Who Holds The Power To Legislate Abortion?

Abortion laws vary widely from country to country and even from state to state. In some countries, abortion is legal and women have the right to make the choice about abortion. In some areas, abortion is legal only in specific cases such as rape, incest, fetal defects, poverty, and risk to a woman's health.

In the United States, abortion laws are decided at the state level, and there is no federal legislation protecting or penalizing abortion. The Supreme Court of the United States 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. It also established a minimal period during which abortion is legal, with more or fewer restrictions throughout the pregnancy.

Since 1976, the Republican Party has generally sought to restrict abortion access based on the stage of pregnancy or to criminalize abortion, whereas the Democratic Party has generally defended access to abortion and has made contraception easier to obtain.

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

The history of abortion laws in the US

Abortion laws in the US have been through a series of changes since the country's formation. Initially, abortion was not a significant issue of controversy, and it was legal before "quickening", which is when a pregnant person first feels the foetus move, usually around four to five months into a pregnancy. This changed in the early 19th century when Britain, which the US took its lead from, began to outlaw abortion.

In the US, the American Medical Association (AMA), formed in 1847, began campaigning to end abortion, and by 1880, abortion was outlawed in most states. This was part of a backlash against the growing women's rights movement, which advocated for "voluntary motherhood". The AMA was male-dominated, and its members believed they should decide when abortions could be legally performed. They also lacked expertise in pregnancy and reproductive health.

The criminalization of abortion led to a "century of criminalization", which was only ended by Roe v. Wade in 1973. This period saw abortion become stigmatized, and unsafe, illegal abortions led to a high death toll. By 1910, abortion was illegal in every state and at every stage of pregnancy.

However, there were still providers who performed abortions, and those who could afford it could sometimes find a physician. By the mid-20th century, some women travelled abroad to obtain an abortion. Those without the financial means, especially women of colour, suffered disproportionately and often had to resort to dangerous self-abortions.

In the 1950s, in response to increasing media coverage of unsafe, illegal abortions, Planned Parenthood held a conference on abortion, with attendees publicly calling for abortion law reform. This was the start of a nationwide effort to reform abortion laws, with health care providers, advocates, clergy members, and the legal community lobbying state legislatures.

By the late 1960s, four states (Alaska, Hawaii, New York, and Washington) had repealed their abortion bans, and 13 others had expanded exceptions. In 1970, New York state legalized abortion, and a Planned Parenthood health centre there became the first to provide abortion services.

In 1973, Roe v. Wade ruled that people had a fundamental "right of privacy... founded in the Fourteenth Amendment's concept of personal liberty". This meant that abortion was legal in all 50 states, and abortion services became safer and more accessible.

However, abortion remained a divisive issue, and in 2022, Roe v. Wade was overturned by Dobbs v. Jackson Women's Health Organization, ending the protection of abortion rights by the US Constitution and allowing individual states to regulate abortion.

The legal status of abortion in the US

Where abortion is banned

Abortion is banned in almost all circumstances in the following states:

• Alabama
• Georgia
• Indiana
• Kentucky
• Louisiana
• Mississippi
• Missouri
• Oklahoma
• South Carolina
• Tennessee
• Texas
• West Virginia

Where abortion is restricted

Abortion is restricted to varying degrees in the following states:

• Arizona
• Arkansas
• Florida
• Idaho
• Iowa
• Nebraska
• North Carolina
• Utah
• Wisconsin

Where abortion is legal

Abortion is broadly legal in the rest of the country. Abortion is protected by state law in the following states:

• California
• Colorado
• Connecticut
• Delaware
• Hawaii
• Illinois
• Maine
• Maryland
• Massachusetts
• Michigan
• Minnesota
• Nevada
• New Jersey
• New Mexico
• New York
• North Dakota
• Oregon
• Pennsylvania
• Rhode Island
• Vermont
• Virginia
• Washington
• Wyoming

Abortion is also legal in the District of Columbia and the state of Alaska.

Where abortion is enshrined in the state constitution

Abortion rights are enshrined in the state constitution in the following states:

• California
• Michigan
• Minnesota
• Vermont

Where abortion is protected by state supreme court ruling

Abortion is protected by state supreme court rulings in the following states:

• Illinois
• Kansas
• Montana
• New Jersey

Where abortion is likely to change

Several states are set to vote on abortion-related initiatives in the 2024 elections, including Arizona, Colorado, Florida, Maryland, Missouri, Montana, Nebraska, Nevada, New York, and South Dakota.

The impact of abortion laws on women's health

Abortion laws have a significant impact on women's health, and this impact is felt most acutely in low- and middle-income countries (LMICs). Restrictive abortion laws contribute to a range of barriers that prevent people from seeking safe abortions, including criminalisation, social stigma, and intersectional discrimination and marginalisation. As a result, many are forced to resort to unsafe abortions, which carry serious health risks and can lead to fatal consequences such as maternal deaths and disabilities.

