaping the entire Title X program. The administration’s “gag rule,” first proposed under Ronald Reagan but never fully implemented, which forbids any clinics that took Title X money from referring patients to abortion providers. It also required them to keep separate books and separate facilities from their abortion services, if they offered them—a logistical nightmare. Some 1,300 reproductive health facilities, including 400 Planned Parenthood clinics, withdrew from the program rather than withhold abortion referrals from patients who wanted them, and roughly 1.6 million patients lost access to federally subsidized birth control. “It was a very difficult time in the program,” says Clare Coleman, president of the National Family Planning & Reproductive Health Association. “Of course, the numbers plummeted.” What happened to the freed-up Title X money? The Trump administration sent some of it to a chain of Christian “crisis pregnancy centers” that refused to provide contraception or even referrals for birth control, as my colleague Stephanie Mencimer found in a 2019 investigation.

When Joe Biden took office, his administration promptly revoked the Trump rule, and the Title X network started rebuilding. But Vice presidential candidate Ohio Sen. JD Vance has already signaled that a second Trump administration would try again to defund Planned Parenthood—code for attacking Title X. Project 2025 urges the next president to “quickly” reissue the gag rule. It also advocates that Title X be “reframed with a focus on better education around fertility awareness”—a less-reliable method of cycle tracking favored by anti-abortion activists and wellness influencers—with grants opened up once again to anti-abortion religious organizations.

In anticipation of a Trump win, Coleman’s organization has been working with reproductive health clinics to prepare for the old gag rule to be reissued and even expanded soon after Inauguration Day. Not only could the next version of the rule pick up on Texas’ efforts to require parental consent for teenagers, Coleman warns Trump appointees are also likely to attack gender-affirming care. (Title X does not explicitly fund such care but some providers offer those services separately, just as they do abortion.) “They may say, if you take Title X, you can’t provide any of that care,” Coleman speculates. “We are quite concerned about them trying to enforce not only a gender binary—because we also do see men in the Title X program—but to recast it as: ‘This is a program about biological sex.’”

That’s if Title X survives at all: House Speaker Mike Johnson’s budget bill in September 2023 would have defunded the program entirely.

Gutting the Affordable Care Act

Before the Obama administration passed the Affordable Care Act, birth control accounted for around a third of women’s out-of-pocket healthcare expenses, according to the National Women’s Law Center. Monthly copays deterred women from getting the Pill, while an IUD could have an up-front cost of $1,000.

The ACA changed all that for over 62 million women. Starting in 2012, the law classified contraception as a form of preventive care and made it mandatory for private insurance to cover a wide range of prescription birth control at no cost to consumers. Last year, responding to the fallout from Dobbs, the Biden administration directed agencies to find ways to strengthen the contraception mandate and make sure insurers follow it; last month’s announcement on coverage of over-the-counter contraception follows that effort.

Fighting the contraception mandate has been one of the key ways conservatives and religious groups have sought to erode access to birth control. In 2014, the Supreme Court’s infamous Hobby Lobby ruling blew a crater in the ACA’s contraception mandate in the name of protecting religious freedom. There had always been a religious exemption for churches and houses of worship. But Hobby Lobby expanded that exemption to include 90 percent of US businesses—letting them deny coverage for birth control in employee insurance plans if the owners had a religious objection.

Trump broadened the exemption even further in his first term, allowing employers to decline to provide birth control based on moral, not just religious, objections. “It opens the door wide for any employer that provides health insurance to pick and choose what kind of contraception they would like to cover,” says Dana Singiser, cofounder of the Contraceptive Access Initiative.

Of course, there’s always the chance that a Republican White House and Congress would wipe out the ACA altogether, as Trump tried to do in 2017. Trump has since made conflicting statements about whether he would try again for a repeal or impose “concepts of a plan” to replace it. In late October, Speaker Johnson promised a “massive reform” of the ACA if Trump is elected.

Even with the ACA still on the books, experts say Trump could do significant damage, bypassing Congress by issuing new regulations or guidance from executive-branch agencies. Project 2025 leans in on this idea, urging the next president to make regulatory moves that would hobble the contraceptive mandate. “It’s not flashy,” says Lauren Wallace, senior counsel for reproductive rights and health at the National Women’s Law Center. “Every administration is allowed to put out proposed rules, put out guidance. So those are the ways this coverage can be stripped.”

“Every administration is allowed to put out proposed rules, put out guidance. So those are the ways this coverage can be stripped.”

The Biden administration is currently finalizing a replacement to Trump’s rule allowing moral objections to the contraceptive mandate; it’s safe to say that Trump would block or revoke it. He could also issue other regulations to make the contraceptive mandate “unworkable,” Wallace says. He could give insurers more agency to make rules around which types of birth control they choose to insure or require patients to try certain methods, before covering more expensive ones.

Project 2025’s authors, of course, have their own ideas about which forms of birth control are preferable. Their blueprint urges the next president to require the Department of Health and Human Services to issue new regulations about what is covered by the ACA contraceptive mandate. In: “fertility awareness” methods. Out: male condoms and Ella.

Shrinking Medicaid While Increasing Surveillance

Back to Texas.

Over the past decade or so, at the same time the state was attacking family planning clinics, it found a way to mess with the most common way people pay for birth control: Medicaid. And Davis sees what it did as a potential model for other states should Trump win.

First, the state passed a law banning abortion providers and their affiliates from participating in the state’s Medicaid-funded family planning program. The law conflicted with a federal rule allowing Medicaid patients to choose any “willing” provider. That meant Texas had to apply to the Obama administration for a waiver of the rule. “They got into a standoff,” Davis recalls. “The Obama administration said, ‘We’re going to remove all of your funding if you do this.’ And Texas said, ‘Fine, do it.’”

For the next few years, Texas ran a shrunken version of the program using state funding. Then Trump appeared, installing a National Right to Life Committee lobbyist to oversee national family planning policy. Texas applied for the Medicaid waiver again—and this time, received it. The Trump administration also gave the state permission not to cover emergency contraception in its Medicaid-funded program.

Davis predicts that other states will use the same maneuver to sever Planned Parenthood from Medicaid, should Trump return to office. Tennessee, which bans virtually all abortions, and South Carolina, which bans them at six weeks, have already applied for similar waivers. And Missouri recently enacted a law to ban all Medicaid reimbursements for abortion providers and their affiliates—even though the state’s abortion ban means they now only provide services like contraception and cancer screening.

Project 2025 proposes making federal Medicaid family planning funding conditional on states participating in a frighteningly detailed abortion surveillance system. “Because liberal states have now become sanctuaries for abortion tourism,” the blueprint says, “HHS should use every available tool, including the cutting of funds, to ensure that every state reports exactly how many abortions take place within its borders.” The database would include the gestational age at which the abortion was performed, the method, and the reason for it.

The proposal would force states to make an “impossible choice,” says Madeline Morcelle, senior attorney at the National Health Law Program. Participating in that “weaponized program,” she says, “would likely be used to criminalize pregnant people,” particularly immigrants, Black, Indigenous, and other people of color, young people, and people with disabilities. But dropping out would likely mean losing federal funding for vital Medicaid services affecting millions of those same low-income people.

Davis, in Texas, says she knows that predictions about losing access to birth control can sound exaggerated. She’s heard such criticisms before—from people who believed that Roe would never fall. “There are those out there who believe that this is hyperbole,” she says. But as a Texan who has witnessed how what appears radical becomes normalized, she has no illusions about the potential dangers. “I don’t think it’s unlikely at all that as Republicans become more and more extreme, and governed in a more and more extreme way by their rightward flank, that we are going to see these things become a reality.”

Correction, October 31: An earlier version of this story misstated which funds Project 2025 suggests withholding from states that don’t participate in an expanded abortion surveillance program.

