Gavin Howe
Abortion laws in the United States have been a topic of debate and legal battles for decades. The discussion revolves around the question of whether individual states can make their own abortion laws, independent of federal law. The U.S. Supreme Court's overturning of Roe v. Wade in 2022 left the legality of abortion up to each state, resulting in a mix of abortion policies across the nation. Some states have chosen to protect abortion rights, while others aim to prohibit it entirely. This has led to a complex landscape of abortion laws, with varying access and restrictions depending on where one resides. The impact of these state-level decisions is significant, with some individuals needing to travel out of state to access abortion services or face criminal consequences for seeking abortion care.
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What You'll Learn
The right to abortion care up to fetal viability
The 1973 Roe v. Wade decision established a constitutional right to abortion and created a framework that allowed states to regulate abortions at certain points during pregnancy. The Supreme Court held that the right to abortion is a "fundamental right" and is tied to other liberty rights to make personal decisions about family, relationships, and bodily autonomy. The decision also recognized that the right to liberty in the Constitution, which protects personal privacy, includes the right to decide whether to continue a pregnancy.
Roe v. Wade had two key parts. Firstly, the Court ruled that, before fetal viability, it is a pregnant person's decision—not the government's—whether to continue a pregnancy. Viability refers to the ability of a fetus to live outside the womb, which usually happens between 23 or 24 to 28 weeks after conception. The second part of the ruling held that, as with other fundamental rights, restrictions on the right to abortion were subject to strict scrutiny, meaning that infringements on the right must be narrowly tailored to serve a compelling government interest.
Applying a trimester framework, Roe permitted more regulation of abortion as pregnancy advanced but only when that regulation was evidence-based and consistent with how other similar medical procedures were treated. Under Roe, the government was not permitted to pressure pregnant people about their decision to continue or end a pregnancy. During the first trimester, the woman has the exclusive right to pursue an abortion, not subject to any state intervention. In the second trimester, the state cannot intervene unless her health is at risk. If the fetus becomes viable, once the pregnancy has progressed into the third trimester, the state may restrict the right to an abortion but must always include an exception to any regulation that protects the health of the mother.
After the Supreme Court overturned Roe v. Wade, the legality of abortion was left to individual states. 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 abortion. Other states have approved laws to protect abortion rights, with most of these policies prohibiting state interference with the right to obtain an abortion before viability or when necessary to protect the life or health of the pregnant person.
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State supreme courts and abortion rights
The US Supreme Court's decision in Dobbs v. Jackson Women's Health Organization in 2022 overturned the federal constitutional right to abortion, leaving the legality of abortion up to individual states. This has resulted in a highly varied landscape of abortion laws across the country, with some states banning abortion entirely, while others have amended their constitutions to protect abortion rights.
State supreme courts have become central to the battle over abortion rights in the US, with several states seeking to prohibit abortion both inside and outside their borders. In response, some state supreme courts have recognised that their state constitutions protect abortion rights and access independently from, and more strongly than, the US Constitution. For example, the New Mexico Supreme Court struck down a restriction on public funding for abortion as a violation of its Equal Rights Amendment, while the Texas Supreme Court held the opposite view. The Illinois and Mississippi Supreme Courts have also held that their constitutions protect abortion rights independently from the federal Constitution, while the Florida Supreme Court recognised in 1989 that the state constitution's explicit privacy clause protects abortion as a fundamental right.
On the other hand, several state supreme courts have upheld abortion bans. For instance, the South Carolina Supreme Court upheld an abortion ban, despite having struck down a similar ban just seven months earlier. The state supreme courts of Idaho, Indiana, and Iowa have also held that their constitutions do not protect a general right to abortion.
The Center for Reproductive Rights has brought cases in state courts for decades to build strong abortion protections at the state level, independent of federal law. These protections are more important than ever in the current legal landscape, where abortion providers and helpers in states where abortion is protected are shielded from civil and criminal consequences of providing care to out-of-state residents.
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State constitutions and abortion rights
The United States Supreme Court's decision in Dobbs v. Jackson Women's Health Organization in 2023 has had a profound impact on abortion rights across the nation, with state constitutions and courts now playing a more critical role than ever in shaping abortion access. The ruling overturned Roe v. Wade, which had previously established abortion as a liberty right under the Fourteenth Amendment. As a result, the legality of abortion has been left to individual states, and state constitutions have become a crucial battleground for abortion rights.
Some states have amended their constitutions to explicitly declare that their constitution does not protect the right to abortion or permit public funding for the procedure. These states have sought to prohibit abortion entirely, both within their borders and for their residents seeking abortions out-of-state. In contrast, several other states have taken steps to protect abortion rights independently of the Roe decision, with state courts and constitutions offering stronger legal grounds for abortion access.
