Who Really Controls Abortion Laws?

Abortion laws are a highly divisive issue in the United States, with the power to control them falling to individual states following the Supreme Court's overturning of Roe v. Wade in 2022. This ruling removed nationwide protection for abortion rights, allowing states to ban the procedure outright. Currently, abortion is illegal in 13 states, with varying penalties for those who perform or receive abortions. However, some states have strengthened protections for abortion rights, and several have introduced ballot measures to guarantee these rights. The issue of abortion laws has also become a key topic in the 2024 U.S. presidential election, with Democratic candidate Kamala Harris advocating for federal abortion protections, while Republican rival Donald Trump supports state-level control.

The role of the Supreme Court

The Supreme Court of the United States has played a pivotal role in shaping abortion laws in the country. In the landmark 1973 case of Roe v. Wade, the Court established a precedent by ruling that abortion was protected by the Constitution under the right to privacy. This decision effectively decriminalized abortion nationwide and set guidelines for state legislation on the matter. The Court asserted that a woman's right to privacy in seeking an abortion must be balanced against the state's interest in protecting fetal life. The ruling also established a trimester framework, prohibiting states from banning abortion during the first trimester but allowing for increasing restrictions in the second and third trimesters.

However, the Supreme Court's stance on abortion has evolved over time. In the 1992 case of Planned Parenthood v. Casey, the Court modified the trimester framework while upholding the central holding of Roe, recognizing a woman's right to choose to have an abortion before viability. The Court adopted the "undue burden" standard for evaluating state abortion restrictions, emphasizing the right to abortion as grounded in liberty and privacy protections under the Constitution.

In recent years, the Supreme Court has further shifted its position on abortion. In 2007, the Court upheld a federal ban on partial-birth abortion, marking the first time it allowed a prohibition on a specific abortion procedure since Roe. This signaled a substantial change in the Court's approach to abortion law. Subsequently, in 2022, the Court overturned Roe and Casey in the Dobbs v. Jackson Women's Health Organization case, ruling that abortion was not protected by the Constitution and returning the matter to the states to regulate. This decision effectively removed nationwide protections for abortion rights and allowed states to implement their own abortion laws.

The Supreme Court's rulings have had a significant impact on abortion access and reproductive rights across the country. The overturning of Roe and Casey in 2022 led to a wave of state-level abortion bans and restrictions, with at least a dozen states enacting near-total bans. These new state laws have faced legal challenges, with some being blocked or temporarily halted. The Court's decisions have also influenced political debates, with the issue of abortion becoming a key topic in the 2024 U.S. presidential election.

State-level abortion laws

Following the Supreme Court's overturning of Roe v. Wade in June 2022, abortion policies and reproductive rights are now in the hands of each state. Currently, abortion is illegal in 13 states, with varying penalties for performing abortions. In Alabama, for example, performing an abortion is a Class A felony with up to 99 years in prison.

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

Some states have a right to abortion in their state constitutions, either explicitly or as interpreted by the state supreme court. These include Alaska, California, Illinois, Kansas, Michigan, Minnesota, North Dakota, Ohio, and Vermont. Other states, such as Colorado and Massachusetts, protect abortion under state law.

The abortion debate has also extended to the question of who pays the medical costs of the procedure, with some states using the mechanism as a way of reducing the number of abortions. Six states require coverage in all private plans: California, Illinois, Maine, New York, Oregon, and Washington.

The issue of minors and abortion is also regulated at the state level, and 37 states require some form of parental involvement, either in the form of parental consent or notification.

History of abortion laws in the US

Abortion was not an issue of significant controversy in the US from the American Revolution to the mid-19th century, as most people held the traditional Protestant Christian belief that personhood began at quickening (between 18 and 21 weeks). It was legal prior to quickening in every state under common law. However, in 1821, Connecticut became the first state to regulate abortion, outlawing it after quickening. Many states subsequently passed various laws on abortion until the Supreme Court decisions of Roe v. Wade and Doe v. Bolton decriminalized abortion nationwide in 1973. The Roe decision imposed a federally mandated uniform framework for state legislation on the subject and established a minimal period during which abortion is legal, with more or fewer restrictions throughout the pregnancy.

In 2022, Roe and Casey were overturned in Dobbs v. Jackson Women's Health Organization, ending protection of abortion rights by the US Constitution and allowing individual states to regulate any aspect of abortion not preempted by federal law.