Two years after the US Supreme Court ended the federal right to abortion, tens of millions of Americans will go to the polls this November hoping to protect access to the procedure—whether their lawmakers like it or not. Ten states— some already with robust protections, others with near-total bans—have measures on their ballots to enshrine abortion rights in their constitutions. The expected outpouring of voters, including in key swing states, could help determine control of the White House, Congress, state legislatures, and state supreme courts.

Reproductive freedom has proved to be one of the strongest currents shaping the outcome of American elections since 2022. So far, voters in seven states have reacted to the end of Roe v. Wade by passing ballot measures aimed at restoring, and even expanding, Roe’s protections. In a few of those states, the voter-initiative process empowered the public to bypass GOP-dominated legislatures and supersede decades-old restrictions. Reproductive rights organizers are hoping to continue that winning streak on November 5. 

But faced with the broad appeal of abortion initiatives in GOP-led states such as Ohio, Republican officials have gone to sometimes extreme lengths to undermine the latest measures. In Florida, for example, Gov. Ron DeSantis has waged a multifront war on Amendment 4, threatening television stations that air ads favoring the measure and issuing a 348-page report accusing the Floridians Protecting Freedom campaign of “widespread petition fraud.” 

While most of this year’s measures have a common objective—protecting reproductive access—they take very different approaches to reaching that goal. Here is a rundown of what’s on the November ballot, which we will update as election results become available. 

Arizona

In anticipation of the end of Roe, Arizona Republicans passed a 15-week abortion ban in early 2022. But they also left in place an 1864 statute that outlawed nearly all abortions and threatened providers with jail time—a “zombie” law that was moot as long as Roe was in effect. This past April, the Arizona Supreme Court revived that Civil-War era ban by a 4–2 vote. The GOP-controlled legislature quickly repealed the old law, but many Arizonans were outraged at what the court had done, and the campaign to put Proposition 139 on the November ballot exploded. Prop 139 would enshrine a fundamental right to abortion in the Arizona Constitution and prohibit the state from restricting or banning abortion until the point of fetal viability—about 24 weeks. Abortions would be allowed later in pregnancy to save the mother’s life or to protect her physical or mental health. The amendment would also protect anyone who helps another person obtain an abortion.

A coalition of reproductive rights groups certified more than 575,000 signatures this past summer—the most ever validated for a citizens initiative in the state’s history, supporters said. In a New York Times/Siena College poll in late September, Prop 139 was ahead among likely voters by a resounding 58 percent. If it passes, Prop 139 could be used to challenge almost 40 abortion laws on Arizona’s books, including the existing 15-week ban, a prohibition on telehealth abortions, and a parental consent requirement for teenagers.

Colorado

Long before the Dobbs decision, Colorado legislators passed numerous laws safeguarding access to abortion. But after Dobbs, reproductive health advocates in the state concluded that even the strongest statutes weren’t strong enough—Colorado needed to enshrine those protections in its constitution. The measure they put on the November ballot, Amendment 79, wouldn’t just establish a right to abortion; it would repeal a 40-year-old constitutional provision that prohibited the use of state dollars to fund abortion. Sponsored by a coalition called Coloradans for Protecting Reproductive Freedom, the measure needs 55 percent of votes to pass. 

Surrounded by states with bans or heavily restrictive laws, Colorado is a crucial abortion access point for the West. With no gestational limits, the state is also a haven for anyone seeking an abortion later in pregnancy, as it is home to one of four clinics in the US that offer third-trimester procedures. Repealing the ban on state funding would allow Colorado to use its state Medicaid dollars to pay for abortions, making the procedure more accessible for low-income patients.

Florida

Florida’s Amendment 4 would enshrine in the state’s constitution the freedom to seek an abortion before fetal viability, and after viability if a medical provider determines that the procedure is necessary to preserve a patient’s health.

Gov. DeSantis and his GOP administration have done everything they can to sabotage the amendment—including sending “election police” to the homes of people who signed the petitions.

If the measure passes, it would dramatically improve access to reproductive care in Florida, which since May has banned abortions after six weeks of pregnancy. Before that, the state permitted abortions up to 15 weeks, and before Dobbs, until 24 weeks. The impact of the Florida vote will be felt throughout the Southeast: Tennessee, Alabama, Arkansas, Mississippi, and Kentucky all have near-total abortion bans; Georgia and South Carolina have six-week bans, and North Carolina’s 12-week ban is made more burdensome by a 72-hour waiting period. 

The stakes for passage are high, and so are the barriers. Over the last several election cycles, Florida has turned out more conservative voters than liberal ones. While reproductive rights are popular across the political spectrum, the state has a 60 percent threshold to approve constitutional amendments; the other red states that have passed abortion-protective measures since Dobbs—Kansas, Kentucky, Ohio—only required simple majorities. Meanwhile, Gov. DeSantis and his GOP administration have done everything they can to sabotage the amendment—including sending “election police” to the homes of people who signed the petitions, ostensibly to root out fraud. If the measure passes, DeSantis and his allies are widely expected to fight just as hard to overturn the results.

Maryland

Maryland’s Question 1, which was placed on the November ballot by the state legislature, does not mention “abortion”—much to the chagrin of supporters and opponents alike. Instead, the amendment broadly establishes the constitutional right to “reproductive freedom,” including the freedom to decide whether to continue or end a pregnancy. It needs a simple majority to pass.

Maryland already has some of the least restrictive abortion laws in the country: There is no gestational limit, state Medicaid covers the procedure, and a shield law protects patients who travel from states with abortion bans. This has made the state a critical access point for abortion seekers further along in pregnancy, as well as people traveling from the South. Abortion protections are widely popular in the state; in a recent poll by the University of Maryland, Baltimore County, 69 percent of respondents said they plan to vote for Question 1.

Missouri

Missouri’s near-total abortion ban took effect mere minutes after the Supreme Court overturned Roe v. Wade in 2022—making it the first state in the nation to broadly prohibit abortion. Abortion-rights advocates soon set about crafting a ballot initiative to end the ban, inspired by wins in other states. Now, with Amendment 3, voters will decide whether they want the right to “reproductive freedom”—defined as the ability to make and carry out one’s own decisions about contraception, abortion, and healthcare during pregnancy. If approved by a simple majority, the amendment would set up a legal battle to overturn the current ban and challenge the many other Missouri laws that regulated abortion providers nearly out of existence even when Roe was still in effect.

Amendment 3’s proponents, a coalition known as Missourians for Constitutional Freedom, have traveled a rocky road just to get the measure before voters. They’ve overcome blatant obstruction by top state GOP officials, multiple legal challenges, and deep internal divisions over whether the initiative should allow the state to ban abortions after fetal viability. The final text protects abortion rights until viability, and permits later abortions if needed to protect the life or health of the pregnant person.

Montana

Constitutional Initiative 128 establishes the right to make and carry out decisions about one’s own pregnancy, including abortion. If passed, it would allow the state to regulate abortion after fetal viability, so long as those restrictions don’t prevent abortions that health care providers deem medically necessary. The amendment, which requires more than 50 percent of the vote, would also prevent the government from criminalizing patients and anyone who helps a person exercise her abortion rights.

If top Republican state officials had it their way, the measure would not even be on the ballot. State courts intervened at multiple points; the Montana Supreme Court overruled Attorney General Austin Knudsen’s initial rejection of the proposed amendment, nixed Knudsen’s drafted ballot language saying the amendment “may increase the number of taxpayer-funded abortions,” and threatened Secretary of State Christi Jacobsen with a contempt charge because she refused to hand over the sample ballot petition to the campaign behind the amendment, Montanans Securing Reproductive Rights. After abortion rights supporters submitted nearly double the required 60,000 signatures, Jacobsen even tried changing the rules to throw out the signatures of inactive registered voters, until a district court ordered her to stop.

