Yet we see another trend emerging that might thwart this shift in power to the people. A new set of judges stands ready to step in to once again strike down abortion regulations. These judges are not federal but state judges. Pro-choice groups such as Planned Parenthood will try to win state-level versions of Roe and Casey. Since Dobbs declared that abortion is not a judicially enforceable right found in the Constitution, pro-choicers will make the case that state constitutions protect abortion. State voters, legislators, and governors, then, may run up against roadblocks in the mission to restrict abortion.

In fact, the Kansas Supreme Court made that move back in 2019, three years before Dobbs. It found that Kansas’s constitution not only protected the right to abort an unborn child but that the state constitution provided more protection for abortion than the Supreme Court had claimed existed in the U.S. Constitution. Thus, even though Roe and Casey have fallen, Kansas still cannot act to protect unborn children. Planned Parenthood now will hope for similar results in other states.

The judicial battle over abortion in state constitutions will spread across the country over the next few years. Already, a judge in Utah and one in Louisiana have stayed the implementation of those states’ abortion restrictions. Planned Parenthood, which filed the Utah suit, looked to that state’s equal rights amendment to support a state-level abortion right. A lower-court judge in Michigan recently came to the same conclusion about that state’s constitution. The news isn’t all one-way, though. Iowa’s Supreme Court recently found no such right in its governing document, permitting the state governor and legislature to act as they saw fit after Dobbs’s release.