For instance, New York has codified abortion rights and reproductive freedoms into state law, solidifying its position as a reproductive sanctuary state. Similarly, a report by the Center for Reproductive Rights identified ten states whose high courts recognized that their state constitutions safeguard abortion rights and access, either independently from or more robustly than the U.S. Constitution. These states have successfully challenged restrictions that were previously upheld by the U.S. Supreme Court, setting a precedent for further efforts to secure reproductive rights.
The impact of state constitutions on abortion rights is also evident in the varying abortion laws across different states. For example, abortion is legal in Kansas up to 22 weeks after the last menstrual period, while Iowa imposes more stringent restrictions, with exceptions only in very limited circumstances. Additionally, some states criminalize self-managed abortions outside of a healthcare setting and enact laws that ban abortion at an early gestational age. These varying state-level approaches to abortion rights highlight the significance of state constitutions and courts in shaping the abortion landscape in the post-Roe era.
While the Supreme Court's decision in Dobbs v. Jackson has undoubtedly shifted the terrain of abortion rights, state constitutions and courts are now at the forefront of the battle for reproductive autonomy. Through legal challenges and the establishment of novel jurisprudence, states are actively shaping the future of abortion access within their borders and beyond.
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Abortion restrictions and bans
The US Supreme Court's overturning of Roe v. Wade in June 2022 gave states the power to restrict or ban abortions entirely. As a result, abortion laws and policies have been rapidly changing across the country, with some states seeking to restrict access to abortions and others aiming to protect abortion rights.
Abortion Bans
Some states have enacted near-total or total abortion bans, making it illegal to perform abortions within their borders. These states are referred to as "Illegal" or "Hostile" in terms of their abortion laws. For example, Texas has a near-total abortion ban, with a lawsuit seeking to clarify the medical exception clause rather than overturn the ban entirely. Iowa also has restrictive abortion laws, with patients needing to travel out of state for an abortion if they are more than six weeks pregnant and do not qualify for limited exceptions.
Abortion Restrictions
In addition to outright bans, some states have implemented various restrictions on abortion access. These include laws that prohibit abortions before a certain gestational age, such as Kansas, which allows abortions up to 22 weeks after the last menstrual period. Other restrictions include parental consent requirements for minors, such as in Kansas, and laws that single out physicians who provide abortion care, imposing legal requirements that make it difficult for them to practice.
Interstate Shield Laws
To counter the impact of abortion bans and restrictions, some states have enacted interstate shield laws. These laws protect abortion providers and helpers in states where abortion is accessible from civil and criminal consequences when providing care to out-of-state residents. Telehealth shield laws also protect providers who offer telemedicine abortion care to those who cannot travel for care.
Impact of Abortion Bans and Restrictions
The enactment of abortion bans and restrictions has had significant impacts on abortion access and travel in the US. Many individuals are now crossing state lines to access abortions, with states like Illinois, North Carolina, Kansas, and New Mexico becoming major hubs for those seeking abortions. The Guttmacher Institute reported that about 155,000 people crossed state lines for abortions in 2024, a number that has likely remained consistent in 2025.
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Interstate shield laws
The US Supreme Court's overturning of Roe v. Wade in 2022 left the legality of abortion to be decided by individual states. While some states have amended their constitutions to declare that they do not contain any protection for abortion rights, others have approved laws to protect abortion rights.
As of June 2024, abortion shield laws are in effect in 18 states and Washington, D.C. These include California, Colorado, Maine, Massachusetts, New York, Vermont, and Washington. Maine's shield law includes protections for abortion, fertility treatments, and contraception. Massachusetts' shield law protects telehealth abortion providers and gender-affirming care providers from out-of-state prosecution by categorizing all virtual encounters with patients in anti-abortion states as local.
The passage of these shield laws has resulted in legal battles, as they deal with interstate relations and may be subject to constitutional challenges claiming they violate the Full Faith and Credit Clause.
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Frequently asked questions
Yes, states can make their own abortion laws. The US Supreme Court overturned Roe v. Wade, leaving the legality of abortion up to individual states.
Some states have amended their constitutions to declare that they do not contain any protection for abortion rights. For example, Texas has a near-total abortion ban. On the other hand, New York is known as a reproductive sanctuary state, where abortion is legal and seen as healthcare provided by the state.
States that are hostile to abortion want to prohibit it entirely within their borders. Some states criminalize people who self-manage their abortions, i.e. end their pregnancies outside of a healthcare setting. Other states want to protect abortion rights without relying on the Roe decision.
Interstate shield laws protect abortion providers and helpers in states where abortion is legal from civil and criminal consequences when providing care to an out-of-state resident. Telehealth shield laws protect abortion providers offering telemedicine abortion care to out-of-state residents who cannot travel for care.
