Understanding Abortion Law: What You Need To Know

Abortion laws vary across the world. In the United States, the Supreme Court's decision in Dobbs v. Jackson Women's Health Organization in June 2022 overturned Roe v. Wade, eliminating the federal standard protecting the right to abortion. This has resulted in a national divide, with some states implementing bans and others protecting access to abortion. Outside the US, abortion laws differ by country and region, with some countries having highly restrictive laws while others have liberalised abortion access. The legal status of abortion is influenced by various factors, including religious and cultural beliefs, public health considerations, and human rights frameworks. Ultimately, the decriminalisation of abortion remains a complex and contentious issue globally.

The Supreme Court's overturning of Roe v. Wade

On June 24, 2022, the Supreme Court issued its decision in Dobbs v. Jackson Women's Health, overturning Roe v. Wade and eliminating the federal standard protecting the right to abortion. The ruling ended the federal constitutional right to abortion in the United States, and it is now up to each state to establish laws protecting or restricting abortion.

The Supreme Court's decision in Dobbs v. Jackson Women's Health Organization was based on the grounds that the substantive right to abortion was not "deeply rooted in this Nation's history or tradition", nor considered a right when the Due Process Clause was ratified in 1868, and was unknown in U.S. law until Roe. Writing for the majority, Justice Samuel Alito argued that the only legitimate unenumerated rights—those not explicitly stated in the Constitution—are those "deeply rooted in the Nation's history and tradition" and "implicit in the concept of ordered liberty." The Court concluded that abortion is not such a right.

The impact of the Supreme Court's decision has been significant, with one in three women now living in states where abortion is not accessible. In the two years since Roe was overturned, more than a dozen states have banned most or virtually all abortions, and abortion has become a major issue in presidential elections. The decision has also had a disproportionate impact on communities of color, where systemic racism has long blocked access to opportunity and healthcare.

The overturning of Roe v. Wade has also sparked protests and widespread criticism. Many Americans believe that the decision was a violation of women's rights, personal freedom, bodily integrity, and privacy. The decision has also been criticized by legal scholars and judges, who argue that it lacks a valid constitutional foundation and that the proper solutions to the question of abortion should be found through the legislative process rather than through an all-encompassing ruling from the Supreme Court.

The Supreme Court's decision in Dobbs v. Jackson Women's Health Organization has far-reaching implications for reproductive rights in the United States, and it remains to be seen how each state will respond in establishing laws and protections around abortion.

The Hyde Amendment

The impact of the Hyde Amendment falls disproportionately on women with low incomes and women of colour, who are significant beneficiaries of Medicaid. The amendment has made it extremely difficult, and often impossible, for Medicaid recipients to exercise their constitutional right to a safe and legal abortion. Many women on Medicaid have had to pay for abortions using money intended for living expenses, and some have been forced to carry unwanted pregnancies to term.

Since its enactment, the exceptions to the funding ban under the Hyde Amendment have varied. After significant battles in Congress, the fiscal 1978 amendment included exceptions for rape and incest victims and women whose health would be severely impacted by carrying a pregnancy to term. However, in 1980, the Supreme Court upheld the constitutionality of the original amendment language with only the exception for life endangerment. From the second half of 1981 through 1993, Congress enacted the amendment with only that single exception. In 1994 and 1995, the amendment again contained exceptions for rape and incest victims.

State laws and policies

In the absence of a federal mandate, states have reacted in divergent ways, with some moving swiftly to implement bans or restrictions on abortion, while others have taken steps to protect and expand access to abortion services. This has resulted in a fragmented landscape of abortion laws across the nation, where one's access to safe and legal abortion depends entirely on their state of residence.

Prior to the Dobbs v. Jackson decision, even with Roe v. Wade in place, access to abortion was already challenging for many, particularly for communities that have historically faced systemic racism and barriers to healthcare. These include Black, Latino, Indigenous, rural, immigrant, LGBTQ+, disabled, and low-income communities. The overturning of Roe v. Wade has further exacerbated these disparities, with abortion bans and restrictions disproportionately impacting people of colour and marginalised communities.

As of August 31, 2023, 18 states have banned or severely restricted abortion in the months following the Supreme Court's decision. These states have introduced varying gestational limits, such as the 15-week ban on abortion in Mississippi, which was at the centre of the Dobbs v. Jackson case. Other states are actively working towards passing additional bans, signalling a continued trend towards restricting abortion access.

