Federal Law And Post-Viability Abortion: What's The Verdict?

The United States Supreme Court's 2022 decision to overturn Roe v. Wade has had a profound impact on abortion rights, effectively eliminating the federal constitutional right to abortion. This ruling has shifted the legal oversight of abortion to individual states and territories, allowing them to set strict legal parameters and restrictions. While the concept of viability is often used to define abortion restrictions, it is important to note that viability refers to the point at which a fetus can survive outside the womb, typically between 24 and 26 weeks. This has raised the question of whether federal law can restrict post-viability abortions and how these laws may vary across different states.

The Supreme Court's overturning of Roe v. Wade

The decision has resulted in a divided landscape, with "abortion deserts" and "abortion havens". Almost half of the states are expected to enact highly restrictive laws or enforce current unconstitutional laws prohibiting abortion. This has created a situation where millions of people, particularly in the South and Midwest, are unable to access legal abortion services due to financial and logistical barriers.

The impact of the Supreme Court's decision is exacerbated by the fact that some states had never repealed their pre-Roe abortion bans. Now, these states may attempt to revive and enforce these bans, further limiting abortion access. Additionally, states with abortion bans or gestational restrictions often have exceptions that allow abortions to protect the life or health of the pregnant person. However, these exceptions are often unworkable, with vague and contradictory language, making it challenging for individuals to navigate their rights and access abortion care.

The overturning of Roe v. Wade has also brought attention to the targeted regulation of abortion providers (TRAP) laws. These laws impose burdensome requirements on physicians providing abortion care, singling them out from other medical professionals. Compliance with TRAP laws can be costly and may require unnecessary modifications to facilities, further reducing the number of abortion providers.

The Supreme Court's decision to overturn Roe v. Wade has had far-reaching consequences, significantly impacting abortion access and rights across the United States. It has led to a patchwork of state-by-state regulations, with varying levels of access and restrictions, and highlighted the ongoing legal and logistical challenges surrounding abortion care.

State abortion laws and restrictions

In 2022, the U.S. Supreme Court overturned Roe v. Wade, which had protected the federal constitutional right to abortion for nearly 50 years. This decision gave states the freedom to restrict or completely ban abortions. As a result, the United States is now divided into "abortion deserts," where abortion access is illegal, and "abortion havens," where abortion care is still available.

Some states have passed laws restricting abortion at "viability," which is defined as the point at which a fetus can survive outside the womb. These laws often include exemptions to protect the health or life of the pregnant person. Additionally, some states have banned specific abortion procedures, such as dilation and extraction (D&X) and dilation and evacuation (D&E) procedures.

Targeted Regulation of Abortion Providers (TRAP) laws impose burdensome requirements on physicians who provide abortion care. These laws do not improve patient safety and counter evidence-based clinical guidelines. Parental involvement and consent laws also play a role in restricting abortion access for young people.

The landscape of abortion rights is constantly evolving with each election cycle, state legislative session, and round of court cases. For example, in the 2024 election, voters in seven states approved ballot measures to expand or protect abortion access.

Viability, and how it's determined

Viability is a concept that emerged with the development of contemporary prenatal care. The term refers to the point at which a foetus can survive outside the womb. The chance of a foetus living outside the uterus increases as the gestational age increases.

Viability is determined by a physician or other healthcare provider. It is based on clinical judgement, using data points that reflect a population average. There is no test to determine whether a foetus can survive outside the womb.

The determination of viability is influenced by various factors, including the availability of medical resources and technology. For example, the development of artificial womb technology could enable fetuses to be supported earlier in gestation, challenging the viability timeline.

In the context of abortion, viability has been used as a dividing line for legal abortion. In the United States, the Supreme Court has recognised that the right to abortion is limited by foetal viability. Some states have laws restricting abortion at "viability" or at a specific gestational age when viability is presumed to occur. However, the determination of viability can be ambiguous and subject to different interpretations.

It is important to note that the concept of viability has been criticised as a morally significant moment in foetal development, and there are inconsistencies in how it is applied in law. Some advocates argue that viability should not be used to restrict abortion and that it dilutes pregnant individuals' rights by imposing overly moralistic limitations on access to healthcare.

Gestational age and its impact on abortion laws

The U.S. Supreme Court's overturning of Roe v. Wade has given states the freedom to restrict or prohibit abortions altogether, leading to a surge in efforts to ban abortions by imposing gestational age limits. Gestational age is calculated in weeks from the first day of the last menstrual period (LMP) or, less commonly, from fertilization. Ultrasounds can be used to estimate gestational age when the LMP is unknown.

Gestational age limit laws, or gestational age bans, restrict access to abortion care after a specified gestational age. These laws are considered harmful at any point in pregnancy as they limit individuals' agency and can have detrimental mental health consequences. The impact of these laws on maternal and child health outcomes is not fully understood, but research suggests that they disproportionately affect women who lack the resources and opportunities to access abortion early in their pregnancies due to financial, logistical, and social constraints.

In 2019, nine states enacted gestational age bans, with Alabama imposing a total ban on abortion at any point in pregnancy, and Arkansas and Utah banning abortion at 18 weeks. As of 2024, 16 states that allow abortions have laws restricting abortion at "viability" or around 24 weeks LMP/third trimester, when viability is presumed to occur. However, the determination of viability must be made on a case-by-case basis by a healthcare provider.

While states with abortion bans or gestational restrictions may include exemptions to protect the life or health of the pregnant person, these exemptions do not always consider the mental health implications. Additionally, the impact of these laws on infant mortality rates is unclear, with conflicting findings from various studies.

The impact of abortion restrictions on marginalised groups

The impact of abortion restrictions falls disproportionately on marginalised groups, with the Supreme Court's overturning of Roe v. Wade triggering restrictions in 13 states, most of which are in the Southern United States. This region is marked by enduring racial gaps in poverty and income, with marginalised groups bearing the brunt of these disparities. The loss of constitutional protection for abortion access has far-reaching consequences for those already facing systemic racism and poverty.

The lack of access to safe abortions will have wide-ranging ramifications for marginalised communities, beyond just the inability to terminate a pregnancy. Carrying a pregnancy to term can endanger the pregnant person's life, disrupt educational plans, and alter career trajectories, exacerbating existing inequalities. For instance, the maternal mortality rate for Black women is 2.9 times higher than for white women, and a total abortion ban is expected to increase pregnancy-related deaths among Black people. Furthermore, the average distance to an abortion clinic for those in states with bans increased to 300 miles, with a 2.8% increase in births for women in these states, rising to 3.8% for Hispanic women.

Targeted Regulation of Abortion Providers (TRAP) laws disproportionately affect physicians providing abortion care, imposing burdensome and costly requirements that differ from those for comparable medical procedures. Compliance with TRAP laws can be expensive and may necessitate unnecessary facility modifications. These laws do not enhance patient safety and contradict evidence-based clinical guidelines.

Additionally, abortion restrictions can lead to a chilling effect, where healthcare providers, fearing legal repercussions, may hesitate to perform abortions even when the pregnant person's life is at risk. This compounds the challenges faced by marginalised groups, who already encounter barriers to healthcare due to systemic discrimination.

Frequently asked questions