Abortion Law: Understanding The Recent Changes And Implications

Abortion laws in the United States have been rapidly changing since the Supreme Court's 2022 ruling in Dobbs v. Jackson Women's Health Organization, which overturned Roe v. Wade and eliminated the federal constitutional right to abortion. As of October 2024, 41 states have abortion bans in effect with only limited exceptions, and 13 states have a total abortion ban. The Republican Study Committee has endorsed a national abortion ban with zero exceptions for rape or incest in its latest budget. This has sparked protests and concerns about the impact on marginalized groups and reproductive freedom. The future of abortion laws remains uncertain, with ongoing legal battles and political debates shaping the landscape of abortion access across the country.

The US Supreme Court overturns Roe v. Wade

On June 24, 2022, the US Supreme Court officially reversed Roe v. Wade, a five-decade-old decision that guaranteed a woman's constitutional right to abortion. The ruling, penned by Justice Samuel Alito, stated that the 1973 Roe judgement and subsequent reaffirmations were “egregiously wrong” and amounted to "an abuse of judicial authority." The decision means that abortion rights will be rolled back in nearly half of the states, with more restrictions expected to follow.

The Supreme Court's decision to overturn Roe v. Wade has had a profound impact on abortion access across the United States. The ruling has effectively ended the constitutional right to abortion, allowing states to implement their own abortion laws. As a result, 14 states have made abortion illegal, with more expected to follow. These laws include a mix of pre-Roe bans that were previously unenforceable and new restrictions enacted following the Supreme Court's decision.

The post-Roe landscape of abortion access is complex and rapidly evolving. Some states have total abortion bans, while others have gestational duration bans, prohibiting abortion after a certain number of weeks. Additionally, some states have trigger laws, which are designed to take effect following the overturning of Roe. These laws vary in their specifics, with some taking effect immediately and others requiring further action from state officials.

The loss of the constitutional right to abortion has disproportionately impacted marginalized groups, including people of colour and those from low-income backgrounds. Criminal prosecutions related to pregnancy, pregnancy loss, abortion, or birth have spiked in the year following the overturning of Roe, with the majority of defendants coming from marginalized communities.

The Supreme Court's decision to overturn Roe v. Wade has had far-reaching consequences, reshaping the landscape of abortion access and reproductive rights across the United States. The impact of this decision will continue to unfold in the coming months and years, with ongoing legal battles and a potential shift in public attitudes towards abortion.

State abortion laws and policies

As of May 2024, 14 states have enacted near-total abortion bans, while three states—Georgia, South Carolina, and Florida—have banned abortion past approximately six weeks of pregnancy. This has resulted in an uneven landscape of abortion access across the country, with a concentration of bans in the South and Midwest regions. The impact of these bans falls disproportionately on marginalized groups, creating compounding barriers for individuals facing systemic racism and other forms of oppression.

The specific abortion restrictions and policies vary by state. Some states have enacted bans based on gestational duration, with 28 states imposing bans at different points during pregnancy. Eight states ban abortion at or before 18 weeks of gestation, while 20 states ban abortion at some point after 18 weeks. These bans often include limited exceptions to protect the health or life of the pregnant person, in cases of lethal fetal anomalies, or when the pregnancy is a result of rape or incest. However, these exceptions are often unworkable due to vague and contradictory language, as well as cumbersome requirements.

In addition to state-level abortion bans, there are ongoing efforts at the federal level to restrict abortion access. The Republican Study Committee, representing a significant portion of House Republican leadership, has endorsed a national abortion ban with no exceptions for rape or incest. Their proposed budget includes measures to eliminate reproductive freedom for women, restrict access to IVF treatment, and roll back policies that ensure access to abortion care for veterans. These proposals reflect a broader agenda to impose a nationwide abortion ban and further restrict reproductive rights.

Gestational limits and exceptions

In Europe, abortion later in pregnancy is only permitted if specific circumstances are present, generally when the pregnancy represents a serious danger to the life or physical/mental health of the woman, or when a serious malformation or anomaly of the fetus is diagnosed. The gestational limits for abortion in European countries vary, with the most common limit being 10-14 weeks, 18 weeks in Sweden and Iceland, and 24 weeks in the Netherlands and Great Britain.