Thanks to the state supreme court, abortion is currently legal in Montana until fetal viability, despite the best efforts of Republican state legislators to restrict access. Montanans have already brushed off one GOP attempt to stigmatize abortion; in November 2022, 52 percent of voters rejected a legislature-initiated statute that would have made it a felony for doctors to not provide care to infants born alive after induced labor, a cesarean section or an “attempted abortion.” (The law wasn’t necessary since Montana, like every other state, already makes infanticide a crime.)

Nebraska

Nebraska voters will see dueling abortion amendments on their November ballots. Initiative 434 restricts abortion rights, banning the procedure after 12 weeks of pregnancy with limited exceptions. That’s essentially the same law already on the state’s books—but the measure would enshrine it as a constitutional amendment, making it much harder to repeal. And because the amendment doesn’t protect abortion before the 12-week mark, state politicians could always go further and pass a complete ban, as Republican Gov. Jim Pillen has pledged to do.

By contrast, Initiative 439 expands abortion rights, creating a “fundamental right to abortion until fetal viability, or when needed to protect the life or health of the pregnant patient.” In practice, the amendment would roughly double the length of time for pregnant people in Nebraska to get an abortion. Crucially, it would block lawmakers from passing a total ban.

If the double initiatives sound confusing, well, that’s the point. Anti-abortion activists have repeatedly tried to muddy the waters about which ballot initiative is which, as Rachel Cohen at Vox has reported. They’ve also tried to get the pro-abortion initiative thrown off the ballot on a technicality, but the Nebraska Supreme Court shot them down.

Given the confusion, it is possible that both measures could pass. In that case, the one with the most votes wins.

Nevada

Nevada, one of the swingiest states in the 2024 election, has its own version of the Equal Rights Amendment, passed by voters in 2022. But it didn’t explicitly mention protections for abortion. Question 6 constitutionally enshrines the right to abortion until fetal viability or for the health or life of the mother, as determined on a case-by-case basis by health care providers. Any pre-viability restrictions must be directly related to promoting the health of the pregnant person and “consistent with accepted clinical standards of practice.” This year’s vote is just the first step in a multiyear process; assuming a simple majority of voters approve it, the measure must be passed again in 2026 to become part of the constitution.

Thanks to a law passed in 1973, abortion has been legal in Nevada until 24 weeks. Because voters passed a referendum on that law in 1990, it can only be changed by a direct ballot measure. Protections for abortion are very popular in Nevada; a University of Maryland poll conducted over the summer found that about 70 percent of state voters oppose criminalizing abortion at any stage of pregnancy. The campaign behind the amendment, Nevadans for Reproductive Freedom, has raised nearly $10 million since January, according to campaign finance reports; the Coalition for Parents and Children PAC, which successfully sued to block an initial version of the amendment that covered reproductive healthcare more broadly, hasn’t raised or spent any money.

New York

New York’s Proposal 1 may not include the word “abortion,” but it would create first-in-the-nation protections for the rights of pregnant people.

The proposal is a broad version of the Equal Rights Amendment, the long-running feminist effort to guarantee women’s rights in state and federal constitutions. Right now, New York’s constitution only forbids government discrimination on the basis of race and religion. Prop 1 adds more protected categories to that list: disability, age, ethnicity, national origin, and sex, including sexual orientation, gender identity, and gender expression. Those types of discrimination are already banned under state law, but by enshrining protections in the constitution, Prop 1 would make them harder for legislators to attack in the future—for example, if New York politics keep trending rightward.

Here’s where abortion comes in: The amendment also bans discrimination based on “pregnancy status, pregnancy outcomes, and reproductive health care and autonomy.” Not only does that definition go farther than any other state, it leaves little room for judges to interpret in ways that might limit abortion access, according to Katharine Bodde, of the New York Civil Liberties Union.

Yet while New York Democrats initially viewed Prop 1 as a surefire way to boost voter turnout, their right-wing opponents have seized on transphobic messaging to great effect—making this blue-state fight unexpectedly close.

South Dakota

South Dakota’s current abortion ban is one of the most extreme in the country, with all abortions banned except when needed to save a pregnant person’s life. Amendment G, backed by a group called Dakotans for Health, would replace that law with a trimester-based system allowing increasing restrictions on abortion as a pregnancy progresses.  

In the first trimester, the state would be banned from interfering with “a woman’s abortion decision and its effectuation.” In the second trimester, the state could restrict abortion in ways “reasonably related to the physical health of the pregnant woman.” Third-trimester abortions could be banned, except when necessary to preserve a pregnant person’s life or health. The amendment needs a simple majority to pass.

Planned Parenthood and other abortion-rights groups aren’t supporting Amendment G, which they’ve said doesn’t go far enough. But the conservative Republicans who dominate state politics are still so terrified of the measure that they passed an emergency law to let voters revoke their petition signatures—then opponents of the measure led a phone banking effort to dupe signers into pulling their support. Why are state Republicans spooked? “If you can do it in South Dakota, it will strike fear into the hearts of every red-state legislature in the country,” Dakotans for Health co-founder Adam Weiland told the American Prospect.

Madison Pauly, Abby Vesoulis, Julianne McShane, and Nina Martin contributed reporting. This is a developing story. Check back for updates.

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Top image photo credits: Octavio Jones/AFP/Getty; RJ Sangosti/The Denver Post/Getty; William Campbell/Getty; Rachel Aston/Las Vegas Review-Journal/Getty; Getty(3)

In late August, on the fringes of a press conference outside New York City Hall, a man wearing a “Kill your local pedophile” T-shirt and a “Babies Lives Matter” pin screamed at a transgender woman who had shown up to protest the speeches. “Is it a boy or a girl?” the man yelled at the protester, gripping a rainbow Trump flag in his fists. “She shaves her armpits, so it must be a man,” he spat, cursing and hurling epithets. 

On the podium, the transphobic messaging was less vile but no less overt. Speakers were urging the small crowd to vote against Proposal 1, a measure on the November ballot that would strengthen protections for abortion in New York state—and much more. Prop 1 is a statewide version of the Equal Rights Amendment (ERA), the 101-year-old feminist effort to guarantee equal rights for women in the US Constitution. While the federal ERA has been largely stalled since the 1970s, many states have adopted their own versions. New York’s constitution, however, currently bans discrimination based only on race and religion, not sex. That could change if voters accept Prop 1’s expansive vision of equality, which includes protections for segments of the population that historically have been marginalized and demonized, including LGBTQ people.

In a year in which support for abortion rights could determine control of statehouses, Congress, and the presidency, Prop 1 seemed like a shoo-in, especially in the blue state of New York. Yet with a little over a month before the election, the effort to pass the New York ERA has been stumbling. An opposition campaign, calling itself the Coalition to Protect Kids, has fixated on the amendment’s protections for trans people, exaggerating its impact on women’s sports and pushing misleading claims about its effects on parental rights. “By solidifying new constitutional rights based on gender identity, Prop 1 is sacrificing the rights of girls,” Amaya Perez, the New York chapter leader of Gays Against Groomers, a right-wing group known for pushing extremist anti-LBGTQ narratives, said at the press conference. 

Those tactics appear to be working. Leaked polling from the pro-Prop 1 campaign shows that voters find the opposition’s messages extremely persuasive. Months ago, Democrats saw the amendment as a means of motivating liberal turnout in November. Now, state Democratic politics are in a precarious state following the indictment of New York Mayor Eric Adams, and Republican candidates are turning the tables, using opposition to Prop 1 as a rallying cry for their own voters.

“They’re trying to use [trans rights] as a wedge issue,” says Faris Ilyas, policy counsel at the New Pride Agenda, an LGBTQ rights group supporting Prop 1. “Even in New York, it’s a working strategy. We’re a little bit scared of what might happen in November.”

