Us Abortion Law: Understanding The Complex Legal Landscape

Abortion law in the United States has been a divisive issue in politics and culture wars, with the debate framed as a battle between the pro-choice and pro-life labels. In June 2022, the Supreme Court's decision to overturn Roe v. Wade removed the federal constitutional right to abortion, allowing individual states to regulate abortion. Since then, many state legislatures have created new abortion restrictions and bans, with abortion now illegal in 14 states. The abortion-rights movement advocates for patient choice and bodily autonomy, while the anti-abortion movement maintains that the fetus has a right to live.

The impact of the Supreme Court's overturning of Roe v. Wade in 2022

The US Supreme Court's overturning of Roe v. Wade in 2022 has had a profound impact on abortion access and reproductive rights in the country. Here are some key impacts of the decision:

• Elimination of the Federal Constitutional Right to Abortion: The ruling in Dobbs v. Jackson Women's Health Organization effectively eliminated the federal constitutional right to abortion, which had been in place for nearly 50 years. This decision gave individual states the power to set their own abortion policies, resulting in a fragmented landscape of abortion laws across the country.
• Increase in State Abortion Restrictions: In the wake of the ruling, many state legislatures have enacted new abortion restrictions or bans, and others have started enforcing existing ones. As of October 2024, 14 states have implemented near-total abortion bans, and several others have banned abortion after six weeks of pregnancy.
• Impact on Marginalized Groups: Research indicates that abortion bans disproportionately affect people from marginalized communities. Individuals facing systemic racism and oppression may encounter compounding barriers to obtaining an abortion, further exacerbating existing inequalities.
• Uncertainty and Legal Challenges: The post-Roe landscape has created uncertainty for those seeking abortions, with varying laws and restrictions across states. Legal challenges to state abortion laws have also emerged, with judges in some states striking down abortion bans and reinstating protections for abortion rights.
• Rise in Self-Managed Abortions: The overturning of Roe v. Wade has led to a significant increase in self-managed abortions, particularly in states with restrictive abortion laws. This trend has raised concerns about the safety and accessibility of abortion services.
• Impact on Public Opinion: Public opinion polls following the ruling showed that a majority of Americans disapproved of the decision to overturn Roe v. Wade, with 62% saying abortion should be legal in all or most cases. However, there were notable partisan differences, with Republicans and Democrats sharply divided in their views.
• State-by-State Battle for Abortion Rights: With reproductive rights now decided at the state level, the battle for abortion rights continues in state legislatures and courts. Several state constitutions have been interpreted by high courts to guarantee abortion rights or protect access, while other states have passed laws restricting abortion.

State-level abortion laws and policies

In June 2022, the US Supreme Court overturned Roe v. Wade, eliminating the federal constitutional right to abortion and allowing states to ban abortion outright. Since then, 14 states have made abortion illegal, and many state legislatures have created new abortion restrictions and bans, or have begun enforcing existing ones.

As of October 2024, 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 based on gestational duration.

The legality of abortion varies considerably from state to state. For example, abortion is illegal in Alabama, with exceptions to preserve the pregnant individual's life or physical health, while abortion is legal in Alaska at all stages of pregnancy.

The landscape of abortion access in the US continues to shift rapidly, and the impact of abortion bans is felt most by people in marginalized groups. The uneven post-Roe landscape makes navigating the legality of abortion difficult, and state restrictions make accessing care challenging.

The impact of abortion restrictions on marginalised groups

The US Supreme Court's decision to overturn Roe v. Wade in June 2022 has had a profound impact on abortion access across the country, with many state legislatures creating new abortion restrictions and bans. This shift has disproportionately affected marginalised groups, particularly low-income individuals and people of colour.

Health and Financial Ramifications

The lack of access to safe abortions for marginalised groups can have a range of health and financial consequences. Carrying a pregnancy to term can endanger the pregnant person's life, disrupt educational plans, and impact their career trajectory, exacerbating existing disadvantages. For instance, in the US, maternal mortality rates are significantly higher compared to other developed nations, and these rates are even higher for Black mothers. Abortion bans will undoubtedly increase maternal mortality, especially among Black individuals, as they may not have access to safe and timely abortions.

Systemic Barriers

Individuals facing systemic racism and oppression may encounter compounding barriers to obtaining an abortion. These barriers include the cost of travelling to states where abortions are still legal, as well as restrictive state laws that create obstacles to accessing abortion services. For example, some states require parental permission or notification for young women seeking abortions, while others have statutory waiting periods or restrict the use of private insurance or Medicaid to cover abortion care. These restrictions disproportionately affect marginalised groups, who may already face limited access to healthcare and social services.

