Abortion Laws: New Legal Restrictions And Their Impact

Abortion laws have been a hotly contested topic in the United States in 2023, with several states introducing new restrictions or bans, while others have sought to protect access to abortion care. The US Supreme Court's decision to overturn Roe v. Wade in June 2022 eliminated the federal constitutional right to abortion, allowing states to create new abortion laws. As a result, about half of the US states have introduced bans or restrictions, with 13 states enforcing total bans and seven more restricting access under limits that would have been unconstitutional under Roe. However, 22 states and the District of Columbia have enacted 129 measures to protect abortion access, the highest number of protections ever enacted in a single year. These laws have been enacted through legislation and executive orders, with eight new states implementing shield laws to protect providers who treat out-of-state patients. The landscape of abortion access in the US remains fractured and rapidly shifting, with legal challenges and ballot measures continuing to shape abortion policy.

State-by-state abortion laws in the US

In June 2022, the US Supreme Court overturned Roe v. Wade, eliminating the federal constitutional standard that protected the right to abortion. This decision has allowed states to impose any regulation on abortion, provided it does not conflict with federal law.

Currently, abortion is illegal in 13 or 14 states, with some laws banning abortion at all stages of pregnancy, and others permitting it up to a certain point. Some states have also banned abortion past roughly six weeks of pregnancy.

In states where abortion is legal, several classes of restrictions may exist, such as parental consent or notification laws, requirements for patients to be shown an ultrasound before the procedure, mandatory waiting periods, and counseling requirements.

Some states have enacted laws or held ballot referendums to 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, such as Colorado and Massachusetts, protect abortion under state law.

The future of abortion in some states is uncertain due to legal challenges. For example, in Georgia, a judge struck down the state's six-week abortion ban in September 2024, but the Republican attorney general appealed, and the state supreme court reinstated the ban a week later.

The abortion landscape across the US is deeply uneven, with access to abortion clinics cut off across much of the South and Midwest but remaining strong on both coasts.

The Dobbs decision

The Supreme Court's decision in Dobbs v. Jackson Women's Health Organization held that the U.S. Constitution does not confer a right to abortion and that authority to regulate abortion is returned to the states. This ruling reversed the Court's previous decisions in Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), which had established a constitutional right to abortion and prohibited states from banning abortion before fetal viability, respectively.

The Dobbs ruling also had legal and political ramifications, with calls for the expansion of the Supreme Court and the codification of abortion rights into federal law. It also impacted other areas of law, such as in vitro fertilization and data privacy, and influenced the 2022 and 2024 U.S. elections, with abortion rights becoming a major issue for voters.

Gestational age bans

Pre-viability bans

Pre-viability bans prohibit abortion before the foetus reaches the age of viability, i.e. when it can survive outside the womb. In the majority of cases, this occurs at around 24 weeks, although survival is possible from 22 weeks. Pre-viability bans are considered unconstitutional, as they go against the right to privacy and the Fourteenth Amendment, which states that "the unborn have never been recognised [...] as persons in the whole sense".

Reason bans

Reason bans prohibit abortion if it is sought for a particular reason, such as sex, race or genetic anomaly. There is no evidence that abortions are sought for these reasons, but several states have implemented these bans.

Texas Heartbeat Act

The Texas Heartbeat Act, passed in May 2021, bans abortions as soon as cardiac activity can be detected, which is usually as early as six weeks into the pregnancy. This is often before women know they are pregnant, as the length of the menstrual cycle is typically four weeks. The Act allows any person to sue anyone who performs or induces an abortion, as well as anyone who aids or abets the performance of an abortion.

• Arkansas: prohibits all abortions except in cases of life endangerment
• Oklahoma: prohibits abortions except in cases of life endangerment or serious threats to the patient's physical health
• Montana: prohibits abortions after 20 weeks after the last menstrual period
• New Hampshire: prohibits abortions after 24 weeks
• Arizona: prohibits abortions in cases of genetic indication
• South Dakota: prohibits abortions if the foetus has Down syndrome
• Texas: prohibits abortions after six weeks

Telemedicine and abortion pills

In response, several nonprofits and startups, such as Aid Access, Choix, Just the Pill, and Hey Jane, began offering abortion pills by mail. Generally, eligible patients sign up with a photo ID and then consult with a medical provider via video call, text, or app. The provider then prescribes the pills, which are shipped to the patient. This has brought abortion care to many people at a critical time, especially in states that ban abortion or require a doctor to prescribe the medications in person.

In January 2023, the US Food and Drug Administration (FDA) made its decision to allow health care providers to mail patients abortion pills permanent. This decision, along with the Supreme Court ruling, led to a surge in interest in and demand for abortion pills. In 2023, medication abortions obtained within the formal health care system rose to 63% of all abortions, with the total percentage likely higher when accounting for self-managed abortions.

However, access to medication abortion is still a challenge. People living in states that ban abortion or require in-person prescriptions must travel across state lines or set up alternative mailing addresses to use these services. Additionally, there are legal concerns as some states are removing the "known pregnancy" requirements, which could make it easier to prosecute advance provision. Despite these challenges, the ability to access abortion care without leaving home has been a significant shift in the fight for abortion rights.

Criminal charges for pregnant people

Criminalization of abortion

Abortion was criminalized in the US in the late 1800s, and it remained illegal until the Roe v. Wade ruling in 1973. This ruling established a woman's constitutional right to privacy and, by extension, her right to abortion. However, this decision has been highly contested and was recently overturned in June 2022, leaving abortion laws to be determined by individual states.

Current landscape of abortion laws

As of 2024, abortion is illegal in 13 states, and it is protected by state law in 21 states and Washington, D.C. The remaining states fall into "Not Protected," "Hostile," or "Illegal" categories, indicating varying levels of restriction and protection.

The consequences of abortion laws vary for pregnant people depending on the state they reside in. In states where abortion is illegal, such as Alabama, performing an abortion is considered a Class A felony, punishable by imprisonment of 10 years to life. In states with less restrictive laws, such as Ohio, performing or attempting to perform an abortion is punishable by imprisonment of up to 5 years.

Self-managed abortion

The criminalization of self-managed abortion (SMA) further complicates the legal landscape. SMA refers to ending a pregnancy outside of a healthcare setting. Some states criminalize people who self-manage their abortions, exposing them to potential legal repercussions.

Impact of abortion laws

The impact of abortion laws extends beyond criminal charges. Restrictive abortion laws can have distressing effects on pregnant people, including increased travel distances to access care, financial burdens, and stigmatization. Additionally, these laws can disproportionately affect marginalized communities, such as Black and Brown individuals, low-income individuals, LGBTQ+ individuals, and young people.

Future outlook

The future of abortion rights in the US remains uncertain. While some states have expanded access to abortion and proactively protected these rights, others have introduced and enacted restrictive laws and bans. The Supreme Court's decision to overturn Roe v. Wade has shifted the power to individual states, leading to a fragmented landscape of abortion laws and an ongoing battle over reproductive rights.

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