Abortion Law: Current Complexities And Confusion

Abortion laws in the United States have undergone a significant shift in recent years, with the Supreme Court's overturning of Roe v. Wade in June 2022. This decision eliminated the federal constitutional right to abortion, giving individual states the power to impose their own regulations. As a result, abortion laws now vary widely across the country, with some states banning abortion outright, while others protect and expand access to it. This has led to a highly uneven landscape, with access to abortion clinics concentrated on the coasts, while much of the South and Midwest has restricted or banned the procedure. The legal battle over abortion continues to play out in state legislatures and courts, with ongoing challenges to various state laws.

Abortion laws by state

The legality of abortion in the United States varies significantly depending on the laws of each state. In June 2022, the US Supreme Court overturned Roe v. Wade, which had protected abortion rights for nearly 50 years. Since then, states have been free to create their own abortion laws.

States with Illegal Abortion

Abortion is illegal in 14 states, with few exceptions: Alabama, Arkansas, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Mississippi, Missouri, Oklahoma, South Carolina, Tennessee, Texas, and Wyoming.

States with Gestational Age Restrictions

Some states allow abortion up to a certain point in the pregnancy:

• Arizona allows abortions up to 15 weeks.
• Florida allows abortions up to 6 weeks, with exceptions for rape, incest, human trafficking, and fatal fetal abnormalities.
• North Carolina allows abortions up to 12 weeks, 20 weeks in the case of rape or incest, and 24 weeks in the case of a "life-limiting" fetal abnormality.
• Utah allows abortions up to 18 weeks.

States with Legal Abortion

Some states allow abortion with fewer restrictions:

Alaska, 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, Vermont, Virginia, Washington, and Wisconsin.

The overturning of Roe v. Wade

The 1973 Roe v. Wade ruling recognised that the decision to continue or end a pregnancy belongs to the individual, not the government. The Supreme Court held that the specific guarantee of "liberty" in the Fourteenth Amendment of the U.S. Constitution, which protects individual privacy, includes the right to abortion prior to fetal viability.

Roe v. Wade was a landmark decision that made access to abortion a federal right in the United States. The decision was a 7-2 ruling that unduly restrictive state regulation of abortion is unconstitutional. The Supreme Court recognised that the right to liberty in the Constitution, which protects personal privacy, includes the right to decide whether to continue a pregnancy.

The only alternative to abortion is childbirth, which has a 14 times higher risk of death than abortion. Denying a person access to a wanted abortion forces people to assume significant medical risk against their will. A recent study out of Colorado predicts a significant rise in the maternal mortality rate, especially among Black women, who already experience a high rate of death in childbirth.

The Dobbs ruling

The case concerned the constitutionality of a 2018 Mississippi state law that banned most abortion operations after the first 15 weeks of pregnancy. Jackson Women's Health Organization, Mississippi's only abortion clinic at the time, sued Thomas E. Dobbs, a state health officer. Lower courts had blocked enforcement of the law, citing the ruling in Planned Parenthood v. Casey, which prevented states from banning abortion before fetal viability, generally within the first 24 weeks.

The Supreme Court's decision in Dobbs overruled these lower court rulings and held that abortion is neither a constitutional right mentioned in the Constitution nor a fundamental right implied by the concept of ordered liberty. The Court's ruling effectively eliminated the constitutional right to abortion nationwide, and as of April 2024, 14 states have implemented abortion bans, 11 states have placed gestational limits, and 25 states and the District of Columbia provide broader access to abortions.

The decision in Dobbs has sparked widespread protests and counter-protests, and there have been conflicting analyses of its impact on abortion rates. However, support for legalized abortion access has risen in national public opinion surveys following the ruling. The Dobbs ruling has also had a significant impact on state-level abortion policies, with several states immediately introducing abortion restrictions or reviving dormant laws.

State abortion bans

In June 2022, the US Supreme Court overturned Roe v. Wade, which had previously legalised abortion across the US. This decision has opened the door for states to ban abortion. As of October 2024, 14 states have made abortion illegal, with 41 states having abortion bans in effect with only limited exceptions.

