Broad support for abortion rights continued to defy partisan labels in the Nov. 5 election, but several of the voter-approved ballot measures could face legal and legislative challenges in the months to come. And advocates worry that federal efforts could eventually trump state measures.

Voters in seven states – including Missouri and Montana – chose to protect or expand access to abortion through ballot initiatives.

“This won’t be the last time Missourians vote on so-called ‘reproductive rights,'” said Missouri Republican Sen. Mary Elizabeth Coleman, who opposed the ballot measure. wrote in a press release. “I will do everything in my power to ensure the vote takes place.”

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

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

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

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

Some abortion rights supporters worry that without a federal constitutional right to abortion, which the U.S. Supreme Court struck down in its 2022 Dobbs ruling, new state-level protections will be vulnerable to federal measures that could cancel them.

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

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

President-elect Donald Trump has about-face on abortion and other reproductive rights, boasting for years that his appointments 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 strict” and would be “redone”.

“Unfortunately, we are in a position where even if your state has passed strong 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 long-dormant 1873 law that they say could be used to make it a federal crime to send or receive abortion pills through the mail.

The Trump administration could also roll back a current federal Food and Drug Administration policy that allows abortion medications to be mailed. And when the U.S. Supreme Court earlier this year rejected a case involving the FDA’s regulation of the abortion drug mifepristone, it left the door open for the challenges ahead. At the same time, some states have laws limiting access, such as requiring in-person medical visits for abortifacient medications, thus preventing patients from accessing them via telemedicine.

“I don’t want people to think that because they voted ‘yes’ to protect reproductive rights that there will be a magic wand to restore those rights,” said Chris Melody Fields Figueredo, executive director of the Ballot Initiative Strategy Center, which supports progressive ballot initiatives nationwide.

“They are going to have to step up their efforts and fight to make sure people get the reproductive care they need and deserve.” »

In addition to Missouri and Montana, which are reliably red, voters also approved abortion rights measures Tuesday in the presidential battlegrounds of Arizona and Nevada and Colorado, Maryland and from New York, solidly blue. 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 — had supported abortion rights when asked abortion-related election questions.

But Tuesday’s election marked the first time since the fall of Roe v. Wade that ballot measures supporting abortion rights failed: Voters rejected 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 required for passage.

Questioning viability

Ballot measures in Arizona, Missouri and Montana establish the right to abortion up to “fetal viability.” It’s a term that lacks precision. medical or legal definition, and thanks to medical advances over the years, viability has evolved earlier in pregnancy. Today, this 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 regarding the ‘fetal viability’ aspect of these amendments.”

For example, she said, state lawmakers could try to restrict abortions by defining “fetal viability” in state law in such a way that it could create doubt in the minds of providers as to whether whether a patient’s pregnancy meets the state’s requirements for 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 remove the measure from the ballot, although the court declined to do so.

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

“Personality” and parental rights

The concept of “fetal personhood” could also be used to circumvent state constitutional amendments on abortion. Long 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 people, abortion would be considered murder.

Missouri State Rep. Brian Seitz, a Republican, told Stateline in July that he plans to introduce a bill on fetal personality in the next legislative session, which would grant “unborn children” the same rights as newborns. He hoped the bill could protect embryos and fetuses, even whether or not Missourians passed a constitutional amendment guaranteeing the right to abortion.

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 bills restrict access to abortion, birth control, and other reproductive health care for people under 18. argue Such laws are necessary to protect the rights of parents and to prevent other adults from persuading adolescent girls to have abortions.

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

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

“In red states where the pressure is strong enough, the anti-reproductive freedom movement is a big machine with a strong foundation, and they are ready to fight,” she said.

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