Abortion Law: Who Makes The Decision?

Abortion laws vary widely between countries and territories and have changed over time. In 1973, abortion was made legal across the US after a landmark ruling in the case of Roe v Wade. In this case, the US Supreme Court ruled that governments lacked the power to prohibit abortions and that a woman's right to terminate her pregnancy was protected by the US constitution. However, in June 2022, the Supreme Court overturned this ruling, allowing individual states to ban the procedure. This has resulted in abortion access being all but obliterated in 14 states. The impact of this decision will be felt for years, if not decades, and it is unlikely that new federal legislation will be able to restore abortion access to pre-2022 levels.

Roe v Wade

Roe v. Wade was a landmark decision of the U.S. Supreme Court in which the Court ruled that the Constitution of the United States generally protected a right to have an abortion. The case was brought by Norma McCorvey, under the legal pseudonym "Jane Roe", who, in 1969, became pregnant with her third child. McCorvey wanted an abortion but lived in Texas, where abortion was illegal except when necessary to save the mother's life. Her lawyers filed a lawsuit on her behalf in U.S. federal court against her local district attorney, Henry Wade, alleging that Texas's abortion laws were unconstitutional.

The Supreme Court issued a 7–2 decision in McCorvey's favour, holding that the Due Process Clause of the Fourteenth Amendment to the United States Constitution provides a fundamental "right to privacy", which protects a pregnant woman's liberty to choose whether to have an abortion. The Court also held that the right to abortion is not absolute and must be balanced against the government's interests in protecting women's health and prenatal life.

The Court's decision in Roe was among the most controversial in U.S. history. In June 2022, the Supreme Court overruled Roe and Casey in Dobbs v. Jackson Women's Health Organization on the grounds that the substantive right to abortion was not "deeply rooted in this Nation's history or tradition".

Dobbs v Jackson Women's Health Organization

Dobbs v. Jackson Women's Health Organization was a landmark decision by the United States Supreme Court in 2022 that addressed whether the Constitution protects the right to an abortion. The case reviewed the constitutionality of Mississippi's Gestational Age Act, which banned most abortions after 15 weeks of pregnancy with exceptions for medical emergencies and fetal abnormalities.

The Supreme Court, in a 6-3 decision, upheld the Mississippi law and overturned Roe v. Wade (1973) and Planned Parenthood v. Casey (1992). The Court concluded that the Constitution does not protect the right to an abortion and returned the issue of abortion regulation to state governments.

The majority opinion, written by Justice Samuel Alito, held that the Constitution makes no reference to abortion and that no such right is implicitly protected by any constitutional provision, including the Due Process Clause of the Fourteenth Amendment. Alito argued that the right to abortion was not "deeply rooted in this Nation's history and tradition" and that it was not implicit in the concept of ordered liberty. He also criticised the Roe and Casey decisions for their damaging consequences and their failure to achieve a national settlement on the abortion issue.

The dissenting opinion, written by Justice Stephen Breyer, with Justices Elena Kagan and Sonia Sotomayor joining, criticised the Court for unsettling nearly five decades of precedent and undermining the Constitution's promise of freedom and equality for women. The dissent argued that Roe and Casey had protected the liberty and equality of women and that the Court's decision curtailed women's rights and their status as free and equal citizens.

The Dobbs decision has had significant ramifications for abortion access in the United States, with abortion services being severely restricted or prohibited in many states. It has also led to a push to expand the rights of the fetus and a rise in pregnancy-related prosecutions. The decision has sparked a political debate, with abortion rights becoming a defining issue in the 2024 presidential election.

The trimester system

In the United States, the trimester system was established by the Supreme Court rulings in Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), which protected a pregnant woman's right to get an abortion and ensured that states could not ban abortion prior to the point of fetal viability. However, these rulings were overturned by Dobbs v. Jackson Women's Health Organization (2022), and states now have more freedom to impose regulations on abortion.

• First trimester: Up to 12 weeks or 3 months. In the US, the majority of abortions occur before the 13th week. Some countries allow abortion on request during this period, while others have restrictions such as parental consent or notification laws.
• Second trimester: 13 to 27 weeks. Abortions during this period are often permitted in cases of rape, incest, fetal abnormalities, or to protect the physical or mental health of the pregnant individual.
• Third trimester: 28 to 40 weeks. Abortions during this period are highly restricted and generally only allowed to save the life of the pregnant individual or in cases of severe fetal abnormalities.

