Abortion Law: Late-Term Abortion Rights Previously Protected?

The topic of late-term abortion, also known as third-trimester abortion, is highly controversial and subject to varying legal interpretations and restrictions. In the United States, the Supreme Court's 2022 decision to overturn Roe v. Wade has significantly impacted the landscape of abortion laws, empowering states to implement their own regulations. While some states have chosen to ban abortion entirely or set gestational limits, others have opted to protect abortion access, highlighting the lack of consensus and uniformity in abortion legislation across the nation. Late-term abortions are often associated with specific medical circumstances or barriers to care, and understanding the legal protections previously in place is crucial for navigating the current complex landscape of abortion rights.

What is a late-term abortion?

Late-term abortion is an imprecise term, but it generally refers to abortions carried out during the second or third trimester of pregnancy, when a foetus can feel pain. The exact point at which an abortion is considered late-term is not clearly defined and varies according to different sources. The term is sometimes related to the concept of viability, or the stage of pregnancy where a foetus can survive outside the womb.

Late-term abortions are rare, accounting for approximately 1.1 to 1.3% of abortions in the US, or around 10,000 procedures per year. They are expensive, time-intensive, and often require travel. They are also more dangerous for the mother, carrying a higher risk of death, womb perforation, massive bleeding, and womb damage.

Reasons for late-term abortions include circumstances where a pregnant woman's health is at risk, when lethal foetal abnormalities are detected, or when there are barriers to care that cause delays in obtaining an abortion.

Is late-term abortion protected under Roe v. Wade?

The question of whether late-term abortions were protected under Roe v. Wade is a complex one and has been the subject of much debate and legal interpretation. Roe v. Wade, the 1973 Supreme Court decision, established a constitutional right to abortion and prohibited states from banning the procedure before fetal viability, which is generally considered to be between 24 to 28 weeks after a patient's last menstrual period. This ruling allowed states to regulate abortion after viability.

However, the protection of late-term abortions under Roe v. Wade was not absolute. The decision gave states significant leeway in regulating abortions, and many states implemented bans and restrictions on the procedure. As of December 2014, forty-three states had bans on late-term abortions that were not considered unconstitutional under Roe v. Wade. These bans were often based on gestational duration, with states defining arbitrary timelines for prohibiting abortions.

The interpretation of "late-term" also varies and lacks a precise definition. While some sources consider it to be after 20 weeks of gestation, others use the term to refer to abortions after 21 or 24 weeks. The ambiguity in defining the exact point of a late-term abortion adds to the complexity of determining its protection under Roe v. Wade.

Additionally, the Supreme Court's ruling in Gonzales v. Carhart further complicated the matter. The Court upheld Congress's ability to ban certain late-term abortion techniques, both before and after viability, as seen in the Partial-Birth Abortion Ban Act of 2003. This ruling gave states more power to restrict abortion access, even for procedures that may be considered late-term.

In summary, while Roe v. Wade prohibited states from banning abortions before fetal viability, it did not provide absolute protection for late-term abortions. The interpretation of "late-term," varying state laws, and subsequent court rulings have all contributed to a complex and evolving landscape surrounding the legality of late-term abortions in the United States.

State laws on late-term abortion

In the United States, the Supreme Court's ruling to overturn Roe v. Wade has given states the power to regulate abortion laws individually. This has resulted in a variety of gestational limits and restrictions on abortions across the country.

The definition of "late-term" in the context of abortion is not precisely defined and varies across different medical publications, typically ranging from 20 to 28 weeks or around the time of fetal viability. Viability is generally considered to be between 24 to 28 weeks after a patient's last menstrual period, and it refers to the ability of the fetus to survive outside the womb.

Currently, 43 states prohibit some abortions after a certain point in pregnancy. Several states, such as California, Arizona, and New York, use fetal viability as the cutoff, while some other states use the third trimester (around 28 weeks). Other states specify a number of weeks post-fertilization, after a woman's last menstrual cycle, or after gestation. These weeks can range from six to 20 weeks.