It’s an old trick in conservative politics to argue that equal rights are bad for women. The federal ERA, which says equal rights cannot be denied “on account of sex,” was first drafted by leaders of the women’s suffrage movement in 1923 and introduced in every session of Congress for the next five decades. After it finally passed both the House and Senate in 1972, the next step was to go to the states: An amendment must be ratified by three-quarters of state legislatures before it can be added to the US Constitution. But conservative lawyer Phyllis Schlafly mounted a successful guerrilla campaign claiming the amendment would erase all differences between men and women in the law, thus forcing women into military combat, permitting same-sex marriage, and allowing men to use women’s restrooms. The ERA failed to reach the ratification threshold within the seven-year deadline, though efforts to revive and certify it continue.

Even without the ERA, Schlafly’s predictions have more or less come true: The culture already was shifting toward the kinds of gender equality the amendment attempted to codify. Yet her arguments still hold power. Warnings about mixed-gender bathrooms were used to defeat Houston’s Equal Rights Ordinance in 2015—around the same time conservative legal and political organizations, including the Schlafly-founded Eagle Forum, began whipping up the contemporary anti-trans panic, starting with bills restricting trans students’ bathroom access.

The version of the ERA that will appear on New York ballots doesn’t include the word “abortion,” but it was designed first and foremost to protect the right to choose. The effort started in 2019, when Democrats took control of the state Senate for the first time in a decade. They swiftly passed the Reproductive Health Act, removing abortion from New York’s criminal code—where it had been largely forgotten during the Roe v. Wade era—and protecting access to the procedure through 24 weeks’ gestation. (The new law also allowed abortion later in pregnancy if the fetus was not viable or if the pregnant person’s life or health was in danger.) But soon after, state Sen. Liz Krueger of Manhattan, who had spent a decade shepherding the new law, decided the work wasn’t done. “I realized, nope, not good enough,” Krueger says. “We’ve got to actually start to open up our constitution and modernize it.”

With the confirmation of Justice Brett Kavanaugh to the US Supreme Court in 2018, anti-abortion strategists finally had the far-right majority they needed to overturn Roe. “We were basically a pro-choice blue state with people not really understanding how at risk we were from bad law,” Krueger says. If New York enshrined abortion rights in the state constitution, she figured, those protections would be harder to repeal if the political winds eventually shifted.

So Krueger and Assembly Member Rebecca Seawright, also from Manhattan, convened scholars and reproductive law experts to craft an amendment. Rather than simply writing protections for abortion seekers into the constitution, they decided to swing for the fences: a measure modeled on the federal ERA but even broader. In addition to existing protections for race, color, and religion, Prop 1 would ban government discrimination based on disability, age, ethnicity, national origin, and sex—including sexual orientation, gender identity, and gender expression. The resulting amendment, now known as Prop 1, would make New York’s anti-discrimination protections the “most extensive” in the nation, says Ting Ting Cheng, director of the ERA Project at Columbia Law School, who consulted with the drafters. 

“We were basically a pro-choice blue state with people not really understanding how at risk we were from bad law.”

There are nine other abortion rights ballot initiatives across the country this year, but when it comes to reproductive rights, New York’s ERA is unique. While most of the other measures essentially restore Roe, New York’s approaches abortion “as a matter of gender equality,” says Katharine Bodde, policy co-director of the New York Civil Liberties Union, one of the amendment’s chief backers. To accomplish this, it explicitly says discrimination based on pregnancy status, pregnancy outcomes, and reproductive health care and autonomy count as “sex discrimination” and are forbidden. The idea is to leave little room for judges to interpret the ERA in ways that wouldn’t protect abortion rights or pregnant people in the future. After all, courts have wide latitude to interpret ambiguous language, and they sometimes reconsider their old interpretations—as the US Supreme Court did when it reversed Roe. This past spring, Florida’s Supreme Court overturned a prior decision that said the state constitution protected abortion—after being stacked with judges appointed by Republican Gov. Ron DeSantis. And the Iowa Supreme Court has upheld a six-week abortion ban despite the state’s ERA, which broadly enshrines gender equality but doesn’t get into specifics. “We’re taking no chances in New York with courts interpreting ‘sex discrimination’ narrowly,” Bodde says. 

That scares abortion opponents. New York’s Catholic bishops told their 35,000 mailing list subscribers in September that Prop 1 would “permanently legalize abortion without restriction” and “render impossible any change to the law if the hearts and minds of New Yorkers were ever to shift toward protecting the child in the womb.”

Prop 1 follows an ERA in Nevada two years ago, which passed with 58 percent of the vote after being pitched to the state’s fiercely independent residents as a means of protecting individual liberty. The Nevada ERA overcame opposition from anti-abortion forces—including the religious-right legal firm Alliance Defending Freedom—which predicted that the measure would void Nevada’s ban on Medicaid coverage for abortion. (It was right.) Next up: An expansive ERA is slated for the 2026 ballot in Minnesota, and another is on the table in Oregon. “It’s incremental,” Cheng says. “Every state that does something new, it creates a new bar or a new precedent for other states to go beyond that.”

These amendments work in two ways. First, they harden the state’s existing constellation of anti-discrimination laws by adding them to the state constitution. And second, they give individuals strong constitutional grounds to challenge discrimination by the government. In New York, Prop 1’s  protections for different “pregnancy outcomes” might be used to defend women from criminal prosecution after self-managed abortions or losing a pregnancy in a car accident—both of which have happened in New York, says Dana Sussman, senior vice president of Pregnancy Justice, a nonprofit legal advocacy group. And it might be used to challenge state hospitals that drug test pregnant women, sometimes without their knowledge or consent—policies that can lead to child protection cases and family separation.

Other activists hope the ERA could be used to overturn the state’s 24-week gestational limit, which forces some New Yorkers to travel out of state if—for one of the many reasons women can face delays in accessing care—they need a later abortion. Randi Gregory, vice president of political and legislative affairs at the National Institute for Reproductive Health Action Fund, believes Prop 1 would protect abortion rights “at all trimesters.” “We hope that it will be a framework for other states,” Gregory adds. “We’re really excited to be running an expansive and proactive amendment.”

But that’s only if they can get it passed—a task that looks increasingly daunting.

The coalition behind Prop 1 made big promises in June 2023, after New York Democrats’ embarrassing showing in the 2022 election. Their losses had helped flip control of the US House of Representatives back to the GOP, while former US Rep. Lee Zeldin, an anti-abortion Republican, came within 6 points of winning the governorship.

State Democrats evidently had an excitement problem—one they hoped the ERA could solve. Gov. Kathy Hochul and Sen. Kirsten Gillibrand told the New York Times that they wanted to use the amendment to motivate 2024 turnout. Progressive groups formed New Yorkers for Equal Rights, a committee that pledged to spend $20 million ginning up enthusiasm.

Yet in early September, Politico reported that the committee had raised less than $3 million to counter an opposition that had proven surprisingly well-organized and effective. Suddenly, Democrats were afraid of how Prop 1 might affect their candidates in tight races. In the ensuing scramble, Hochul announced $1 million for TV ads and direct mail and issued a statement: “It’s critical voters know that an abortion amendment is on the ballot in New York this year,” she said. “New Yorkers deserve the freedom to control their own lives and health care decisions, including the right to abortion regardless of who’s in office.”

The opposition campaign, the Coalition to Protect Kids, is largely funded by an upstate anti-abortion activist, Carol Crossed, who is vice president of Feminists Choosing Life of New York. Yet it has leaned heavily on anti-trans rhetoric, arguing the amendment would increase trans people’s access to girls’ sports, women’s bathrooms, and gender-affirming medical care—and that these things would be dangerous. “Anti-abortion extremists are pushing a harmful and cruel agenda,” says Sasha Ahuja, campaign director for New Yorkers for Equal Rights. “They’re lying about a small handful of innocent kids to divide New Yorkers and distract us from what this amendment is actually about: protecting the right to abortion, guaranteeing our personal freedoms, and protecting all of us against government discrimination.”

“They’re lying . . . [to] distract us from what this amendment is actually about: protecting the right to abortion, guaranteeing our personal freedoms, and protecting all of us against government discrimination.”