The exact definitions and regulations of the trimester system vary by country and state. For example, in the UK, the Abortion Act of 1967 allowed abortions up to 28 weeks, which was later reduced to 24 weeks. In the US, different states have different laws, with some banning abortion entirely while others allow it up to a certain point, such as fetal viability or 24 weeks.

State abortion laws

In the United States, abortion laws vary from state to state. In June 2022, the Supreme Court overturned Roe v. Wade, which had protected the federal constitutional right to abortion since 1973. This decision gave states the power to restrict or prohibit abortion entirely.

Currently, abortion is illegal in 13 states, with only limited exceptions. These states are: Alabama, Arkansas, Florida, Georgia, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Missouri, North Carolina, Oklahoma, and Texas.

A further 28 states have abortion bans based on gestational duration. Eight states ban abortion at or before 18 weeks' gestation, and 20 states ban abortion at some point after 18 weeks.

On the other hand, nine states and the District of Columbia do not restrict abortion on the basis of gestational duration. These jurisdictions are: Alaska, California, Colorado, Connecticut, Delaware, Hawaii, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Utah, Vermont, Virginia, Washington, Wisconsin, and Wyoming.

The legal status of abortion in the remaining states is unclear or currently being challenged in court.

International abortion laws

Abortion laws vary widely across the world, with some countries freely allowing abortion on request, while others impose regulations, restrictions, or outright prohibition. As of 2024, about 60% of the world's population lives in countries that legally allow abortion on request or for socioeconomic reasons.

In some countries, abortion is banned altogether, with no exceptions. About 24 countries fall into this category, including El Salvador, Nicaragua, Poland, the Dominican Republic, Egypt, Haiti, Iraq, Madagascar, the Philippines, Senegal, and Suriname. These countries prohibit abortion under all circumstances, and violations can result in severe penalties, including lengthy prison sentences.

A larger group of countries, approximately 42, allow abortions only to save the pregnant person's life. This includes Chile, Bahrain, Guatemala, Libya, Nigeria, Oman, South Sudan, and Uganda.

Nearly 50 countries or territories permit abortion for health or therapeutic reasons, including physical and/or mental health. Among these countries are Algeria, Bolivia, Cameroon, Costa Rica, Kuwait, Morocco, Pakistan, Peru, and Saudi Arabia.

A smaller group of countries, around 13, allow abortion under a broad range of circumstances, including social or economic grounds. Some of these countries also provide exceptions for rape, incest, fetal impairment, or other grounds. Ethiopia, Finland, India, Rwanda, Taiwan, and Zambia fall into this category.

At least 75 countries allow abortion on request, often with varying gestational limits. The most common limit is 12 weeks, but many countries, particularly in Europe, offer legal protections beyond this limit. Colombia, Argentina, South Korea, New Zealand, and Ireland have all recently liberalized their abortion laws, joining this group.

Trends and Impact

The past five decades have seen a global trend toward the liberalization of abortion laws, particularly in industrialized nations. While the legal status of abortion varies by region, a large majority of countries permit abortion under certain circumstances. Access to safe abortion has been established as a human right by various international frameworks and courts, including the UN Human Rights Committee and regional human rights courts.

The quality and safety of abortion care have improved with the expansion of reproductive health services, and maternal survival rates have increased. However, a stark difference exists between countries with generally legal abortion and those with high restrictions. Almost 90% of abortions in countries with liberal abortion laws are considered safe, compared to just 25% in countries where abortion is banned.

According to the World Health Organization (WHO), approximately 5-13% of maternal deaths worldwide are due to complications from unsafe abortions, predominantly in developing countries. Additionally, the rate of abortions has declined in countries with fewer restrictions and increased in those with severe restrictions.

Opposition and Rollbacks

Despite the global trend toward liberalization, strong opposition to abortion remains, particularly in autocracies. In recent years, a few countries have pushed back against the expansion of reproductive rights. The US, El Salvador, Nicaragua, and Poland have rolled back abortion rights since 1994, joining a small group of nations that have done so.

The criminalization of abortion creates barriers for those seeking reproductive healthcare, particularly those from marginalized communities. It leads to unsafe abortions, which can result in fatal consequences and disabilities. Additionally, social stigma, religious influences, and economic factors further hinder access to safe abortion services.

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