Abortion Laws: Understanding Your Rights And Restrictions

Abortion laws vary widely across the world, and they have changed over time. While some countries have liberal abortion laws, others have restrictive laws or ban the procedure altogether. The legal status of abortion depends on various factors, including cultural, ethical, political, practical, and religious considerations.

In recent years, there has been a global trend towards the liberalization of abortion laws, with more than 60 countries making abortion more accessible. This shift is particularly notable in Latin America, with countries like Argentina, Colombia, Mexico, and Thailand joining the green wave and expanding abortion rights. However, a few countries, including the United States, El Salvador, Nicaragua, and Poland, have tightened their abortion restrictions.

Access to safe abortion has been recognised as a human right by international frameworks and human rights courts. Despite this, restrictive abortion laws persist and can lead to unsafe procedures, resulting in approximately 5-13% of maternal deaths worldwide.

Criminalisation of self-managed abortions

The criminalisation of self-managed abortions (SMA) is a growing concern in the United States, particularly after the Supreme Court overturned Roe v. Wade in June 2022. SMA refers to any action taken to end a pregnancy outside of the formal healthcare system, including self-sourcing medications, using herbs or physical methods. While SMA can be safe and effective, there are significant legal risks involved.

Since the overturning of Roe v. Wade, 13-14 states have completely banned abortion care, and this has led to a rise in SMA attempts. A nationally representative survey estimated that the lifetime prevalence of SMA in the US in 2017 was 7%. This number is expected to increase as more states restrict abortion access and facility-based abortion care becomes more difficult to access. People who face barriers to facility-based care, such as people of colour, those with lower incomes, and people living in states with restrictive abortion laws, are more likely to attempt SMA.

The criminalisation of SMA has led to prosecutions and arrests. Between 2000 and 2020, 61 people were criminally investigated or arrested for allegedly self-managing their abortion or assisting someone else in doing so. Most of those targeted by these laws were living in poverty and were people of colour. In almost half of the cases, a social worker or healthcare provider reported the patient to the police. This has led to concerns about the surveillance of pregnancy and the role of healthcare providers in reporting SMA attempts.

The criminalisation of SMA has significant implications for access to reproductive rights and justice. It is important to note that public opinion in the US is largely against criminalising SMA, with only 17% of women of reproductive age believing it should be against the law. As the debate around abortion laws continues, the criminalisation of SMA remains a contentious and divisive issue.

Gestational duration limits

In June 2022, the US Supreme Court overturned Roe v. Wade, which had protected abortion as a federal constitutional right. This decision has opened the door for individual states to ban abortion outright or to enforce existing restrictions. As a result, abortion laws in the US vary significantly across states, with some states banning abortion entirely and others offering expanded access.

Gestational duration refers to the length of time a person has been pregnant, typically defined as the number of weeks since the last menstrual period (LMP). State abortion laws often use gestational duration to define the arbitrary timelines of abortion bans and restrictions.

As of October 2024, 28 states have abortion bans based on gestational duration. These bans fall into two categories:

• Bans at or before 18 weeks' gestation: 8 states
• Bans after 18 weeks of pregnancy: 20 states

The specific gestational limits vary across these 28 states. For example, South Carolina bans abortion after six weeks of pregnancy, while Massachusetts allows abortion until 24 weeks into a pregnancy.

On the other hand, 9 states and the District of Columbia do not restrict abortion based on gestational duration. This means that abortion is legally permitted throughout the entire duration of a pregnancy in these jurisdictions.

The gestational duration limits are not absolute, as most state laws provide limited exceptions to these bans. These exceptions are often related to the health of the pregnant person, the presence of a lethal fetal anomaly, or pregnancies resulting from rape or incest. However, these exceptions are often unworkable in practice due to vague and contradictory language in the legislation.

The US is an outlier among United Nations countries regarding gestational limits on abortion. It is one of only eight countries that allow elective abortion with no federal gestational limit. In contrast, more than 65% of UN countries permitting abortion without restriction as to reason do not allow abortion past 12 weeks of gestation.

Parental consent

As of September 1, 2023, 36 states required parental involvement in a minor's decision to have an abortion. Of these, 21 states required only parental consent, with three of those requiring the consent of both parents. Six states required both parental notification and consent, while 10 states required only parental notification, one of which mandated that both parents be notified.

Some states allow minors to obtain an abortion if a grandparent or other adult relative is involved in the decision-making process. Additionally, many states waive parental involvement requirements in cases of medical emergencies, abuse, or neglect.

The specific rules regarding parental consent vary from state to state, and it is essential to refer to the laws in your specific state to understand the requirements and options available.

Ultrasound requirements

As of September 1, 2023, 13 states required verbal counselling or written materials to include information on accessing ultrasound services. 27 states regulated the provision of ultrasounds by abortion providers.

Six states mandated that an abortion provider perform an ultrasound on each person seeking an abortion and required the provider to show and describe the image. Ten states mandated that an abortion provider perform an ultrasound on each person seeking an abortion, and eight of these required the provider to offer the patient the opportunity to view the image.

Eight states required that a patient be provided with the opportunity to view an ultrasound image if their provider performed the procedure as part of the preparation for an abortion. Six states required that a patient be given the opportunity to view an ultrasound image.

The American Medical Association has noted that ultrasound viewing is not medically necessary and can add to the cost of the abortion procedure. Despite this, a number of laws require the practice. For instance, laws in Wisconsin and Indiana mandate that a clinician perform and describe the ultrasound and offer the patient the opportunity to view it and listen to the fetal heartbeat.

Bans on specific abortion methods

In the 1990s and early 2000s, attempts were made to ban so-called "partial-birth" abortion, which was defined differently by each state. A federal version of this ban was upheld by the US Supreme Court in 2007, in the case of Gonzales v. Carhart. This law, which applies across the country, prohibits "partial-birth" abortions unless the pregnant person's life is in danger. It does not contain an exception to protect the patient's health and lacks a precise medical definition of what is banned.

More recently, states have begun banning the standard dilation and evacuation (D&E) method, which is typically used in the second trimester. These laws generally only allow for exceptions when it is necessary to protect the life of the patient or when there is a "serious risk of substantial and irreversible physical impairment of a major bodily function." Mental health conditions are rarely considered valid reasons for an exception, despite accounting for 20% of pregnancy-related deaths in the US.

As of September 1, 2023, 33 states had bans on the D&E method, and 21 states prohibited "partial-birth" abortions. These bans have been criticised for their vague and narrow language, which can make it difficult for physicians to provide appropriate medical care and can deter physicians from practicing in states with restrictive abortion laws.

The impact of these specific method bans is felt most acutely by those from marginalised communities, who already face barriers to accessing safe and legal abortion services.

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