Understanding Abortion Law: What Does It Actually Cover?

Abortion laws vary widely from country to country and even within countries, such as in the United States, where abortion laws differ from state to state. In some places, abortion is freely available on request, while other places have gestational limits for the procedure, and others ban it outright. In the US, abortion was federally decriminalized in 1973, but in 2022, the Supreme Court overturned this decision, allowing individual states to regulate any aspect of abortion not preempted by federal law.

Criminalisation of abortion

The criminalisation of abortion has been a highly contested issue, with some countries imposing harsh penalties for those seeking or providing abortions. The laws that restrict abortion vary between countries, with some issuing life imprisonment for those seeking an abortion, while others impose heavy fines and prison sentences for those providing the procedure.

In some countries, abortion is criminalised altogether, with very few exceptions. For example, in Alabama, abortion is illegal with exceptions only to preserve the pregnant individual's life or physical health. There are no exceptions for rape, incest, or fatal foetal abnormalities. Doctors who perform abortions in Alabama face up to 10 years in prison and fines of up to $100,000. Similarly, in Oklahoma, abortion is illegal unless necessary to save the pregnant person's life, with no exceptions for rape, incest, or fatal foetal abnormalities.

In other countries, abortion is permitted in specific circumstances. For instance, in Arizona, abortion is legal up to the 15th week of pregnancy, but patients must meet with a physician at least 24 hours before the procedure, and a licensed physician must perform it. Minors under 18 must also receive parental consent. In Arkansas, abortion is illegal, with the only exception being abortions necessary to save the pregnant individual's life. Doctors who perform abortions in Arkansas face up to 10 years in prison and fines up to $100,000.

The criminalisation of abortion has a significant impact on those who are already marginalised. Health services are generally less accessible to people with low incomes, refugees, migrants, LGBTIQA+ people, and racialised and Indigenous people. This makes it more difficult for these communities to seek safe services in another country or access private care.

The criminalisation of abortion also has little effect on preventing abortions. Data from multiple studies, including by the World Health Organization (WHO), suggests that people experiencing unwanted pregnancies will seek access to abortion services, even in highly punitive legal situations. As a result, criminalising abortion pushes women and girls seeking abortions, especially those in poverty and rural areas, outside of the formal healthcare system and into clandestine, unregulated settings. This often leads to unsafe abortions, which can result in short- or long-term health problems or even death.

The debate around the criminalisation of abortion is complex and multifaceted, involving ethical, legal, and cultural considerations. While some countries have strict laws criminalising abortion, others have taken steps to protect abortion rights and ensure access to safe and legal procedures.

Gestational limits

In countries that allow abortion on request, the most common gestational limit is 12 weeks. However, these countries often permit abortion under a range of circumstances after this limit has expired. For example, Denmark allows abortion on request during the first 12 weeks of pregnancy, and thereafter, abortion is permitted on social and economic grounds, as well as in cases of rape, incest, and foetal impairment.

In contrast, countries with restrictive abortion laws, such as those that only permit abortion when the woman's life or health is at risk, typically do not prescribe a gestational limit. Bolivia and Burkina Faso, for instance, do not set a gestational limit for abortions in cases where the woman's life or health is endangered, or when the pregnancy is a result of rape or incest.

The World Health Organization (WHO) acknowledges that efforts to impose gestational limits on abortion may negatively impact women whose pregnancies have exceeded these limits. WHO emphasizes that abortion may be necessary at any point during a pregnancy to save the woman's life or minimize risks to her health.

In the United States, abortion laws and policies are determined by each state, and there is no uniform federal law. Some states prohibit abortion at all stages of pregnancy, while others permit it up to a certain point, typically measured from the last menstrual period (LMP). For example, Florida bans abortion after 6 weeks of pregnancy, while California allows it up to the point of foetal viability.

The legality of abortion and the applicable gestational limits vary significantly across states in the US. While some states like Alabama and Arkansas have strict limits and exceptions, others like Alaska and California allow abortion at all stages of pregnancy.

Parental consent

In the United States, the majority of states require some form of parental involvement in a minor's decision to have an abortion. Most of these states require the consent or notification of only one parent, usually 24 or 48 hours before the procedure. However, a handful of states require the involvement of both parents. Some states also require the minor and the parent to provide government-issued identification to the abortion provider and/or as part of notarizing the parental consent form. Additionally, several states allow grandparents or other adult relatives to be involved in the decision-making process in place of the minor's parents.

It is important to note that most states that require parental involvement make exceptions under certain circumstances. For example, 33 states permit a minor to obtain an abortion in a medical emergency, and 14 states permit a minor to obtain an abortion in cases of abuse, assault, incest, or neglect.

In some states, even with laws that generally require a parent's permission, minors may not have to involve their parents in certain circumstances, such as if they have experienced abuse. Furthermore, if a state has parental involvement laws, minors may be able to obtain a judge's permission to have an abortion without notifying their parents through a process called "judicial bypass."

The specific requirements and exceptions for parental consent laws vary from state to state, and it is essential to refer to the laws in your specific state to understand the applicable rules.

Ultrasound requirements

As of September 1, 2023, 13 states require verbal counselling or written materials to include information on accessing ultrasound services. 27 states regulate the provision of ultrasound by abortion providers. 6 states mandate that an abortion provider perform an ultrasound on each person seeking an abortion and require the provider to show and describe the image. 10 states mandate that an abortion provider perform an ultrasound on each person seeking an abortion, and 8 of these require the provider to offer the patient the opportunity to view the image. 8 states require that a patient be provided with the opportunity to view an ultrasound image if their provider performs the procedure as part of preparation for an abortion. 6 states require that a patient be provided with the opportunity to view an ultrasound image.

Furthermore, while ultrasound may be beneficial during pregnancy, viewing the ultrasound has little proven effect on the decision to continue a pregnancy. Therefore, requiring mandatory ultrasounds violates the principle of beneficence, which states that only procedures that benefit the patient should be performed.

Waiting periods

In addition to creating obstacles to timely abortion care, waiting periods presuppose that additional time and information will enable people to consider or reconsider their decision. However, research consistently demonstrates that decision certainty regarding abortion is high at the time people seek care, and that the overwhelming majority of people having abortions feel it was the right decision for them.

As of August 30, 2023, 27 states required individuals seeking abortion to wait 18-72 hours after mandated counselling before having an abortion, and 14 states required that counselling be done in person, creating a two-visit minimum to obtain care.

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