Broad support for abortion rights continued to defy partisan labels in the Nov. 5 election, but several of the ballot measures approved by voters may face legal and legislative challenges in the coming months. And advocates fear that federal efforts could trump state measures.

Voters in seven states, including Missouri and Montana, have chosen to protect or expand access to abortion through ballot initiatives.

“This will not be the last time Missourians vote on so-called ‘reproductive rights,'” Republican state Sen. Mary Elizabeth Coleman, who opposed the ballot measure, he wrote in a press release. “I will do everything in my power to make sure the vote happens.”

In Missouri and Arizonaballot measures will expand access to abortion beyond what state laws currently allow. Although these constitutional amendments are set to take effect in the coming weeks, it is unlikely that abortion will become immediately accessible in those states because abortion rights advocates will have to go to court to overturn the existing laws.

Additionally, anti-abortion groups and their legislative allies in recent years have worked to undermine abortion protections through laws and court challenges based on concepts such as fetal personhood, parental rights, and fetal viability. These efforts could limit the impact of the new ballot measures.

Supporters of the Missouri measure anticipate continued opposition. Mallory Schwartz, executive director of Abortion Action Missouri, told a crowd celebrating on election night that “anti-abortion, anti-democracy politicians are going to try to take us out.” according to the Missouri Independent.

“They’re going to try to fight us in court and they’re going to file new charges in Jefferson City,” Schwartz said.

Some abortion rights advocates worry that without a federal constitutional right to abortion, which the U.S. Supreme Court struck down in its 2022 Dobbs ruling, the new state-level protections are vulnerable to federal moves that could override them .

After the Dobbs decision, the Biden administration he took several steps to protect access to birth control, abortion drugs, and emergency abortion care in hospitals.

But Nourbese Flint, president of the abortion rights group All* In Action Fund, said the incoming Trump administration could restrict access even in states that have abortion rights measures.

President-elect Donald Trump has flip-flopped about abortion and other reproductive rights, bragging for years that his nominations to the U.S. Supreme Court led to the Dobbs decision — then telling Fox News viewers last month that some state abortion laws were “too harsh” and they will be “remade”.

“Unfortunately, we’re in a position where, even if your state has passed excellent legislation, real, tangible access to medication abortion may be more difficult” in the future, Flint said.

Some anti-abortion groups want the Trump administration to implement the Comstock Act, a lengthy 1873 law that they believe could be used to make it a federal crime to send or receive abortion pills through the mail.

The Trump administration could also reverse a current policy under the federal Food and Drug Administration that allows abortion drugs to be mailed. And when the US Supreme Court rejected a case earlier this year involving the FDA’s regulation of the abortion drug mifepristone, he left the door open for future challenges. Meanwhile, some states have laws that limit access, such as that require in-person doctor visits for abortion drugs, effectively preventing patients from accessing them via telemedicine.

“I don’t want people to think that just because they voted yes to protect reproductive rights, there’s going to be a magic wand to restore those rights,” said Chris Melody Fields Figueredo, executive director of the Initiative’s Strategy Center of Voting, which supports progressive voting initiatives at the national level.

“They will have to double down and fight to make sure people get the reproductive care they need and deserve.”

In addition to reliably red Missouri and Montana, voters on Tuesday also approved abortion rights measures in the presidential battlegrounds of Arizona and Nevada and blue Colorado, Maryland and New York. In Nevada, voters will have to approve the amendment again in 2026 for it to take effect.

Before last week, voters in six states — including conservative Kansas and Kentucky — supported abortion rights when presented with abortion-related ballot questions.

But Tuesday’s election marked the first time since Roe v. Wade in which abortion rights ballot measures failed: Voters defeated proposed amendments in Nebraska and South Dakota. And in Florida, 57 percent of voters supported an abortion rights amendment, but it fell short of the 60 percent supermajority needed for approval.

Questioning viability

Ballot measures in Arizona, Missouri and Montana establish abortion rights up to “fetal viability.” It is a term that lacks an exact medical or legal definition, and due to medical advances over the years, viability has moved earlier in pregnancy. Today, it is generally considered to be around 23 or 24 weeks of pregnancy.

“‘Fetal viability’ is not a legal term,” said Dale Margolin Cecka, director of the Family Violence Litigation Clinic at Albany Law School and a former Georgia assistant attorney general. “Even in states that have now amended their constitutions (to allow abortion), I can foresee challenges to the ‘fetal viability’ aspect of those amendments.”

For example, she said, state lawmakers could try to restrict abortions by defining “fetal viability” in state law so as to create doubt in providers’ minds about whether a patient’s pregnancy meets the state’s requirements for a legal abortion.

In the days leading up to the election, Florida Attorney General Ashley Moody, a Republican, used the vagueness of the “viability” standard. in Florida’s proposed abortion amendment to ask the state’s highest court to keep the measure off the ballot, though the court declined to do so.

In Montana, where abortion was already legal until fetal viability under a 1999 state Supreme Court ruling, the new constitutional amendment strengthens that protection by defining fetal viability. The amendment says viability should be based on “the good faith judgment of a health care professional and the particular facts of the case.”

“Personhood” and parental rights

The concept of “fetal personhood” could also be used to circumvent state constitutional amendments on abortion. A cornerstone of the anti-abortion movement, fetal personhood is the idea that a fetus, embryo, or fertilized egg has the same legal rights as a person who has been born. If state law considers fetuses to be human, it is believed that abortion would be considered a crime.

Missouri state representative Brian Seitz, a Republican, told Stateline in July that he plans to introduce it a fetal personhood bill in the upcoming legislative session that would give “unborn children” the same rights as newborns. His hope was that the bill could protect embryos and fetuses regardless of whether Missourians passed a constitutional amendment guaranteeing abortion rights.

Cecka also expects to see state lawmakers continue to test abortion protections with so-called parental rights laws. Since Dobbs, conservative lawmakers in several states have filed parental consent invoices to restrict access to abortion, birth control, and other reproductive health care services for people under 18. argues such laws are needed to protect parents’ rights and to prevent other adults from persuading teenagers to have abortions.

The lawsuit filed last week by Missouri reproductive care providers to overturn several of Missouri’s restrictive abortion laws after the constitutional amendment passed do not dispute state parental consent law.

In Cecka’s view, access to abortion remains at risk, even in states that have passed protective laws, unless federal protections are put in place.

“In the red states where there’s a strong enough force, the anti-reproductive freedom movement is a big machine with a deep bench, and they’re ready to fight,” she said.

Stateline is part of The editorial office of the Statesa national nonprofit news organization focused on state politics. ©2024 State Newsroom.