In the United States, the legality of abortion later in pregnancy has changed dramatically post-Roe. Previously, states could regulate abortion after viability, which is generally considered to be between 24 to 28 weeks after a patient's last menstrual period. Now, states have a variety of gestational limits, with some states banning abortion as early as six weeks and others having no restrictions at all. Over half of the states have restrictions in place only at or after viability or have no limit at all. Most states with restrictions have exceptions, including to preserve a pregnant person's life or health, though they are often narrowly defined.

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

Criminal prosecutions related to pregnancy

In the year following the overturning of Roe v. Wade, at least 200 people in the US faced criminal charges related to their pregnancies, according to a report by the advocacy group Pregnancy Justice. This is the highest number of cases in a single year ever recorded, and the report's researchers warn that it is likely an undercount. The majority of these charges were related to substance use during pregnancy, and in two-thirds of the cases, substance use was the only allegation. Six states—Alabama, Mississippi, Ohio, Oklahoma, South Carolina, and Texas—had the highest number of prosecutions.

The report highlights that almost none of the prosecutions were brought under state abortion laws. Instead, law enforcement charged pregnant women with crimes such as child neglect or endangerment, interpreting the definition of "child" to include a fetus. This approach is based on the legal concept of "fetal personhood," which grants a fetus, embryo, or fertilized egg the same legal rights as a born person. By using this concept, prosecutors can argue that a pregnant person has committed a crime by endangering their own pregnancy or causing pregnancy loss.

The push for criminal charges related to pregnancy is often justified by proponents as a way to address substance use disorders and protect the health of the fetus. However, critics argue that these arrests and prosecutions deter people from seeking help for their addictions due to the fear of arrest or losing custody of their children. The majority of those charged are low-income, and in many cases, healthy babies are born with no signs of harm.

The impact of these prosecutions extends beyond the legal realm. There is a growing concern about the surveillance of pregnancy and the potential for further erosion of privacy rights. For example, the Heritage Foundation's Project 2025 playbook suggests that the Centers for Disease Control and Prevention (CDC) should expand its data collection to include information on miscarriages, stillbirths, and treatments that may result in the death of a child. This proposal raises questions about the balance between public health surveillance and individual privacy rights.

The anti-abortion movement's goals and changes

The anti-abortion movement, also known as the pro-life movement, advocates against the practice of abortion and its legality. The movement includes a variety of organizations, with no single centralized decision-making body, and is associated with several Christian religious groups, especially the Catholic Church and evangelical churches. The primary goal of the anti-abortion movement is to protect what they believe to be the rights of the fetus, which they consider to be a person with legal rights from the moment of conception. They argue that abortion is the taking of a human life and, therefore, should be prohibited or restricted on ethical, moral, or religious grounds.

In the United States, the anti-abortion movement has been politically active since the 1973 Supreme Court decisions in Roe v. Wade and Doe v. Bolton, which struck down state laws restricting abortion in the first trimester of pregnancy. The movement has campaigned to reverse these decisions and promote legislative changes or constitutional amendments that prohibit or restrict abortion. They have also supported laws that restrict abortion access, such as gestational duration limits and requirements for ultrasounds or fetal burial. The movement has been successful in recent years, with a growing number of states enacting abortion restrictions or bans. As of October 2024, 41 states have abortion bans in effect, with 13 states having a total abortion ban.

The anti-abortion movement has also influenced policy outside the United States, particularly in Europe and Canada. In Europe, abortion law varies by country, with some countries legalizing it through parliamentary acts while others constitutionally ban or heavily restrict it. In Canada, abortion is legal at all stages of pregnancy, but there have been efforts by anti-abortion groups and politicians to restrict it.

The tactics and strategies of the anti-abortion movement vary. Some groups focus solely on promoting the anti-abortion cause, while others support the broader family values cause. The movement has utilized demonstrations, protests, lobbying, and legal challenges to advance its goals. They have also spread misinformation and unsupported claims about the alleged physical and mental health risks of abortion. Additionally, some activists have resorted to violence and extreme measures, such as arson, bombings, and murders of abortion providers.

The anti-abortion movement has faced opposition from abortion-rights advocates, also known as the pro-choice movement, who argue that pregnant women should have the right to choose whether or not to have an abortion. The abortion-rights movement has worked to protect and expand access to abortion and ensure that it remains safe and legal.

Frequently asked questions