Global context

The US is a stark outlier to the global trend toward liberalization of abortion laws. Over the past 30 years, more than 60 countries and territories have liberalized their abortion laws, with only four countries rolling back the legality of abortion.

The impact of federal funding

The Hyde Amendment and Medicaid Funding

The Hyde Amendment, first passed in 1976, is a legislative provision that bars the use of federal funds to pay for abortions, except in specific cases such as life endangerment, rape, or incest. This amendment has been a significant victory for the anti-abortion movement, and it has had a profound impact on abortion access, particularly for low-income women, women of colour, younger women, and immigrants. The amendment restricts abortion coverage for recipients of federally funded healthcare, including women enrolled in Medicare and Medicaid, Native American women, US servicewomen, and women in specific detention facilities.

Impact on Abortion Rates and Affordability

The Hyde Amendment has led to a significant decrease in the number of abortions performed using federal funds. Before the amendment, an estimated 300,000 abortions were carried out annually with federal funds. In recent years, it has been estimated that 18 to 33 percent of Medicaid-eligible women who desire abortions have given birth because they live in states that do not provide funding. The amendment has also contributed to disparities in abortion access across states. As of 2021, 16 states use their own state funds to pay for elective abortions and similar services, exceeding federal requirements.

State Responses to the Hyde Amendment

The impact of the Hyde Amendment has prompted some states to take action to ensure abortion access for their residents. As of August 31, 2023, 17 states have policies to use their own Medicaid funds to pay for medically necessary abortions, going beyond the requirements of the Hyde Amendment. Additionally, eight of these states provide such funding voluntarily, while nine do so as a result of court orders.

Political Responses and Proposed Legislation

The issue of federal funding for abortion has been a topic of debate in recent years, with attempts to modify or repeal the Hyde Amendment. In 2016, Hillary Clinton advocated for a repeal of the amendment during her presidential campaign, marking a significant shift in the Democratic Party's platform. More recently, in 2020, Joe Biden reversed his previous support for the amendment and pledged to work towards overturning it if elected. However, the amendment continues to be a point of contention, with Republicans and Democrats disagreeing on its inclusion in various pieces of legislation.

International Impact

In conclusion, the impact of federal funding has had a significant influence on abortion laws, access, and affordability in the United States. The Hyde Amendment has restricted abortion coverage for certain groups, leading to disparities across states and impacting abortion rates. While some states have taken action to expand abortion access, the issue remains a point of political debate and has also had international implications.

The criminalisation of abortion

In the United States, abortion laws vary from state to state, with 13 states currently criminalising abortion. The criminalisation of abortion in the US is a recent development, with Roe v. Wade decriminalising abortion nationwide in 1973. However, in June 2022, the Supreme Court overturned Roe v. Wade, allowing individual states to regulate abortion. This has resulted in a patchwork of abortion laws across the country, with some states criminalising abortion entirely and enforcing harsh penalties for those who seek or provide abortions.

The impact of criminalising abortion cannot be overstated, as it puts people's lives and health at risk. It also reinforces social stigma and intersectional discrimination, creating barriers for people seeking abortions. Ultimately, the criminalisation of abortion is a complex and controversial issue that continues to be fiercely debated around the world.

The right to bodily autonomy

The concept of bodily autonomy is deeply rooted in the belief that individuals should have control over their fertility and reproductive choices. It highlights the importance of self-determination and the right to make informed decisions about one's health and future. For those who can become pregnant, this includes the decision to continue or terminate a pregnancy.

In the context of abortion, bodily autonomy means recognising that pregnant people have the right to choose what happens to their bodies during pregnancy. This encompasses not only the decision to have an abortion but also the ability to access safe and legal abortion services. Restrictive abortion laws, such as those imposed in some US states, directly infringe upon this right by limiting access to abortion and imposing criminal penalties on those who seek or provide abortions.

The denial of bodily autonomy can have devastating consequences, particularly for those from marginalised communities. It can lead to unsafe abortions, which are estimated to cause approximately 25 million unsafe abortions worldwide each year, resulting in maternal deaths and disabilities. Additionally, the criminalisation of abortion creates further barriers for individuals seeking reproductive healthcare, especially those from low-income backgrounds, refugees, migrants, and racialised and Indigenous communities.

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