The Right To Choose: Laws Protecting Abortion Access

The Hyde Amendment is a legislative provision barring the use of federal funds to pay for abortions, except to save the life of the woman, or if the pregnancy arises from incest or rape. The amendment was first passed in 1977 and has been re-enacted every year since. The amendment has been subject to several alterations, with the version in force from 1981 until 1993 prohibiting the use of federal funds for abortions except where the life of the mother would be endangered if the fetus were carried to term.

The Hyde Amendment has been criticised for disproportionately affecting low-income women, women of colour, younger women, and immigrants. Since the passage of the amendment, more than one million women have been unable to afford abortions.

The Hyde Amendment

The amendment has been sponsored and supported by legislators who oppose abortion and object to the federal government's use of taxpayer money for abortion services. It has guided public funding for abortions under the joint federal-state Medicaid programs, with states required to cover abortions that meet the federal exceptions. While most states meet these requirements, some use their own funds to pay for all or most medically necessary abortions, often as a result of a court order.

The impact of the Hyde Amendment on women's access to abortion services, especially those with Medicaid coverage, has been significant. Medicaid is a significant source of health coverage for women with higher rates of abortion, including low-income women and women of color. The lack of Medicaid coverage for abortion can pose a major barrier, leading to financial challenges and difficulties in accessing abortion services, especially for those with low incomes.

Pro-abortion rights advocates are working to expand and protect abortion access through court challenges, state and federal laws, and federal legislation such as the Abortion Justice Act and the EACH Woman Act. On the other hand, those who oppose abortion aim to make the Hyde Amendment permanent and restrict abortion funding across government programs.

State-by-state legal status

The state-by-state legal status of abortion in the US is in flux following the Supreme Court's overturning of Roe v. Wade in June 2022. This ruling removed the federal constitutional right to abortion and allowed individual states to regulate any aspect of abortion not preempted by federal law. As of October 2024, 41 states have abortion bans in effect, with only limited exceptions.

States with a total abortion ban

Thirteen states have a total abortion ban:

• Alabama
• Louisiana
• Tennessee
• West Virginia
• Texas
• Missouri
• Oklahoma
• Arkansas
• Kentucky
• Mississippi
• South Dakota
• Indiana

States with abortion bans based on gestational duration

Twenty-eight states have abortion bans based on gestational duration:

• Eight states ban abortion at or before 18 weeks' gestation
• Twenty states ban abortion at some point after 18 weeks

States without gestational limits

Nine states and the District of Columbia do not restrict abortion on the basis of gestational duration:

• California
• Connecticut
• Colorado
• Illinois
• Kansas
• Maine
• Michigan
• Minnesota
• North Dakota
• Ohio
• Oregon
• Vermont
• Washington
• New York
• Massachusetts

Other notable state laws

Some states have additional laws that impact abortion access. For example, some states require parental notification or consent for minors seeking abortions, while others have mandated waiting periods or ultrasounds.

In addition, some states have laws that provide public funding for abortions under certain circumstances. As of August 31, 2023, 32 states and the District of Columbia follow the federal standard and provide abortions in cases of life endangerment, rape, and incest. Four of these states also provide state funds for abortions in cases of fetal impairment or to prevent grave, long-lasting damage to the person's physical health.

The Dobbs decision

Dobbs v. Jackson Women's Health Organization was a case that challenged the constitutionality of Mississippi's Gestational Age Act, passed in 2018. This Act prohibited abortions after 15 weeks, except in the case of medical emergencies or severe fetal abnormalities. The Act also enforced penalties, such as license suspension, for abortion providers. The Jackson Women's Health Organization filed a suit in a federal district court, challenging the constitutionality of the Gestational Age Act.

The Supreme Court's decision in Dobbs v. Jackson Women's Health Organization held that the Constitution of the United States does not confer a right to abortion. This decision overruled Roe v. Wade and Planned Parenthood v. Casey, returning the power to regulate abortion to federal and state legislatures. The Court's decision stated that abortion is neither a constitutional right mentioned in the Constitution nor a fundamental right implied by the concept of ordered liberty.

The Partial-Birth Abortion Ban Act

The history of the Act dates back to 1995 when Dr. Martin Haskell presented a paper on the dilation and extraction (D&X) procedure at a meeting of the National Abortion Federation. The National Right to Life Committee obtained the paper and began a campaign to outlaw the procedure, coining the term "partial-birth abortion". Despite initial support in Congress, the Partial-Birth Abortion Ban Act was vetoed twice by President Bill Clinton in 1996 and 1997.

In 2000, the Supreme Court ruled in Stenberg v. Carhart that a Nebraska ban on partial-birth abortions was unconstitutional due to its vague language and lack of an exception for the health of the mother. This decision invalidated similar laws in 29 out of 31 states. However, in 2003, the Partial-Birth Abortion Ban Act was reintroduced and signed into law by President George W. Bush. The Act was challenged in court, with several district courts deeming it unconstitutional due to the absence of a health exception for the woman. Nonetheless, in 2007, the Supreme Court upheld the constitutionality of the Act in Gonzales v. Carhart, finding that it pertained specifically to a particular abortion procedure and was sufficiently distinct from the Nebraska law struck down in 2000.

The Helms Amendment

The amendment has been criticised as a dangerous barrier to safe abortions for people around the world, reducing the availability of safe and legal abortions, and denying healthcare providers life-saving equipment and training. It has also been labelled as imperialistic and hypocritical, as the United States has important exceptions to the ban on federal funding for abortions, whereas there are none with regard to foreign assistance.

The Guttmacher Institute estimates that repealing the Helms Amendment could result in 19 million fewer unsafe abortions and 17,000 fewer maternal deaths annually. The Abortion Is Healthcare Everywhere Act, introduced in Congress, is a bill that would repeal the Helms Amendment and replace it with language explicitly stating that foreign assistance funds can be used to provide comprehensive reproductive healthcare, including abortion services.

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