Abortion Law In The Us: Current Legal Landscape

Abortion laws in the US have undergone a sea change since the US Supreme Court overturned the landmark Roe v. Wade ruling in June 2022. The ruling, which for nearly 50 years recognised a nationwide constitutional right to abortion, has now been reversed, leaving each state to decide on its abortion laws.

Currently, abortion is completely illegal, with few exceptions, in 13 states. The only place in the Southeast to access legal abortion after six weeks gestation is North Carolina, which bans abortion after 12 weeks.

Ten states that had so-called “trigger laws” intended to outlaw abortion when and if the Supreme Court reversed Roe, have completely banned the procedure. Two more states — Wyoming and Utah — also have trigger laws on the books, but they are tied up in court and abortion remains legal for the time being.

Since the ruling, some states have reacted by enacting measures to protect abortion access. Kansas became the first, as 59% of voters in August 2022, rejected a proposed constitutional amendment that would have paved the way for abortion bans. Later in the year, voters in Michigan, California and Vermont voted to enshrine abortion rights in their state constitutions. In early 2023, the Minnesota legislature became the first to pass a bill, which the governor signed into law, guaranteeing the right to abortion.

As of 2024, Alaska, California, Illinois, Kansas, Michigan, Minnesota, North Dakota, Ohio and Vermont have a right to abortion in their state constitutions, either explicitly or as interpreted by the state supreme court. Other states, such as Colorado and Massachusetts, protect abortion under state law. The state constitutions of Alabama, Louisiana, Tennessee, and West Virginia explicitly contain no right to an abortion.

The Supreme Court's ruling in Dobbs v. Jackson Women's Health Organization

In a 6-3 decision, the Supreme Court held that the Constitution does not confer a right to abortion and overruled both Roe v. Wade (1973) and Planned Parenthood v. Casey (1992). The Court's decision returned the issue of abortion regulation to the elected branches, allowing states to regulate any aspect of abortion not protected by federal statutory law.

The Court's ruling was based on the argument that abortion is neither a constitutional right mentioned in the Constitution nor a fundamental right implied by the concept of ordered liberty. The Court also found that abortion destroys "potential life" and cannot be constitutionally protected.

The ruling in Dobbs v. Jackson Women's Health Organization had profound cultural and social implications in the United States, sparking protests and counter-protests across the country. It also led to the introduction of abortion restrictions in several states and triggered a broader debate about women's rights and equality.

State-by-state abortion laws

As of October 2024, 41 states have abortion bans in effect, with only limited exceptions. 13 states have a total abortion ban, 28 states have abortion bans based on gestational duration, and 9 states and the District of Columbia do not restrict abortion on the basis of gestational duration.

Some states have trigger laws, which means that abortion is banned as soon as a foetal heartbeat is detected, which is often before a woman knows she is pregnant. These include Texas, which passed the Texas Heartbeat Act in 2021, and Oklahoma, which imposed a similar ban in May 2022.

Some states have a right to abortion in their state constitutions, including Alaska, California, Illinois, Kansas, Michigan, Minnesota, North Dakota, Ohio and Vermont. Other states, such as Colorado and Massachusetts, protect abortion under state law.

The abortion debate is a divisive issue in US politics and culture, though a majority of Americans support access to abortion.

The Texas abortion law

In 2022, the US Supreme Court overturned Roe v. Wade, removing the federal constitutional right to abortion and allowing individual states to regulate any aspect of abortion not preempted by federal law. Since then, abortion laws have varied widely across the US.

Texas enacted a law in 2022 that prohibits almost all abortions. Chapter 170A of the Texas Health & Safety Code prohibits abortions outright, except in certain circumstances. Section 170A.002 prohibits a person from performing, inducing, or attempting an abortion. There is an exception for situations in which the life or health of the pregnant patient is at risk. In order for the exception to apply, three factors must be met:

• A licensed physician must perform the abortion.
• The patient must have a life-threatening condition and be at risk of death or "substantial impairment of a major bodily function" if the abortion is not performed.
• The physician must try to save the life of the fetus unless this would increase the risk of the pregnant patient's death or impairment.

There are additional situations where the exception for the life or health of the patient does not apply. The penalties for performing an abortion in Texas include being charged with a first or second-degree felony, a civil penalty of at least $100,000, and the revocation of a physician or healthcare professional's license or permit.

In 2024, a Texas man dropped a lawsuit against women accused of helping his ex-wife obtain an abortion. Marcus Silva had sued his ex-wife's friends, Jackie Noyola and Amy Carpenter, along with Aracely Garcia, alleging that they had helped her obtain abortion pills in July 2022. Silva had asked for over $1 million in damages for their "criminal and murderous actions". Although abortion bans typically target providers and not patients, abortion rights advocates feared that this lawsuit would intimidate people from helping one another get abortions.

In January 2023, five women launched a class-action lawsuit against the State of Texas after being denied abortions despite grave risks to their lives. Four of the women travelled out of state to obtain an abortion, while the fifth only received the abortion in Texas when she was hospitalized. The case argues that the Texas abortion law, which allows abortion if there is a health risk to the mother, is too vague and that doctors will not perform an abortion for fear of legal repercussions.

The impact of abortion laws on maternal and infant mortality rates

Abortion laws have been shown to disproportionately affect low-income people of colour, immigrants, and non-English speakers. These restrictions create geographic, transportation, and financial barriers to obtaining an abortion, which can result in increased rates of maternal death and adverse outcomes.

States with more restrictive abortion laws tend to have higher maternal and infant mortality rates. This is especially true for Black birthing people, who are more than twice as likely to experience maternal mortality and severe maternal morbidity compared to White birthing people.

Abortion restrictions can also lead to a decrease in abortion training opportunities for medical professionals, exacerbating the existing shortage of abortion providers. This can further contribute to the racial inequities in maternal and infant health outcomes.

Additionally, restrictive abortion laws have been linked to increased rates of postpartum depression, psychological distress, and economic hardship, all of which can negatively impact maternal and infant health.

Overall, the evidence suggests that abortion restrictions have a detrimental effect on maternal and infant mortality rates, particularly for marginalised communities.

The future of abortion rights

Currently, abortion is completely illegal, with few exceptions, in 13 states. Ten states that had so-called "trigger laws" intended to outlaw abortion when and if the Supreme Court reversed Roe have completely banned the procedure. Two more states, Wyoming and Utah, also have trigger laws, but they are currently tied up in court, and abortion remains legal for the time being.

On the other hand, some states have reacted to Dobbs by enacting measures to protect abortion access. Kansas became the first state to do so, with 59% of voters rejecting a proposed constitutional amendment that would have paved the way for abortion bans. Other states, including California, Michigan, and Vermont, have voted to enshrine abortion rights in their state constitutions.

The current landscape is confusing and time-consuming for pregnant people to navigate, with a myriad of restrictions and protections varying from state to state. These laws include outright abortion bans, laws prohibiting abortions based on a pregnant person's reason for ending a pregnancy, and insurance restrictions that limit when or if private health insurance plans can pay for abortion procedures.

Frequently asked questions