On the other hand, some states have taken proactive measures to protect and expand abortion access, recognising its essential role in healthcare. These states have introduced policies to strengthen abortion rights and prepare for an anticipated increase in demand for abortion services as patients travel across state lines to access care. The dynamic and evolving nature of state laws and policies surrounding abortion underscores the importance of staying informed about the legal landscape in one's specific state.

Decriminalisation of abortion

In the United States, the Supreme Court's decision in Dobbs v. Jackson Women's Health Organization in June 2022 overturned Roe v. Wade, eliminating the federal constitutional right to abortion. This has resulted in a national divide, with some states implementing bans and others protecting access to abortion.

In Australia, abortion has been removed from criminal law in four jurisdictions: the Australian Capital Territory, Victoria, Tasmania, and the Northern Territory. This reclassification of abortion from a crime to healthcare is a goal of feminist and pro-choice activists and aligns with human rights principles. While decriminalisation is a significant achievement, it does not necessarily lead to improved access to abortion services, especially in the short term.

In the Australian Capital Territory, abortion was decriminalised in 2002, and the most recent decriminalisation occurred in the Northern Territory in 2017. In Victoria and Tasmania, decriminalisation took place in 2008 and 2013, respectively. These reforms have had varying impacts on access to abortion services, with some jurisdictions experiencing a decline in public hospital services and private clinics, while others have seen increased availability of early medical abortion.

Decriminalisation contributes to timely and easy access to abortion services by legislating for safe access zones and requiring doctors with conscientious objections to provide referrals to other practitioners. However, the continued exceptional status of abortion, not based on clinical reasons, demonstrates the grip that moral discourse and medical authority still have on women's reproductive lives.

While decriminalisation is a crucial step towards improving access to abortion, ongoing activism and advocacy are necessary to ensure equitable access. The public health system must take responsibility for providing adequate abortion services, addressing the needs of all women, especially those facing geographical and financial barriers.

International abortion law

Abortion laws vary across the world, with some countries freely allowing abortions on request, while others enforce varying degrees of regulation or prohibition. The international trend, however, leans towards the liberalization of abortion laws, with over 60 countries and territories having relaxed their abortion laws in the last 30 years.

Human Rights and Abortion

International human rights law requires that abortion be available when carrying a pregnancy to term would cause substantial pain or suffering, or when a woman's life or health is at risk. States are prohibited from regulating abortion in a way that forces women to resort to unsafe procedures. Instead, they are obligated to take steps to reduce maternal morbidity and mortality and protect women from the risks associated with unsafe abortions.

Grounds-Based Approaches

Most countries permit abortions under specific circumstances or "grounds", even when criminalized. These grounds vary widely but often include clinical indications (e.g., risk to the pregnant woman's health or fetal impairment), circumstances of conception (e.g., rape), and socioeconomic factors (e.g., economic hardship). Grounds-based approaches are often accompanied by gestational age limits, with abortions available on request up to a specified age and then limited to specific grounds thereafter.

Global Abortion Rates and Trends

According to a 2007 study by the Guttmacher Institute and the World Health Organization, abortion rates are similar in countries where the procedure is legal and where it is not due to the unavailability of modern contraceptives in areas with abortion restrictions. The study also found that the number of abortions worldwide is declining due to increased access to contraception.

Regional Differences

Latin America

The Catholic Church's influence in Latin America has resulted in strong opposition to abortion legalization. The American Convention on Human Rights, with 23 Latin American signatories, declares that human life begins at conception. Abortion on request is only legal in Cuba, Uruguay, Argentina, Colombia, and parts of Mexico. Most other Latin American nations allow abortion only under restricted circumstances, while El Salvador, Honduras, Nicaragua, and the Dominican Republic have complete bans.

Europe

In 2024, France became the first country to explicitly protect abortion rights in its constitution. Several other European countries, including the United Kingdom, Canada, Austria, Sweden, Italy, and Belgium, have legalized abortion, but the circumstances under which it is permitted vary.

United States

The United States has seen a recent regression in abortion rights with the overturning of Roe v. Wade in 2022, which removed nationwide protections. Now, abortion laws vary at the state level, with some states criminalizing the procedure while others strengthen protections.

Asia

Some Asian countries, like Japan, have legalized abortion, while others, such as El Salvador, enforce strict abortion laws, even in cases of rape, incest, or risk to the mother's health.

Frequently asked questions