Abortion Laws: Understanding The Current Legal Landscape

Abortion laws vary across the world, with some countries criminalising the procedure and others permitting it under certain circumstances. In the United States, the Supreme Court's 2022 decision to overturn Roe v. Wade has resulted in a wave of new state-level abortion restrictions and an ongoing legal battle over reproductive rights. While some US states have chosen to protect abortion access, others have implemented near-total bans, leading to a patchwork of abortion laws across the country. This situation has left many people unable to access safe and legal abortions, forcing them to travel out of state or resort to unsafe alternatives. The issue of abortion remains highly contentious, with anti-abortion activists seeking to further restrict access and abortion-rights supporters pushing for greater protection under state and federal law.

Abortion laws by state

The legality of abortion in the United States varies from state to state. In June 2022, the U.S. Supreme Court overturned Roe v. Wade, which had protected abortion rights at a federal level. Now, individual states can impose any regulation on abortion, provided it does not conflict with federal law.

Since the overturning of Roe v. Wade, 14 states have made abortion illegal. These include Alabama, Arkansas, Georgia, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, and West Virginia.

Four states have banned abortion after roughly six weeks of pregnancy: Florida, Georgia, Iowa, and South Carolina.

Abortion is legal in some states, with varying restrictions. These include Alaska, Arizona, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Kansas, Maine, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, Ohio, Oregon, Pennsylvania, Rhode Island, Utah, Vermont, Virginia, Washington, Wisconsin, and Wyoming.

In some states, the future of abortion access is uncertain due to legal challenges. For example, in Georgia, a judge struck down the state's six-week abortion ban in September 2024, but the Republican attorney general appealed, and the state supreme court reinstated the ban.

In addition, ten states are scheduled to hold ballot measures on abortion rights during the November 2024 elections.

Roe v. Wade

The Supreme Court's decision in Roe was among the most controversial in U.S. history. The decision also shaped debate concerning which methods the Supreme Court should use in constitutional adjudication. The decision caused an ongoing abortion debate in the United States about whether, or to what extent, abortion should be legal, who should decide the legality of abortion, and what the role of moral and religious views in the political sphere should be.

The Supreme Court overruled Roe in 2022, ending the constitutional right to abortion. In the year Roe v Wade was overturned, at least 200 people in the US were prosecuted for conduct relating to their pregnancies – the highest number of cases in a single year ever recorded.

Dobbs v. Jackson Women's Health Organization

In a 6-3 decision, the Supreme Court upheld the Mississippi law and overturned Roe v. Wade (1973) and Planned Parenthood v. Casey (1992). The Court concluded that the Constitution does not protect the right to an abortion and that the issue of abortion regulation should be returned to elected branches.

In the majority opinion, Justice Samuel Alito wrote that the Constitution makes no reference to abortion and that any right to abortion must be "deeply rooted in this Nation's history and tradition". He added that until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion.

Chief Justice John Roberts concurred with the decision to uphold the Mississippi law but disagreed with the majority's decision to overrule Roe and Casey, arguing that it was unnecessary to decide the broader question of whether to overrule the precedents.

In a joint dissent, Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor criticised the Court for unsettling nearly five decades of precedent and undermining the Constitution's promise of freedom and equality for women. They argued that the Court's decision curtails women's rights and their status as free and equal citizens.

State constitutions

The legality of abortion in the United States is now determined by individual states, and as such, state constitutions have become more important than ever in protecting abortion rights.

Three states have explicit protections for the right to abortion in their state constitutions: California, Michigan, and Vermont. Four other states have a right to abortion in their state constitutions, as interpreted by the state supreme court: Alaska, Illinois, Kansas, Minnesota, and North Dakota.

In addition, voters in six states have weighed in on constitutional amendments regarding abortion, and the side favoring access to abortion prevailed in every state. In four of these states – California, Michigan, Ohio, and Vermont – measures amending the state constitution to protect the right to abortion were approved by voters. In the other two states – Kentucky and Kansas – measures seeking to curtail the right to abortion failed.

In 2024, ten states will have abortion measures on their ballot, seeking to either affirm that the state constitution protects the right to abortion or that nothing in the constitution confers such a right.

Criminalisation of abortion

Abortion is a medical procedure that ends a pregnancy. It is considered basic healthcare for millions of women, girls, and people who can get pregnant. It is estimated that one in four pregnancies ends in abortion every year.

In places where abortion is legal, people can get abortions safely and without risk. However, in places where abortion is stigmatised, criminalised, or restricted, people are forced to resort to unsafe abortions, which can lead to fatal consequences such as maternal deaths and disabilities. The criminalisation of abortion creates additional barriers for marginalised communities, as health services are often less accessible to people with low incomes, refugees, migrants, LGBTI people, and racialised and Indigenous communities.

In some countries, abortion is criminalised, and specific laws restrict abortion or penalise those who assist others in seeking an abortion. For example, in the United States, Sierra Leone, Poland, and Morocco, getting an abortion or helping someone obtain an abortion is illegal. In Equatorial Guinea and Zambia, those who seek an abortion may face life imprisonment.

While laws play a significant role in restricting abortion access, other factors, such as cost, distance to services, social stigma, and conservative attitudes, also create barriers. Even in countries where abortion is decriminalised, such as Northern Ireland, people may still face challenges accessing abortion services due to uneven and obstructed access.

The criminalisation of abortion has been recognised as a human rights issue. International human rights bodies and experts have emphasised that decriminalising and ensuring access to abortion are necessary to protect fundamental human rights, including the rights to life, health, and bodily autonomy.

Despite the varying legal status of abortion worldwide, it is important to recognise that criminalising abortion does not stop abortions from happening. Instead, it pushes people towards unsafe and clandestine abortions, which can have detrimental health consequences and even lead to death.

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