According to New York politics magazine City & State, internal polling shared with ERA proponents in late August found that 64 percent of voters would definitely, likely, or lean toward voting yes on the amendment when presented with its ballot language. But support plummeted by 24 percentage points after voters heard an attack message focused on girls’ sports, transgender protections, and immigration. (Another blatant lie spread by opponents is that Prop 1 would allow undocumented immigrants to vote.)

Ilyas believes the anti-trans messaging gains credence because many voters don’t have personal experience or relationships with trans people. “When you don’t know a trans person, you have this well-funded messaging at you, and people that you trust are saying the same exact thing and reiterating it, it makes sense for even the average New Yorker who’s middle of the road to believe it,” Ilyas says.

Anti-trans attacks have become a go-to strategy for conservative groups fighting abortion rights ballot initiatives. Opponents to Ohio’s abortion rights measure last year claimed it would permit minors to undergo gender-affirming surgery “without parents’ knowledge or consent” and dubbed it an “anti-parent amendment.” (Such surgeries for minors are very rare, and consent from parents or guardians is required.) In Missouri, a last-ditch lawsuit in September tried to block an abortion rights measure from this fall’s ballot by arguing that it might affect laws around single-sex bathrooms and that the voter petition should have disclosed that. (The state Supreme Court didn’t buy it.)

In New York, Prop 1 supporters have repeatedly pointed out that the amendment says nothing directly about trans participation in sports. In fact, trans inclusion in sports is already New York’s status quo, thanks to existing anti-discrimination laws and a state policy allowing trans students to participate on sports teams matching their gender identity. But like Phyllis Schlafly, Prop 1’s opponents love a dire warning: Lawn signs saying, “Save Girls Sports, Vote No Prop 1,” have become a regular sight in some areas. Republican politicians have been picking up on the theme, including Zeldin, the former congressman, and Gina Arena, a GOP candidate for the state Senate from the lower Hudson Valley.

On Long Island, Nassau County Executive Bruce Blakeman and the Republican-dominated county legislature passed a law this past summer blocking permits for women’s sports teams that include trans women, preventing them from using more than 100 county-run parks and athletics facilities. In response, the New York Civil Liberties Union sued the county on behalf of a women’s roller derby league, citing existing New York civil and human rights laws that forbid discrimination based on gender identity, sex, and disability. If the ERA was in the state constitution, lawyers for the league would doubtless argue that Nassau County had violated it as well. “Transgender athletes have been competing and allowed to compete in the state for a really long time now,” Cheng says. “That’s not going to change because of the ERA.”

“Transgender athletes have been competing and allowed to compete in the state for a really long time now. That’s not going to change because of the ERA.”

Still, uncertainty around which laws the ERA might challenge has been a boon to opponents. On its website, the Coalition to Protect Kids claims that banning age discrimination, for instance, would gut laws governing the drinking age, statutory rape, and parental consent for minors to receive medical treatments—especially gender-affirming care. Bodde dismisses these arguments as “misinformation” meant to “stir fear.” Courts have been clear that constitutional rights apply differently to minors and adults, she says, even despite laws forbidding age discrimination. “The state has long been able to create different rules when it comes to young people, whether that’s ensuring a certain age before people can learn how to drive or vote or purchase alcohol.”

But fear and confusion are powerful tools. Prop 1’s opponents have dubbed the ERA the “Parent Replacement Act.” On social media, the Coalition to Protect Kids has repeatedly cited the American College of Pediatricians, a misleadingly named fringe group of anti-LGBTQ doctors whose frequent declarations against gender-affirming care run counter to the conclusions of dozens of major medical associations. Sometimes the claims slip into self-parody: “If Prop One passes…children will mutilate themselves without the benefit of parental guidance,” reads a mailer sent to voters by the New York Republican State Committee. 

For Ilyas, who is transmasculine, the extremist rhetoric feels very personal—and deeply worrisome. “People don’t think that it could happen in New York, just because it’s New York,” Ilyas says. “These people do exist in New York, and they just maybe haven’t had an outlet.”

In late August, on the fringes of a press conference outside New York City Hall, a man wearing a “Kill your local pedophile” T-shirt and a “Babies Lives Matter” pin screamed at a transgender woman who had shown up to protest the speeches. “Is it a boy or a girl?” the man yelled at the protester, gripping a rainbow Trump flag in his fists. “She shaves her armpits, so it must be a man,” he spat, cursing and hurling epithets. 

On the podium, the transphobic messaging was less vile but no less overt. Speakers were urging the small crowd to vote against Proposal 1, a measure on the November ballot that would strengthen protections for abortion in New York state—and much more. Prop 1 is a statewide version of the Equal Rights Amendment (ERA), the 101-year-old feminist effort to guarantee equal rights for women in the US Constitution. While the federal ERA has been largely stalled since the 1970s, many states have adopted their own versions. New York’s constitution, however, currently bans discrimination based only on race and religion, not sex. That could change if voters accept Prop 1’s expansive vision of equality, which includes protections for segments of the population that historically have been marginalized and demonized, including LGBTQ people.

In a year in which support for abortion rights could determine control of statehouses, Congress, and the presidency, Prop 1 seemed like a shoo-in, especially in the blue state of New York. Yet with a little over a month before the election, the effort to pass the New York ERA has been stumbling. An opposition campaign, calling itself the Coalition to Protect Kids, has fixated on the amendment’s protections for trans people, exaggerating its impact on women’s sports and pushing misleading claims about its effects on parental rights. “By solidifying new constitutional rights based on gender identity, Prop 1 is sacrificing the rights of girls,” Amaya Perez, the New York chapter leader of Gays Against Groomers, a right-wing group known for pushing extremist anti-LBGTQ narratives, said at the press conference. 

Those tactics appear to be working. Leaked polling from the pro-Prop 1 campaign shows that voters find the opposition’s messages extremely persuasive. Months ago, Democrats saw the amendment as a means of motivating liberal turnout in November. Now, state Democratic politics are in a precarious state following the indictment of New York Mayor Eric Adams, and Republican candidates are turning the tables, using opposition to Prop 1 as a rallying cry for their own voters.

“They’re trying to use [trans rights] as a wedge issue,” says Faris Ilyas, policy counsel at the New Pride Agenda, an LGBTQ rights group supporting Prop 1. “Even in New York, it’s a working strategy. We’re a little bit scared of what might happen in November.”

It’s an old trick in conservative politics to argue that equal rights are bad for women. The federal ERA, which says equal rights cannot be denied “on account of sex,” was first drafted by leaders of the women’s suffrage movement in 1923 and introduced in every session of Congress for the next five decades. After it finally passed both the House and Senate in 1972, the next step was to go to the states: An amendment must be ratified by three-quarters of state legislatures before it can be added to the US Constitution. But conservative lawyer Phyllis Schlafly mounted a successful guerrilla campaign claiming the amendment would erase all differences between men and women in the law, thus forcing women into military combat, permitting same-sex marriage, and allowing men to use women’s restrooms. The ERA failed to reach the ratification threshold within the seven-year deadline, though efforts to revive and certify it continue.

Even without the ERA, Schlafly’s predictions have more or less come true: The culture already was shifting toward the kinds of gender equality the amendment attempted to codify. Yet her arguments still hold power. Warnings about mixed-gender bathrooms were used to defeat Houston’s Equal Rights Ordinance in 2015—around the same time conservative legal and political organizations, including the Schlafly-founded Eagle Forum, began whipping up the contemporary anti-trans panic, starting with bills restricting trans students’ bathroom access.

The version of the ERA that will appear on New York ballots doesn’t include the word “abortion,” but it was designed first and foremost to protect the right to choose. The effort started in 2019, when Democrats took control of the state Senate for the first time in a decade. They swiftly passed the Reproductive Health Act, removing abortion from New York’s criminal code—where it had been largely forgotten during the Roe v. Wade era—and protecting access to the procedure through 24 weeks’ gestation. (The new law also allowed abortion later in pregnancy if the fetus was not viable or if the pregnant person’s life or health was in danger.) But soon after, state Sen. Liz Krueger of Manhattan, who had spent a decade shepherding the new law, decided the work wasn’t done. “I realized, nope, not good enough,” Krueger says. “We’ve got to actually start to open up our constitution and modernize it.”

