Federal Abortion Law: State Override?

The topic of whether federal law can override state law on abortion is a highly contested issue in the United States. The Supreme Court's decision in Dobbs v. Jackson Women's Health Organization overturned Roe v. Wade, which had federally protected abortion rights. Following this, states have been divided into abortion deserts and abortion havens, with almost half of them seeking to restrict abortion access or prohibit it altogether. Federal intervention may be constitutionally justified in certain circumstances, such as protecting the privacy of reproductive health data or invalidating burdensome licensure rules for abortion providers. However, the Biden administration has acknowledged the executive branch's limitations in subverting the Supreme Court's decision. Existing federal laws and regulations, such as the Emergency Medical Treatment and Labor Act (EMTALA), can potentially override state abortion restrictions, but the success of legal challenges based on preemption remains uncertain.

Can federal law override state law on abortion?

The Hyde Amendment

In 1993, the Clinton Administration expanded the Amendment to include exceptions for rape and incest cases. The Hyde Amendment has had a significant impact on abortion access, particularly for those with Medicaid coverage. It has also influenced other bans and restrictions on abortion funding, such as those for federal workers, women in federal prisons, women in the military, and international family planning programs.

State-by-state abortion restrictions

Federal law can and does override state law on abortion, as seen in the case of Roe v. Wade, which protected the federal constitutional right to abortion and prevented states from restricting abortion. However, in June 2022, the US Supreme Court overturned Roe v. Wade, leaving abortion policies and reproductive rights in the hands of individual states.

• Restricting insurance coverage for abortion and comprehensive insurance coverage for those seeking abortions.
• TRAP laws, which are targeted restrictions against abortion providers.
• Mandatory ultrasounds, waiting periods of up to three days, and biased counseling before the procedure, which can entail multiple trips to the provider.
• Gestational duration limits, which use the length of time a person has been pregnant to define arbitrary timelines for abortion bans. Most state abortion statutes refer to "probable gestational age," typically determined by the number of weeks since the last menstrual period (LMP).
• Viability, a non-medical term describing when a fetus can survive outside the uterus, is used to define limits on abortion.
• Bans on non-surgical abortions.

The impact of these restrictions falls disproportionately on marginalized groups, including people with low incomes, who may not have the resources to travel long distances or navigate other hurdles created by anti-abortion laws. As a result, millions of people are forced to travel to receive legal care, and many are unable to access abortion services due to financial and logistical barriers.

Federal intervention

The topic of abortion has been a highly debated and controversial topic in the United States for decades. With the recent overturning of Roe v. Wade by the Supreme Court, the legality of abortion has been left to individual states, leading to a patchwork of varying laws and restrictions across the country. While some states have moved to protect abortion rights, others have enacted complete bans, creating "abortion deserts" where access to abortion services is extremely limited or non-existent.

In the context of federal intervention, it is important to note that there is currently no constitutional authority for a national abortion law. The Biden administration has acknowledged that the executive branch cannot unilaterally subvert the Supreme Court's decision in Dobbs v. Jackson Women's Health Organization. However, federal intervention may still play a role in certain circumstances.

One example of federal intervention is the Hyde Amendment, which withholds federal Medicaid funding from abortion nationwide, with very few exceptions. This restriction disproportionately impacts low-income individuals, interfering with their access to safe and legal abortion services. Another instance of federal involvement is the Food and Drug Administration (FDA), which has approved the use of abortion medication up to 10 weeks into a pregnancy, conflicting with state statutes that ban medication abortion after seven weeks. These types of discrepancies between federal and state laws can lead to legal challenges that may ultimately invalidate certain state abortion restrictions.

Additionally, federal intervention could be constitutionally justified in specific scenarios, such as when state abortion regulations interfere with cross-border shipments of drugs, punish victims of rape or incest, discriminate against protected classes, or prohibit life-saving operations for pregnant individuals. Federal action could also include invalidating burdensome licensure rules for abortion providers, leasing federal property to providers, and overriding the Hyde Amendment to allow funding for low-income individuals seeking interstate abortions.

While the federal government may not have the authority to create a nationwide legal framework for abortion, there are mechanisms through which it can influence and challenge state abortion laws. These include preemption, where federal laws take precedence over conflicting state laws, and legal challenges based on constitutional justifications.

The Women's Health Protection Act

In the United States, abortion laws and policies have been rapidly changing since the Supreme Court overturned Roe v. Wade, leaving the legality of abortion to individual states. As a result, abortion bans and restrictions vary from state to state, with some states having amended their constitutions to declare that they do not protect abortion rights or allow public funding for abortions. This has led to restricted access to abortion, particularly for people with low incomes, who may not have the resources to overcome the obstacles posed by anti-abortion laws.

Specifically, the WHPA would protect the right to access abortion free from medically unnecessary restrictions and bans, such as mandatory waiting periods, biased counseling, two-trip requirements, and mandatory ultrasounds. It would create a statutory right for healthcare providers to offer abortion services and for patients to receive those services without bans or restrictions that single out abortion and impede access. The act also addresses the harmful stereotypes and misogyny that underpin restrictions on abortion services, which undermine the autonomy, dignity, and equality of those seeking abortions.

The WHPA is necessary to ensure that all individuals, regardless of their background, have the power and resources to make decisions about their bodies, health, and lives. By addressing restrictions on reproductive health, the act seeks to dismantle systems of oppression, lack of bodily autonomy, white supremacy, and anti-Black racism. Furthermore, the WHPA recognizes the right to interstate travel for abortion services and prohibits governments from implementing measures that impede access to abortion, unless they significantly improve safety or patient health without more restrictive alternatives.

State constitutions and abortion rights

The US Supreme Court's decision in Dobbs v. Jackson Women's Health Organization in 2022 overturned Roe v. Wade, the 1973 ruling that had legalised abortion nationwide. This ruling has left the legality of abortion to individual states.

State constitutions and courts have become more important than ever in protecting abortion rights. Some states have amended their constitutions to declare that they do not contain any protection for abortion rights or allow public funds to be used for abortions. On the other hand, some states have approved laws to protect abortion rights without relying on the Roe decision. Most of these policies prohibit the state from interfering with the right to obtain an abortion before foetal viability or when necessary to protect the life or health of the pregnant person. They also offer legal protections for abortion providers and, in some cases, individuals who support patients.

Four states have passed a constitutional amendment explicitly declaring that their constitution does not secure or protect the right to abortion or allow the use of public funds for abortion. Seventeen states and the District of Columbia have laws that protect the right to abortion. Three states have protections for the right to abortion in their state constitutions. Four states and the District of Columbia have codified the right to abortion throughout pregnancy without state interference. Twelve states explicitly permit abortion before foetal viability or when necessary to protect the life or health of the pregnant person. Eleven states and the District of Columbia have protections for abortion providers, and in some cases, individuals who support patients, from the reach of out-of-state abortion restrictions and bans.

Some states have "'shield'" laws that limit the negative effects of out-of-state abortion restrictions and bans on abortion providers in the state. These protections also extend to individuals who provide information on abortion and logistical and financial assistance to patients.

State courts have built a foundation of jurisprudence that recognises strong personal privacy and autonomy rights, equality principles, and the deeply rooted nature of abortion protection. For example, in July 2022, a report titled "State Constitutions and Abortion Rights: Building protections for reproductive autonomy" outlined ten states in which high courts recognised that their state constitutions protect abortion rights and access independently from and more strongly than the US Constitution.

Frequently asked questions