Impact on Marginalised Communities

The impact of abortion restrictions on marginalised communities is evident in the statistics. While exact estimates vary, it is well-established that a significant proportion of individuals who receive abortions annually are Black, and the majority are low-income. The percentage of abortions obtained by Black women aged 15 to 44 is higher than that of Hispanic and white women in the same age group. Additionally, abortion restrictions can lead to an increased likelihood of women falling below the federal poverty line, as well as higher average debt.

Limited Access to Healthcare

The restrictions on abortion access further marginalise communities that already struggle with inaccessible or ineffective healthcare systems. This is particularly prevalent in Southern states, where there are higher rates of poverty and racial disparities. The impact of historical racism and systemic issues compound the disadvantages faced by Black, Latino, Indigenous, and rural populations in these areas, and abortion bans only serve to exacerbate these issues.

The legality of abortion pills

The US Supreme Court's decision to overturn Roe v. Wade in June 2022 has resulted in a rapidly changing landscape for abortion access in the United States. While the federal constitutional right to abortion has been eliminated, the state-by-state battle for abortion rights continues, with varying laws and policies in place across the country. This dynamic context extends to the legality of abortion pills, which have become a central focus in the ongoing debate surrounding abortion access.

Abortion pills, typically involving a combination of mifepristone and misoprostol, have been approved by the US Food and Drug Administration (FDA) for use through 10 weeks of gestation. This method of medication abortion has been available in the US since 2000 and offers a safe and effective alternative to procedural abortion, which must be performed in a clinical setting. The use of abortion pills has been steadily increasing, with nearly two-thirds of abortions in the US being medication abortions.

The recent reclassification of mifepristone and misoprostol as "controlled substances" in Louisiana has raised concerns among medical professionals, who warn that this could endanger women's lives by restricting access to medications used not only for abortion but also for treating postpartum haemorrhage and other conditions. This reclassification is unique to Louisiana, and pregnant women who obtain these drugs for their own use are exempt from punishment under the law.

The uneven landscape of abortion pill legality across states has led to confusion and challenges in accessing abortion care. The risk of prosecution for individuals seeking medication abortion in states where it is banned or restricted is considered low, but abortion bans often target those who facilitate the procedure, such as doctors or drivers. Additionally, the rise of telehealth providers and virtual clinics has further complicated the legal landscape, with some providers operating outside of state laws and federal regulations.

The role of telehealth in abortion access

Telehealth for abortion care has been expanding since its introduction in the United States in 2020. However, the role of this model in addressing geographic barriers to and inequities in abortion access remains unclear.

Reducing travel barriers

A study by the University of California, San Francisco, found that telehealth can play a key role in helping people obtain a wanted, timely abortion, especially for marginalised patient populations. The study found that patients averted a median of 10 miles and 25 minutes of round-trip driving, and 1 hour 25 minutes of round-trip public transit time. This benefit was especially pronounced for people who already face structural barriers to abortion care, such as younger people, those experiencing food insecurity, those residing in rural areas, and those who lived further from an abortion facility.

Promoting health equity

Telehealth for abortion care can increase health equity by improving access to and quality of care, providing culturally competent care, and by generating cost efficiencies. Telehealth abortion has the potential to address geographic inequities in access to care for those living in abortion deserts or rural areas within protected access states. It can also help alleviate unique logistical and privacy challenges faced by young people.

Overcoming regulatory barriers

To expand access to telehealth for medication abortion care, certain regulatory barriers must be removed. Telehealth for medication abortion care is banned or heavily regulated in many states — usually through restrictions that mandate medically unnecessary interventions, such as ultrasounds, blood testing, or physical exams/in-person visits, which are not evidence-based and do not exist for other health services. The best practice would be to defer to licensed providers’ clinical judgment for medication abortion via telehealth, as we do for other services, like diabetes or hypertension.

Improving coverage

Commercial coverage of telehealth lags behind Medicaid and often does not cover all modalities. To increase equitable and expanded access to abortion, states can use state-only dollars to cover abortion and increase reimbursement rates for telehealth, generally and for abortion care.

Enhancing education and referrals

Among physicians looking to refer their patients for abortion care, about half did not know how or where to make these referrals. Providers must receive training and education, including referral pathways and the applicable restrictions in their states. Robust referral channels with warm handoffs must be developed and reinforced to enable access and support continuity of care.

Frequently asked questions