With the confirmation of Justice Brett Kavanaugh to the US Supreme Court in 2018, anti-abortion strategists finally had the far-right majority they needed to overturn Roe. “We were basically a pro-choice blue state with people not really understanding how at risk we were from bad law,” Krueger says. If New York enshrined abortion rights in the state constitution, she figured, those protections would be harder to repeal if the political winds eventually shifted.

So Krueger and Assembly Member Rebecca Seawright, also from Manhattan, convened scholars and reproductive law experts to craft an amendment. Rather than simply writing protections for abortion seekers into the constitution, they decided to swing for the fences: a measure modeled on the federal ERA but even broader. In addition to existing protections for race, color, and religion, Prop 1 would ban government discrimination based on disability, age, ethnicity, national origin, and sex—including sexual orientation, gender identity, and gender expression. The resulting amendment, now known as Prop 1, would make New York’s anti-discrimination protections the “most extensive” in the nation, says Ting Ting Cheng, director of the ERA Project at Columbia Law School, who consulted with the drafters. 

“We were basically a pro-choice blue state with people not really understanding how at risk we were from bad law.”

There are nine other abortion rights ballot initiatives across the country this year, but when it comes to reproductive rights, New York’s ERA is unique. While most of the other measures essentially restore Roe, New York’s approaches abortion “as a matter of gender equality,” says Katharine Bodde, policy co-director of the New York Civil Liberties Union, one of the amendment’s chief backers. To accomplish this, it explicitly says discrimination based on pregnancy status, pregnancy outcomes, and reproductive health care and autonomy count as “sex discrimination” and are forbidden. The idea is to leave little room for judges to interpret the ERA in ways that wouldn’t protect abortion rights or pregnant people in the future. After all, courts have wide latitude to interpret ambiguous language, and they sometimes reconsider their old interpretations—as the US Supreme Court did when it reversed Roe. This past spring, Florida’s Supreme Court overturned a prior decision that said the state constitution protected abortion—after being stacked with judges appointed by Republican Gov. Ron DeSantis. And the Iowa Supreme Court has upheld a six-week abortion ban despite the state’s ERA, which broadly enshrines gender equality but doesn’t get into specifics. “We’re taking no chances in New York with courts interpreting ‘sex discrimination’ narrowly,” Bodde says. 

That scares abortion opponents. New York’s Catholic bishops told their 35,000 mailing list subscribers in September that Prop 1 would “permanently legalize abortion without restriction” and “render impossible any change to the law if the hearts and minds of New Yorkers were ever to shift toward protecting the child in the womb.”

Prop 1 follows an ERA in Nevada two years ago, which passed with 58 percent of the vote after being pitched to the state’s fiercely independent residents as a means of protecting individual liberty. The Nevada ERA overcame opposition from anti-abortion forces—including the religious-right legal firm Alliance Defending Freedom—which predicted that the measure would void Nevada’s ban on Medicaid coverage for abortion. (It was right.) Next up: An expansive ERA is slated for the 2026 ballot in Minnesota, and another is on the table in Oregon. “It’s incremental,” Cheng says. “Every state that does something new, it creates a new bar or a new precedent for other states to go beyond that.”

These amendments work in two ways. First, they harden the state’s existing constellation of anti-discrimination laws by adding them to the state constitution. And second, they give individuals strong constitutional grounds to challenge discrimination by the government. In New York, Prop 1’s  protections for different “pregnancy outcomes” might be used to defend women from criminal prosecution after self-managed abortions or losing a pregnancy in a car accident—both of which have happened in New York, says Dana Sussman, senior vice president of Pregnancy Justice, a nonprofit legal advocacy group. And it might be used to challenge state hospitals that drug test pregnant women, sometimes without their knowledge or consent—policies that can lead to child protection cases and family separation.

Other activists hope the ERA could be used to overturn the state’s 24-week gestational limit, which forces some New Yorkers to travel out of state if—for one of the many reasons women can face delays in accessing care—they need a later abortion. Randi Gregory, vice president of political and legislative affairs at the National Institute for Reproductive Health Action Fund, believes Prop 1 would protect abortion rights “at all trimesters.” “We hope that it will be a framework for other states,” Gregory adds. “We’re really excited to be running an expansive and proactive amendment.”

But that’s only if they can get it passed—a task that looks increasingly daunting.

The coalition behind Prop 1 made big promises in June 2023, after New York Democrats’ embarrassing showing in the 2022 election. Their losses had helped flip control of the US House of Representatives back to the GOP, while former US Rep. Lee Zeldin, an anti-abortion Republican, came within 6 points of winning the governorship.

State Democrats evidently had an excitement problem—one they hoped the ERA could solve. Gov. Kathy Hochul and Sen. Kirsten Gillibrand told the New York Times that they wanted to use the amendment to motivate 2024 turnout. Progressive groups formed New Yorkers for Equal Rights, a committee that pledged to spend $20 million ginning up enthusiasm.

Yet in early September, Politico reported that the committee had raised less than $3 million to counter an opposition that had proven surprisingly well-organized and effective. Suddenly, Democrats were afraid of how Prop 1 might affect their candidates in tight races. In the ensuing scramble, Hochul announced $1 million for TV ads and direct mail and issued a statement: “It’s critical voters know that an abortion amendment is on the ballot in New York this year,” she said. “New Yorkers deserve the freedom to control their own lives and health care decisions, including the right to abortion regardless of who’s in office.”

The opposition campaign, the Coalition to Protect Kids, is largely funded by an upstate anti-abortion activist, Carol Crossed, who is vice president of Feminists Choosing Life of New York. Yet it has leaned heavily on anti-trans rhetoric, arguing the amendment would increase trans people’s access to girls’ sports, women’s bathrooms, and gender-affirming medical care—and that these things would be dangerous. “Anti-abortion extremists are pushing a harmful and cruel agenda,” says Sasha Ahuja, campaign director for New Yorkers for Equal Rights. “They’re lying about a small handful of innocent kids to divide New Yorkers and distract us from what this amendment is actually about: protecting the right to abortion, guaranteeing our personal freedoms, and protecting all of us against government discrimination.”

“They’re lying . . . [to] distract us from what this amendment is actually about: protecting the right to abortion, guaranteeing our personal freedoms, and protecting all of us against government discrimination.”

According to New York politics magazine City & State, internal polling shared with ERA proponents in late August found that 64 percent of voters would definitely, likely, or lean toward voting yes on the amendment when presented with its ballot language. But support plummeted by 24 percentage points after voters heard an attack message focused on girls’ sports, transgender protections, and immigration. (Another blatant lie spread by opponents is that Prop 1 would allow undocumented immigrants to vote.)

Ilyas believes the anti-trans messaging gains credence because many voters don’t have personal experience or relationships with trans people. “When you don’t know a trans person, you have this well-funded messaging at you, and people that you trust are saying the same exact thing and reiterating it, it makes sense for even the average New Yorker who’s middle of the road to believe it,” Ilyas says.

Anti-trans attacks have become a go-to strategy for conservative groups fighting abortion rights ballot initiatives. Opponents to Ohio’s abortion rights measure last year claimed it would permit minors to undergo gender-affirming surgery “without parents’ knowledge or consent” and dubbed it an “anti-parent amendment.” (Such surgeries for minors are very rare, and consent from parents or guardians is required.) In Missouri, a last-ditch lawsuit in September tried to block an abortion rights measure from this fall’s ballot by arguing that it might affect laws around single-sex bathrooms and that the voter petition should have disclosed that. (The state Supreme Court didn’t buy it.)