As of 2024, South Carolina and Georgia are the only states with laws banning abortions after the detection of cardiac activity in the embryo, which is typically around six weeks. Nebraska and North Carolina ban abortions at the 12-week mark, while Arizona and Florida ban abortions at 15 weeks. Utah is the only state that bans abortions at 18 weeks, and Iowa, Kansas, Ohio, and Wisconsin ban abortions at 22 weeks.

Four states ban abortions at 24 weeks, and 14 states ban abortions after the fetus is considered viable. Virginia is the only state that prohibits abortions in the third trimester, which starts at around 25 weeks. On the other hand, six states and Washington, D.C., do not impose any term restrictions on abortions.

It is important to note that most states with restrictions have exceptions, including to preserve a pregnant person's life or health, although these exceptions are often narrowly defined. For example, in some states, late-term abortions are permitted in cases of rape, incest, or fetal abnormality.

Gestational limits on late-term abortion

Late termination of pregnancy, also known as third-trimester abortion, refers to the termination of pregnancy by inducing labour during a late stage of gestation. However, the exact definition of "late" in this context is not precise, and different medical sources use varying gestational age thresholds. In general, a late termination of pregnancy refers to an induced ending of pregnancy after the 20th week of gestation, i.e. after a fetal age of about 18 weeks.

In the United States, the point at which an abortion becomes late-term is often related to fetal viability, or the ability of the fetus to survive outside the uterus. Thus, late-term abortions are sometimes referred to as post-viability abortions. The viability of a fetus is not determined by a sharp limit of development, age, or weight, and there is no consensus on when viability occurs. A 2015 study found that no infants born at less than 22 weeks survived, even with active treatment, but an infant born at 21 weeks and one day in April 2021 did survive. At 23 weeks, survival without severe impairment is less than 2%, and at 25 weeks, up to 30% might survive without severe impairment.

The legality of late-term abortions in the United States has changed significantly following the Supreme Court's overturning of Roe v. Wade in 2022. Under Roe v. Wade, states could regulate abortion after viability, which is generally considered to be between 24 to 28 weeks after a patient's last menstrual period. However, following the overturning of this decision, states now have the power to individually regulate abortion or even ban it completely before viability. As a result, there is now a variety of gestational limits on abortion procedures across the United States.

As of 2024, 14 states have laws banning abortions starting at fertilization, while six states and Washington, D.C., do not impose any term restrictions. Some states have implemented bans before the 24-week mark, based on the assertion that a fetus can feel pain at 22 weeks, although this is considered unfounded by the Guttmacher Institute. Virginia is the only state that prohibits abortions in the third trimester, which starts at around 25 weeks.

Reasons for late-term abortion

Late-term abortions are a highly controversial topic. The term "late-term abortion" is imprecise and is used to refer to abortions at least in the second trimester of pregnancy, when a foetus can feel pain. However, the exact point when an abortion is considered late-term is not clearly defined and varies across different medical publications and countries. In the United States, late-term abortions refer to abortions at or after 21 weeks of gestation.

There are several reasons why someone might need a late-term abortion, and these are not so different from the reasons for abortions before the third trimester. Here are some of the most common reasons:

• New Information: Some people receive new information about their pregnancy that makes them no longer want to continue. This could include learning about the pregnancy later in the term or discovering serious foetal health issues that were not detectable earlier.
• Barriers to Abortion: Many people try to obtain an abortion before the third trimester but face barriers such as policy restrictions, stigma, financial difficulties, and lack of access to abortion services, which delay the procedure into the third trimester.
• Maternal Health Risks: In some cases, continuing the pregnancy may pose a risk to the pregnant woman's health. This could include life-threatening conditions such as severe preeclampsia, cancer requiring prompt treatment, or intrauterine infection.
• Fetal Abnormalities: Late-term abortions may also be sought when lethal fetal abnormalities or birth defects are detected. This could include chromosomal anomalies, structural abnormalities, or Down syndrome.
• Socio-Economic Factors: Late abortions may be sought by people facing socio-economic challenges, such as single motherhood, financial pressure, relationship issues, unemployment, or domestic violence.

It is important to note that late-term abortions are rare and typically more expensive, difficult to obtain, and highly stigmatised compared to first-trimester abortions.

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