Abortion Laws: Understanding Your Rights And Freedoms

Abortion laws vary widely across the world, with some countries allowing it on request, while others impose regulations, restrictions, or outright prohibitions. In the United States, abortion laws are determined at the state level, with some states prohibiting it entirely and others permitting it up to a certain point in the pregnancy. The Supreme Court's decision in Roe v. Wade established a federal right to abortion and prohibited states from banning it before the point of fetal viability. However, this ruling was overturned in 2022, allowing states to impose their own regulations. As a result, abortion laws in the US continue to evolve, with some states enacting stricter laws while others are protecting abortion rights through state constitutions and legislation. Globally, there is a trend towards the liberalization of abortion laws, with an increasing number of countries recognizing abortion rights as fundamental human rights.

Gestational limits

In countries that allow abortion on request, the most common gestational limit is 12 weeks. However, these countries often allow abortion under a range of circumstances after this limit. The shortest gestational limit for abortion on request is 8 weeks, while a few countries do not set a legal gestational limit. For example, Vietnam's Law on Protection of People's Health states that women have the right to have an abortion without specifying a gestational limit.

In countries with more restrictive abortion laws, such as those that only permit abortion when the woman's life or health is at risk, there is often no prescribed gestational limit. Bolivia and Burkina Faso, for instance, do not set a gestational limit for abortions performed to protect the woman's health or in cases of fetal impairment.

The World Health Organization (WHO) emphasizes that abortion may be necessary at any point during pregnancy to save the woman's life or minimize risk to her health. WHO also states that gestational limits should be evidence-based and not arbitrarily restricted.

In the United States, abortion laws vary widely from state to state. While some states have a right to abortion in their constitutions, others have criminalized abortion or imposed strict gestational limits. For example, Texas passed the Texas Heartbeat Act, banning abortions after cardiac activity is detected, usually around six weeks into pregnancy.

The United States is one of eight countries that allows abortion on demand without any gestational limits at the federal level, along with Australia, Canada, China, Guinea-Bissau, Mexico, South Korea, and Vietnam. This makes the U.S. abortion law far more permissive than most countries.

Parental consent

As of September 1, 2023, 36 states require parental involvement in a minor's decision to have an abortion, with 21 of these states requiring only parental consent. Six states require both parental notification and consent, while 10 states require only notification. In 11 states, identification is required for parental consent, and in four states, proof of parenthood is also necessary.

In certain situations, parental consent laws can be overridden by a court. This is known as "judicial bypass." Most states that require parental involvement make exceptions under certain circumstances, such as in cases of medical emergency, abuse, assault, incest, or neglect.

The specific requirements and exceptions for parental consent laws vary depending on the state, and these laws are subject to change. It is important to refer to the most up-to-date information for each state's laws regarding parental consent for minors seeking abortions.

Viability

In the United States, the Supreme Court's ruling in Roe v. Wade (1973) established a woman's right to abortion until the point of viability, which was defined as "potentially able to live outside the mother's womb, albeit with artificial aid". At the time, viability was generally placed at around seven months (28 weeks) but could occur earlier, even at 24 weeks. This ruling was modified in Planned Parenthood v. Casey (1992), which abandoned the trimester framework but maintained that women have a right to choose to have an abortion before viability.

Advancements in medical technology have since affected the understanding of viability. For example, the old trimester formula was ruled obsolete, and a new focus on the viability of the foetus was introduced. The Supreme Court's decision in Planned Parenthood v. Casey (1992) emphasised the right to abortion as grounded in the general sense of liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution. The ruling stated:

> "If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child."

The viability of a foetus is now often considered to be at 22 or 23 weeks, rather than 28 weeks. This shift in understanding has had legal implications, with some states passing laws to restrict late-term abortions. For example, Kansas passed a law in 2013 banning abortions after 22 weeks, and Alabama prohibits abortion after 15 weeks.

The legal status of abortion continues to be a divisive issue in the United States, with laws varying significantly from state to state. While some states prohibit abortion at all stages of pregnancy, others permit it up to a certain point, and some allow abortion throughout a woman's pregnancy. The Supreme Court's decision in Dobbs v. Jackson Women's Health Organization (2022) overturned Roe v. Wade and Planned Parenthood v. Casey, allowing states to impose any regulation on abortion that does not conflict with federal law. This has resulted in a patchwork of abortion laws across the country, with some states banning abortion almost entirely, while others have taken steps to protect abortion rights.