In New York, Prop 1 supporters have repeatedly pointed out that the amendment says nothing directly about trans participation in sports. In fact, trans inclusion in sports is already New York’s status quo, thanks to existing anti-discrimination laws and a state policy allowing trans students to participate on sports teams matching their gender identity. But like Phyllis Schlafly, Prop 1’s opponents love a dire warning: Lawn signs saying, “Save Girls Sports, Vote No Prop 1,” have become a regular sight in some areas. Republican politicians have been picking up on the theme, including Zeldin, the former congressman, and Gina Arena, a GOP candidate for the state Senate from the lower Hudson Valley.

On Long Island, Nassau County Executive Bruce Blakeman and the Republican-dominated county legislature passed a law this past summer blocking permits for women’s sports teams that include trans women, preventing them from using more than 100 county-run parks and athletics facilities. In response, the New York Civil Liberties Union sued the county on behalf of a women’s roller derby league, citing existing New York civil and human rights laws that forbid discrimination based on gender identity, sex, and disability. If the ERA was in the state constitution, lawyers for the league would doubtless argue that Nassau County had violated it as well. “Transgender athletes have been competing and allowed to compete in the state for a really long time now,” Cheng says. “That’s not going to change because of the ERA.”

“Transgender athletes have been competing and allowed to compete in the state for a really long time now. That’s not going to change because of the ERA.”

Still, uncertainty around which laws the ERA might challenge has been a boon to opponents. On its website, the Coalition to Protect Kids claims that banning age discrimination, for instance, would gut laws governing the drinking age, statutory rape, and parental consent for minors to receive medical treatments—especially gender-affirming care. Bodde dismisses these arguments as “misinformation” meant to “stir fear.” Courts have been clear that constitutional rights apply differently to minors and adults, she says, even despite laws forbidding age discrimination. “The state has long been able to create different rules when it comes to young people, whether that’s ensuring a certain age before people can learn how to drive or vote or purchase alcohol.”

But fear and confusion are powerful tools. Prop 1’s opponents have dubbed the ERA the “Parent Replacement Act.” On social media, the Coalition to Protect Kids has repeatedly cited the American College of Pediatricians, a misleadingly named fringe group of anti-LGBTQ doctors whose frequent declarations against gender-affirming care run counter to the conclusions of dozens of major medical associations. Sometimes the claims slip into self-parody: “If Prop One passes…children will mutilate themselves without the benefit of parental guidance,” reads a mailer sent to voters by the New York Republican State Committee. 

For Ilyas, who is transmasculine, the extremist rhetoric feels very personal—and deeply worrisome. “People don’t think that it could happen in New York, just because it’s New York,” Ilyas says. “These people do exist in New York, and they just maybe haven’t had an outlet.”

Vice President Kamala Harris has lost no time blaming former President Donald Trump for the death of a single mother in Georgia after hospital doctors, working under the constraints of an abortion ban, delayed treating her catastrophic infection.

The story of Amber Nicole Thurman’s death in August 2022—and its connection to the six-week abortion ban enacted in Georgia the month before she died—was first reported by ProPublica’s Kavitha Surana. While doctors, patients, and reproductive justice advocates have long warned that abortion bans were causing profound disruptions and delays in healthcare for pregnant women, Thurman’s is the first death to come to public attention.

“This young mother should be alive, raising her son, and pursuing her dream of attending nursing school,” Harris said in a statement reported by the Associated Press. “Women are bleeding out in parking lots, turned away from emergency rooms, losing their ability to ever have children again. Survivors of rape and incest are being told they cannot make decisions about what happens next to their bodies. And now women are dying.”

“This young mother should be alive, raising her son, and pursuing her dream of attending nursing school.”

“These are the consequences of Donald Trump’s actions,” Harris added.

Later on Tuesday, during a interview moderated by the National Association of Black Journalists and WHYY public radio station in Philadelphia, Harris once again drew a link between Thurman’s death and Trump. “Over 20 states have passed what I call ‘Trump abortion bans,’ because I understand how we got here,” Harris told an audience of journalism students from historically Black colleges and universities. “The former president handpicked three members of the United States Supreme Court with the intention they would undo the protections of Roe v. Wade. They did as he intended, and in state after state, laws have been passed criminalizing health care providers.”

The doctors who delayed Thurman’s care were operating under these laws, Harris pointed out. “It appears the people who should have given her health care were afraid they’d be criminalized after the Dobbs decision came down,” she said.

According to ProPublica, Georgia’s ban on abortions after six weeks affected Thurman in multiple ways. When Thurman discovered she was pregnant with twins in July 2022, she was just over the gestational limit. Because the 28-year-old medical assistant could not get an abortion near where she lived, she had to drive four hours with a friend to North Carolina. Then, stuck in traffic, she missed her appointment for a surgical abortion using a technique called dilation and curettage (D&C), so the clinic instead gave her medication to end her pregnancy and sent her home. The distance meant that days later, when Thurman began experiencing a rare complication from the medication abortion—her body hadn’t expelled all the fetal tissue, putting her at risk of a dangerous infection—she couldn’t go back to the provider for a free D&C. Only when her condition deteriorated did she end up going to a hospital outside Atlanta.

There, her blood pressure falling and organs failing, Thurman was diagnosed with “acute severe sepsis.” But physicians waited 20 hours to operate. The hospital and doctors did not respond to ProPublica’s requests for comment. But the delays mirror many other stories about abortion bans leading to dangerous disruptions in pregnancy care since the Supreme Court overturned Roe. Physicians afraid of being prosecuted have raised alarms about the laws’ hard-to-interpret exceptions: How close to death does a pregnant patient have to be in order for them to perform emergency abortion?

Thurman ultimately died in the operating room. A Georgia state committee tasked with reviewing maternal deaths found that the delay in providing the D&C had a “large” impact on her death, and they deemed it “preventable,” according to ProPublica.

Harris’ attention to Thurman’s story is no surprise given her reputation as a forceful defender of abortion rights on the campaign trail and in her debate against Trump. But her attention to pregnancy-related deaths—which are far more common in the United States than in other high-income countries—dates back years. In the Senate, Harris focused on reducing maternal mortality for Black women like Thurman, who are 2.6 times more likely to die of pregnancy-related causes than white women, according to 2022 CDC data. In 2018, she sponsored a resolution recognizing “Black Maternal Health Week” and introduced the Maternal CARE Act to create a grant program to address racial bias in obstetrics and gynecology. As vice president, she pushed efforts to expand postpartum Medicaid coverage from 60 days to 12 months.

“For years, I have worked to make sure our country treats maternal mortality as the national crisis it is,” Harris wrote in 2022, prefacing a 50-point plan to use government agencies to lower maternal deaths. “I am proud to lead our Administration’s efforts to address this issue.”

Reproductive justice advocates have been warning for more than two years that the end of Roe v. Wade would lead to surge in maternal mortality among patients denied abortion care—and that the increase was likely to be greatest among low-income women of color. Now, a new report by ProPublica has uncovered the first such verified death. A 28-year-old medical assistant and Black single mother in Georgia died from a severe infection after a hospital delayed a routine medical procedure that had been outlawed under that state’s six-week abortion ban.

Amber Nicole Thurman’s death, in August 2022, was officially deemed “preventable” by a state committee tasked with reviewing pregnancy-related deaths. Thurman’s case is the first time a preventable abortion-related death has come to public attention since the Supreme Court overturned Roe, ProPublica‘s Kavitha Surana reported.

Now, “we actually have the substantiated proof of something we already knew—that abortion bans kill people.”

Now, “we actually have the substantiated proof of something we already knew—that abortion bans kill people,” said Mini Timmaraju, president of the abortion-rights group Reproductive Freedom for All, during a call with media. “It cannot go on.”