The Supreme Court's ruling in Dobbs v. Jackson Women's Health Organization has resulted in nearly two dozen US states banning or limiting access to abortion. The fight over abortion is now underway in state legislatures and courts. For example, the Georgia Supreme Court reinstated the state's six-week ban, while a judge in North Dakota overturned the state's near-total ban, allowing abortions to take place until viability. However, there are no remaining clinics in North Dakota.

Abortion bans can take several forms. Some states have total abortion bans, while others have bans based on gestational duration, prohibiting abortion before a certain number of weeks. Some states ban abortion at or before 18 weeks, while others ban abortion at some point after 18 weeks. Some states also have laws that prohibit specific methods of abortion, such as dilation and extraction (D&X) or dilation and evacuation (D&E) procedures.

In addition to state bans, some states criminalise people who self-manage their abortion, i.e. end their pregnancies outside of a healthcare setting. There are also states that have laws in place that restrict abortion providers, requiring them to notify parents or legal guardians of young people seeking abortions and to obtain their consent. These laws can make it more difficult for people, especially those from marginalised groups, to access abortion care.

Abortion restrictions

In June 2022, the U.S. Supreme Court overturned Roe v. Wade, which for nearly 50 years protected the federal constitutional right to abortion. The overturning of Roe v. Wade has given states the leeway to restrict abortion or prohibit it altogether. As a result, abortion access and laws now vary by state.

• Gestational duration bans: These are laws that prohibit abortion after a certain number of weeks of pregnancy, often defined as the number of weeks since the last menstrual period (LMP) or from fertilization. Most state abortion statutes refer to the "probable gestational age," which is typically determined by LMP. For example, some states ban abortion at or before 18 weeks' gestation, while others ban it at some point after 18 weeks.
• Viability bans: Many statutory bans define limits on abortion based on the concept of viability, which is a non-medical term used to describe the point at which a fetus can survive outside the uterus, generally between 24 and 26 weeks LMP.
• Specific method bans: These laws prohibit a specific method of abortion care, most commonly dilation and extraction (D&X) procedures and dilation and evacuation (D&E) procedures.
• Reason bans: Laws that prohibit abortion if sought for a particular reason, such as the sex, race, or genetic anomaly of the fetus. However, there is no evidence that people are seeking abortion care because of the sex or race of the fetus.
• Criminalization of self-managed abortion (SMA): Some states criminalize individuals who self-manage their abortion, i.e., end their pregnancies outside of a healthcare setting.
• Early gestational age bans: Laws that ban abortion at an early gestational age, such as the Texas SB 8 "vigilante law," are enforced through private rights of action. This allows members of the public to sue abortion providers and those who help others access abortion care.
• Targeted Regulation of Abortion Providers (TRAP): TRAP laws single out physicians who provide abortion care and impose burdensome legal requirements that are different from those imposed on physicians providing comparable types of care. These laws do not increase patient safety and go against evidence-based clinical guidelines. TRAP laws can regulate the locations where abortion is provided, facility specifications, provider qualifications, and reporting requirements. Compliance with TRAP laws can be costly and may require unnecessary facility modifications.
• Parental involvement laws: These laws require providers or clinics to notify parents or legal guardians of young people seeking abortion prior to the procedure (parental notification) or to obtain parental consent.
• Mandatory counselling or ultrasound laws: Laws that require pregnant individuals to receive biased and often inaccurate counselling or an ultrasound prior to receiving abortion care. These laws may also mandate a waiting period between the counselling/ultrasound and the abortion care, serving no medical purpose but instead seeking to dissuade people from exercising their bodily autonomy.

Impact of Abortion Restrictions

The impact of abortion restrictions falls disproportionately on marginalized groups, with individuals facing systemic racism and other forms of oppression encountering compounding barriers to obtaining an abortion. Additionally, states with the most limited abortion access report higher rates of maternal and infant mortality, as well as greater economic insecurity.

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