Unsafe abortions are a major global public health challenge and are considered an important preventable cause of maternal deaths and morbidities. The World Health Organization (WHO) estimates that nearly 8% of maternal deaths worldwide are attributed to unsafe abortions, with the majority occurring in developing countries. Complications from unsafe abortions can include haemorrhage, infections, septic shock, uterine and intestinal perforation, and peritonitis. These can result in long-term health issues such as infertility and chronic reproductive tract infections.

Restrictive abortion laws also have economic impacts, with households and health systems incurring substantial costs due to the treatment of complications from unsafe abortions. In addition, unsafe abortions can affect children's health and well-being, with increased risks of poor birth outcomes, neonatal and infant mortality.

Progressive reforms to abortion laws are expected to improve women's access to safe abortions and reduce the negative health consequences associated with unsafe abortions. However, the impact of these reforms can vary depending on the specific legislative changes, the political, economic, religious, and social context of the country, and the effectiveness of implementation and enforcement.

Studies have shown that decriminalising and subsidising early-term elective abortions, as well as providing complementary reproductive and maternal health services, can lead to substantial reductions in maternal morbidity, particularly among vulnerable populations. Expanding the grounds on which abortions may be performed legally can also improve access to safe abortions and reduce the incidence of unsafe abortions.

On the other hand, restrictive abortion laws can lead to increased health risks for women, as they are often forced to continue with unwanted pregnancies or seek unsafe abortions. This can result in higher rates of maternal mortality and pregnancy-related complications. Restrictive laws can also exacerbate existing disparities in access to quality reproductive health care, particularly for vulnerable groups such as low-income women, refugees, migrants, LGBTIQ+ individuals, and racialised and Indigenous people.

The role of state constitutions in abortion rights

State constitutions offer stronger and expanded legal grounds for protecting abortion rights. For example, as of 2024, Alaska, California, Illinois, Kansas, Michigan, Minnesota, North Dakota, Ohio and Vermont have a right to abortion in their state constitutions, either explicitly or as interpreted by the state supreme court.

State courts have interpreted their constitutional history and traditions more expansively than federal jurists, who have employed a narrow, backward-looking analysis to reject rights such as intimacy, same-sex marriage, and abortion. Some state courts have focused on how autonomy—the right to control one's own body without influence or coercion—protects personal rights, including abortion.

State courts have also relied on rights to privacy in their state constitutions to recognize the strongest protections for abortion. The U.S. Constitution does not include a textual right to privacy, but state courts have used privacy rights to recognize the strongest protections for abortion.

In addition, high courts in several states have struck down laws that treat people seeking abortion differently from those who choose to continue pregnancies, and in one state, treated an abortion restriction as a form of sex discrimination, which federal courts have failed to do.

The future of abortion rights in the US

In June 2022, the Supreme Court's decision in Dobbs v. Jackson Women's Health Organization overturned Roe v. Wade and Planned Parenthood v. Casey, ending the constitutional protection of abortion rights and allowing states to regulate any aspect of abortion not preempted by federal law. This has resulted in a patchwork of abortion laws across the country, with some states banning abortion entirely, while others have taken steps to protect abortion rights.

State-level developments

As of 2024, several states, including Alabama, Florida, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Mississippi, Missouri, Oklahoma, South Carolina, South Dakota, Texas, and West Virginia, have enacted near-total bans on abortion, with limited exceptions, such as to protect the life of the pregnant person. Other states, such as Arizona, Arkansas, and Tennessee, have also imposed restrictions on abortion access, such as gestational limits. These laws have faced legal challenges, with some being blocked or overturned by state courts.

In contrast, some states have taken steps to protect abortion rights. States like Alaska, California, Colorado, Connecticut, Illinois, Kansas, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, Vermont, Virginia, Washington, and Wyoming, have laws or constitutional provisions protecting the right to abortion, with varying gestational limits. Additionally, several states, including Arizona, California, Colorado, Michigan, Minnesota, and Vermont, have recently passed legislation or ballot measures to protect abortion access or enshrine abortion rights in their state constitutions.

Federal-level developments

At the federal level, there have been efforts to restrict abortion access, such as the Partial-Birth Abortion Ban Act of 2003 and the Mexico City policy, which prohibits financial support to overseas organizations that perform or promote abortions. However, there have also been moves to protect abortion rights, such as the Biden administration's reversal of the Mexico City policy and the Department of Justice's assertion that states cannot restrict access to FDA-approved abortion pills.

Public opinion and activism

Public opinion on abortion remains divided, with a significant portion of Americans supporting abortion rights, while others oppose it. This division is reflected in the activism and advocacy efforts on both sides of the issue, with groups like Amnesty International and Planned Parenthood advocating for abortion rights, while anti-abortion groups, such as the National Right to Life Committee, push for restrictions.

Impact and implications

The impact of these legislative and judicial changes is already being felt, with reports of women being denied abortions or facing significant barriers in accessing abortion services. The restrictions have particularly affected marginalized communities, including low-income individuals, refugees, migrants, and racialized and Indigenous people, who face additional challenges in obtaining abortion care.

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