Thurman is almost certainly not the only person to have died as a consequence of an abortion ban, even if her case is the first to be officially confirmed. As ProPublica noted, that’s because investigations of maternal deaths often don’t happen until years later:

Committees like the one in Georgia, set up in each state, often operate with a two-year lag behind the cases they examine, meaning that experts are only now beginning to delve into deaths that took place after the Supreme Court overturned the federal right to abortion.

Earlier this year, the New Yorker reported on the story of Yeniifer Alvarez-Estrada Glick, a 29-year-old woman in Texas who died in July 2022 from complications of a high-risk pregnancy. In that case, medical records did “not suggest any discussion of the fact that an abortion could have alleviated the additional strain that the pregnancy placed on her heart,” the New Yorker reported.

According to ProPublica, Thurman had decided to get an abortion after learning she was pregnant with twins. But the very day she passed the six-week mark of her pregnancy, Georgia implemented a ban forbidding abortion after six weeks’ gestation—as the Supreme Court allowed states to do when it overturned Roe earlier that summer. So Thurman traveled four hours to an abortion clinic in North Carolina, where abortions were then allowed past 20 weeks. There she was given mifepristone and misoprostol, a two-drug regimen used to end pregnancies.

A few days after she took the pills, Thurman’s pain became excruciating, and she was bleeding through a pad every hour. Complications from abortion pills are rare, but sometimes patients require a procedure called dilation and curettage, or D&C, to remove remaining fetal tissue from the uterus that could lead to life-threatening sepsis. The North Carolina clinic would have performed the D&C for free if Thurman lived closer, ProPublica said. Instead, after vomiting blood and passing out at home, Thurman was brought to the hospital in the Atlanta suburbs, where doctors noted signs of an infection. According to ProPublica,

The standard treatment of sepsis is to start antibiotics and immediately seek and remove the source of the infection. For a septic abortion, that would include removing any remaining tissue from the uterus. One of the hospital network’s own practices describes a D&C as a “fairly common, minor surgical procedure” to be used after a miscarriage to remove fetal tissue.

But because D&Cs can be used to perform abortions, physicians operating under an abortion ban can be slow to provide them even for miscarriages and other emergency situations, as illustrated in a recent report on post-Roe disruptions to pregnancy care in Louisiana. Not until 2 p.m. the day after Thruman entered the hospital was she brought for surgery. She died in the operating room. The Georgia maternal mortality review committee found that if a D&C had been performed earlier, there was a “good chance” her death could have been prevented, ProPublica reports.

“These devastating bans did not only block Amber, and many others, from accessing abortion care in her state, they also delayed the routine life-saving care she later needed, leaving her to suffer and die,” Timmaraju said during the press call on Monday.

While every state abortion ban contains exceptions to save the life of the pregnant person, uncertainty among medical providers over exactly when doctors can step in without fear of being prosecuted has led to delays in medical care for pregnant woman across the country, with devastating consequences.

On the call with reporters, leaders of reproductive justice organizations pointed to the way bans and delays in emergency medical care for pregnant people disproportionately impact Black women. Black women are about 2.6 times more likely to die from a pregnancy-related cause than white women, according to the Centers for Disease Control and Prevention.

“Reproductive justice is not just about abortion access, but also about the broader right to quality, comprehensive, full-range, culturally humble care, life saving health care for all of us,” said KR Redman, executive director of SPARK, a reproductive justice group in Georgia. “Amber’s case is just an example of the ongoing systemic negligence that continues to claim the lives of Black folks.”

More than two years since the overturn of Roe v Wade, legal battles over abortion laws are as chaotic as ever. But occasionally, the challenges playing out state by state result in a string of good news for abortion rights. That was the case this week, with a cluster of court decisions that will expand abortion access in Nevada and North Dakota, and allow Missouri and Nebraska voters to weigh in on the issue in November.

On Thursday, District Court Judge Bruce Romanick in Bismarck, North Dakota, issued a powerful opinion siding with abortion providers who challenged a state law that had deemed their practice a felony.

In his order, which takes effect in two weeks, Rominick ruled that the North Dakota constitution’s protections for life, liberty, and the right to pursue happiness include the right to choose abortion. “A woman’s choice of whether or not to carry a pregnancy to term shapes the very nature and future course of her life, on nearly every possible level,” he wrote. “The Court finds that such a choice, at least pre-viability, must belong to the individual woman and not to the government.” He also struck down the ban for its vagueness, concluding that, at present, North Dakota doctors could be prosecuted if other physicians second-guessed their decision to provide an emergency abortion.

Virtually all abortions have been illegal in North Dakota since April 2023, when Republican Gov. Doug Burgum signed a ban with exceptions only to save the life of the pregnant person, or for rape and incest survivors within the first six weeks of pregnancy. North Dakota’s only abortion clinic moved across the state line to Minnesota in 2022, soon after the Supreme Court overturned Roe v. Wade, meaning most people seeking to end a pregnancy will have to leave the state.

But Romnick’s decision should make it easier for doctors to provide emergency abortions to patients with severe pregnancy complications—care that that is often withheld in abortion-ban states, with dire consequences. “It is now much safer to be pregnant in North Dakota,” Center for Reproductive Rights lawyer Meetra Mehdizadeh said in a statement on Friday.

Also on Thursday, a Nevada court order requiring the state Medicaid program to cover abortion became final after the state government declined to appeal an earlier ruling. Nevada will become the 18th state to allow Medicaid funds to cover abortion, the Associated Press reported.

That ruling is the result of a challenge brought under Nevada’s Equal Rights Amendment, which added language banning sex discrimination, along with many other types of discrimination, to the state constitution. Voters there supported the ERA by a nearly 18-point margin in 2022.

In their lawsuit, a Nevada abortion fund and the ACLU argued that the ban on Medicaid coverage amounted to sex discrimination because it denied low-income Nevadans who can become pregnant the ability to make decisions about their future. Back in March, a Clark County District Judge Erika Ballou had agreed—though her decision didn’t become final until this week.

”There was a time when we got it wrong and when women did not have a voice,” one judge wrote. “This does not need to continue for all time.”

“The court made clear that the state cannot withhold coverage for essential, sex-linked health care from low-income Nevadans,” ACLU Reproductive Freedom Project staff attorney Rebecca Chan explained in a statement. “As a result of this decision, Nevadans who have Medicaid as their health insurance will no longer need to fear that they will be forced to carry a pregnancy against their will.”

In November, voters in New York will decide whether to enshrine an ERA of their own—one of 10 states with abortion-related initiatives slated for the 2024 ballot. Yet initiatives in two of those states were in jeopardy until courts came to their rescue this week. On Tuesday, the Missouri Supreme Court threw out a last-minute claim arguing that the text of an abortion-rights initiative petition had omitted details required by state law; it ordered the anti-abortion secretary of state to certify the initiative for the ballot.

On Friday, the Nebraska Supreme Court ruled that dueling initiatives can appear on the ballot in that state, where current law bans abortion after 12 weeks. One of the initiatives, titled “Protect the Right to Abortion,” would create a state constitutional right for Nebraskans to get an abortion prior to “viability” (the hard-to-pinpoint moment in pregnancy when a fetus is able to survive outside the uterus). The other, titled “Protect Women and Children” would enshrine the current 12-week abortion ban in the state constitution.

If both pass, the one with the most votes prevails. But anti-abortion advocates had tried to kill the pro-abortion rights measure altogether by arguing that by regulating abortion before and after viability differently, it dealt with more than one subject, according to the Nebraska Examiner. Friday’s state Supreme Court ruling tossed that challenge, and ensures the vote on both questions will proceed.

Now, with 52 days left before voters will decide whether to add abortion protections to their state constitutions, the opinion from North Dakota’s Judge Rominick could offer some guidance.

“If we can learn anything from examining the history and prior traditions surrounding women’s rights, women’s health, and abortion in North Dakota, the Court hopes that we would learn this: that there was a time when we got it wrong and when women did not have a voice,” Rominick wrote. “This does not need to continue for all time, and the sentiments of the past, alone, need not rule the present for all time.”