AN OVERVIEW OF U.S. ABORTION LAW
During the past 50 years, the Supreme Court of the U.S. (SCOTUS) has superseded states as the driving force in crafting abortion policy. On June 24, 2022, a decision was handed down by an ideological court to overturn protections and send decision making back to the states.
In the 1973 Roe v. Wade decision, the court established:
- In the first trimester (up to 14 weeks), state laws cannot interfere with a woman’s right to end a pregnancy; decisions are left to a woman and her medical provider.
- During the second trimester (14 to 24 weeks), state laws may regulate abortion procedures only in order to protect the woman’s health.
- During the third trimester (after 24 weeks), state laws may prohibit abortion except when it is necessary to preserve the life or health of the woman.
The 1992 Planned Parenthood of SE Pennsylvania v. Casey case, the Court established:
- States can restrict abortions, even in the first trimester, as long as restrictions do not place “undue burden” on women.
The 2016, Whole Women’s Health v. Hellerstedt case confirmed that compounding effects of multiple restrictions unfairly singled out abortion providers.
In 2021, SCOTUS failed to block a Texas ban on abortions when cardiac motion can be detected (roughly 6 weeks). As a result, the law went into effect, prohibiting most abortions in Texas, with other states following suit.
In 2021, a conservative activist SCOTUS heard oral arguments in Dobbs v. Jackson Women’s Health Organization, a direct challenge to Roe v. Wade. The case evaluated an unconstitutional Mississippi law that ignores established precedent to ban abortion > 15 weeks of pregnancy.
In June 2022, the US Supreme Court with a conservative majority overturned Roe v. Wade, with detrimental consequences for people seeking abortion care in many states. It is likely or certain that abortion will be banned in 26 U.S. states, including 13 states that triggered immediately. Current and anticipated changes in laws by state and territory are in the map below, current as of June 2022, at the courtesy of the Center for Reproductive Rights, where interactive versions are available.
U.S. Abortion Laws After Roe
U.S. LAW AND POLICY HIGHLIGHTS
Abstracted from Guttmacher Institute’s Overview of Abortion Law, June, 2022. (Note: Numbers accurate as of publication date and may change with pending cases and legislation.)
Record numbers of restrictive state laws were passed in the last decade.
- State Bans Throughout Pregnancy: 43 states prohibit abortions after a specified point in pregnancy, more than half prohibit abortion before fetal viability. Currently, 6 states have outright bans on all abortions, 3 states have 6 week bans. Most provide exceptions to protect the patient’s life or health.
- Public Funding: The Hyde Amendment bars use of federal funds to pay for abortion unless pregnancy arises from incest or rape, or to save patient’s life, which impacts communities of color disproportionately covered by public funding. 16 states use their own funds to pay for all or most medically necessary abortions for Medicaid enrollees in the state. 33 states and the District of Columbia prohibit the use of state funds except in those cases when federal funds are available: where the patient’s life is in danger or the pregnancy is the result of rape or incest. In defiance of federal requirements, South Dakota limits funding to cases of life endangerment only.
- Coverage by Private Insurance: 12 states restrict coverage of abortion in private insurance plans, most often limiting coverage only to when the patient’s life would be endangered if the pregnancy were carried to term. Most states allow the purchase of additional abortion coverage at an additional cost.
- State-Mandated Counseling: 18 states mandate that individuals be given counseling before an abortion that includes information on at least one of the following: the purported link between abortion and breast cancer (5 states), the ability of a fetus to feel pain (13 states) or long-term mental health consequences for the patient (8 states).
- Waiting Periods: 25 states require a specified waiting period, usually 24 hours, though 6 states require 72 hours; 12 of these require two separate clinic trips because the counseling must take place in person.
- Medically Unnecessary Ultrasound: 14 states require an ultrasound prior to an abortion regardless of medical necessity. In several states, patients are forced to view and listen to descriptions of ultrasound images despite their wishes.
- Parental Involvement: 37 states require parental involvement in a minor’s decision to have an abortion; 27 require parental consent, while 10 require that one or both parents be notified.
- Targeted Regulation of Abortion Providers (TRAP): 24 states regulate abortion providers beyond what is necessary to ensure patients’ safety; 17 of these even apply to sites where only medication abortion is provided. 14 states require providers to have hospital affiliation.
- Telemedicine MAB Banned: 18 states ban use of telemedicine for medication abortion.
- Refusal: 45 states allow individual health care providers to refuse to participate in an abortion. 42 states allow institutions to refuse to perform abortions, 16 of which limit refusal to private or religious institutions. 12 states allow institutions or providers including pharmacists to refuse to provide services related to contraception alone.
- Physician Requirements: A number of states have changed their physician requirements, such that 22 states allow APCs to provide medication abortion, and 20 of these also allow APCs to provide aspiration abortion (Taylor 2023).
- Hospital Requirements: 19 states require an abortion to be performed in a hospital after a specified point in the pregnancy, and 17 states require the involvement of a second physician after a specified point.
- Gag Rule: Prohibits clinics that receive federal funding from providing referrals for abortions or providing options counseling.
- Protection Against Clinic Violence: The Freedom of Access to Clinic Entrances (FACE) Act is a federal law that was enacted in 1994 to protect clinics, medical personnel, and patients seeking reproductive health care against blockades and violence. Sixteen states and the District of Columbia have passed similar laws to prohibit specific actions or provide protected “bubble zones” outside of clinics.
- Federal Abortion Ban: In 2007 the “so-called Partial Birth Abortion Ban” Act was upheld. This decision retreats from an unbroken line of precedent that a woman’s health must remain the paramount concern in any abortion regulation, as it includes no health exception.