Globally, there is a trend towards the liberalisation of abortion laws, with more than 60 countries liberalising their laws over the past 30 years. However, the legal status of abortion varies widely among countries and territories, ranging from abortion being freely available on request to outright prohibition in all circumstances. Many countries that allow abortion have gestational limits, with the majority allowing abortion on request up to 12 weeks and for fetal impairment or risk to the woman's health up to 24 weeks.

State constitutions

Explicit Protection of Abortion Rights:

• Alaska, California, Illinois, Kansas, Michigan, Minnesota, North Dakota, Ohio, and Vermont have explicit provisions in their state constitutions that protect the right to abortion. These states have either enshrined this right through constitutional amendments or had it interpreted as such by their state supreme courts.
• Colorado, Massachusetts, and New Jersey are among the states that protect abortion rights under state law.

Lack of Protection for Abortion Rights:

The state constitutions of Alabama, Louisiana, Tennessee, and West Virginia explicitly state that they do not include any right to abortion.

Impact of State Constitutions:

• State constitutions have been instrumental in shaping abortion laws and access. For example, the Kansas Supreme Court ruled that the state constitution protects the right to abortion, preventing a total ban on abortion in the state.
• State constitutions also offer stronger legal grounds for protecting abortion rights and shielding access in highly restrictive parts of the country.
• The Montana Supreme Court ruled that abortion was implicitly granted as a right under the state constitution, but this decision is being challenged by legislative initiatives.
• In Vermont, voters amended the state constitution to explicitly include the right to "personal reproductive autonomy," which covers abortion.
• In contrast, some states, like Oklahoma, have banned abortion with almost no exceptions, even to protect the life or health of the pregnant person.

Ongoing Legal Battles:

• The legal landscape of abortion is constantly evolving, with court rulings and legislative actions shaping abortion access. For instance, the Arizona Supreme Court recently ruled that a pre-Roe v. Wade abortion ban from 1864 could be enforced, but this was later repealed by the state legislature.
• State constitutions are central to ongoing legal battles over abortion rights, with courts interpreting and applying these documents to shape abortion laws and access.

Criminalisation

The criminalisation of abortion is a highly divisive issue, with strong opinions on both sides of the debate. Criminalisation is often driven by religious beliefs, ethical convictions, and profound stigma. However, it is important to note that criminalisation does not necessarily stop abortions from happening. Instead, it pushes the procedure underground, leading to unsafe practices that put individuals' lives at risk.

In countries where abortion is criminalised or heavily restricted, people are forced to resort to unsafe methods, often performed by unlicensed practitioners. This can result in short- or long-term health problems, and even death. According to the World Health Organization (WHO), the rate of unsafe abortions is four times higher in countries with restrictive abortion laws compared to those where abortion is legal. The criminalisation of abortion also disproportionately impacts marginalised communities, including people on low incomes, refugees, migrants, LGBTIQA+ individuals, and racialised and Indigenous people, as they face additional barriers to accessing safe services.

The criminalisation of abortion is not just a matter of restricting access to a medical procedure, but a violation of fundamental human rights. International human rights bodies and experts have consistently affirmed that decriminalising and ensuring access to abortion are necessary to protect the rights of women and girls, including their rights to life, health, and bodily autonomy. By criminalising abortion, states infringe on individuals' right to make decisions about their own bodies and futures, which is a fundamental aspect of reproductive justice.

The trend towards liberalisation of abortion laws recognises abortion rights as fundamental human rights. Over the past 30 years, more than 60 countries and territories have liberalised their abortion laws, with only four countries rolling back the legality of abortion. This shift reflects a growing understanding that criminalisation causes enormous harm, including thousands of preventable deaths, the loss of educational and economic opportunities, and the deepening of historical marginalisation.

While the United States has been a notable outlier to this global trend, with the Supreme Court's overturning of Roe v. Wade in 2022, there are still states within the US that protect abortion rights. As of 2024, Alaska, California, Illinois, Kansas, Michigan, Minnesota, North Dakota, Ohio, and Vermont have a right to abortion in their state constitutions, while other states like Colorado and Massachusetts protect abortion under state law. Additionally, abortion rights movements have been actively pushing for the inclusion of abortion rights in state constitutions, with California, Michigan, Vermont, and other states enshrining these rights.

Frequently asked questions