Who Decides Abortion Laws? Lawmakers Or Citizens?

Abortion laws are written by politicians and legislators, and vary widely from country to country, and even from state to state. In the United States, abortion is a highly divisive issue in politics, with the Republican Party generally seeking to restrict abortion access and the Democratic Party generally defending access to abortion. In 2022, the Supreme Court overturned Roe v. Wade, which had previously protected abortion rights, and allowed individual states to regulate abortion. This has resulted in a patchwork of laws across the country, with some states criminalising abortion and others strengthening protections.

The history of abortion laws in the US

Early History

Abortion has been a common practice in the US since its early history, and it was not always a controversial issue. During the American Revolution and the first century of US independence, abortion was not banned in any state. The traditional Protestant Christian belief held that personhood began at "quickening", which is when a pregnant woman starts to feel the fetus's movement, usually between 18 and 21 weeks. As a result, abortion was legal before quickening in every state under the common law.

Connecticut's Abortion Law (1821)

Connecticut became the first state to regulate abortion in 1821. The law outlawed abortion after quickening and forbade the use of poisons to induce abortion. This marked the beginning of legal restrictions on abortion in the US.

19th Century Developments

In the 19th century, abortion began to be seen as a controversial issue, with doctors seeking to drive out traditional healers and quacks leading the way in campaigning against it. By 1880, all states had passed laws banning abortions except for therapeutic reasons, which were left to the medical practice and legal system to determine. However, in practice, this meant that wealthier women with better access to doctors were able to obtain abortions, while others resorted to unsafe methods.

20th Century Developments

The early 20th century saw continued efforts to restrict abortion, with all states making abortion a felony by 1900. However, some states included provisions allowing abortion in limited circumstances, such as to protect the woman's health or in cases of rape or incest. Despite these restrictions, abortions continued to occur, and public opinion began to shift towards supporting abortion rights.

Roe v. Wade (1973)

The landmark Supreme Court case Roe v. Wade in 1973 decriminalized abortion nationwide and established a federally mandated uniform framework for state legislation on abortion. The Court ruled that a woman's right to privacy includes the abortion decision and that abortion is a fundamental right. This ruling struck down the abortion laws of all 50 states and had a significant impact on the legal status of abortion in the US.

Planned Parenthood v. Casey (1992)

In 1992, the Supreme Court case Planned Parenthood v. Casey modified the Roe v. Wade decision by abandoning the strict trimester framework but maintained that women have a right to choose to have an abortion before viability. This case reaffirmed the central holding of Roe v. Wade and further shaped the legal landscape of abortion in the US.

Dobbs v. Jackson Women's Health Organization (2022)

In 2022, the Supreme Court overturned Roe v. Wade and Planned Parenthood v. Casey in the Dobbs v. Jackson Women's Health Organization case. This ruling ended the protection of abortion rights by the US Constitution and allowed individual states to regulate abortion as they see fit. This decision has led to a highly polarized debate over abortion rights in the US, with some states enacting strict abortion restrictions while others are protecting abortion rights in their state constitutions.

The current status of abortion laws in the US

As of October 2024, 13 states have a total abortion ban, 28 states have abortion bans based on gestational duration, and 9 states and the District of Columbia do not restrict abortion on the basis of gestational duration.

The abortion-rights movement advocates for patient choice and bodily autonomy, while the anti-abortion movement maintains that the fetus has a right to live. A majority of Americans support access to abortion, and the abortion rate has been continuously declining since 1980, reaching 11.3 by 2018.

The legality of abortion in the US is frequently a major issue in nomination battles for the Supreme Court. Nominees typically remain silent on the issue during their hearings.

The impact of the Supreme Court on abortion laws

The Supreme Court's decision to overturn Roe v. Wade in 2022 has had a significant impact on abortion laws in the United States. The ruling removed the nationwide protection for abortion rights, allowing individual states to regulate any aspect of abortion not preempted by federal law. This has resulted in a patchwork of varying abortion laws across the country, with some states criminalizing abortion while others have strengthened protections.

Prior to the Roe v. Wade decision, abortion laws in the United States varied widely from state to state. Some states allowed abortion only to save the life of the mother, while others had more liberal laws. The Roe v. Wade ruling established a minimal period during which abortion was legal and set guidelines for state legislation on the subject. It also recognized a right to privacy for women seeking an abortion, which was protected under the Due Process Clause of the 14th Amendment.

However, the Supreme Court's decision in Dobbs v. Jackson Women's Health Organization effectively overturned Roe v. Wade and Planned Parenthood v. Casey, ending the protection of abortion rights at the federal level. This ruling has had a significant impact on abortion access and women's reproductive rights. It has also sparked a wave of legal challenges and political debates across the country.

The impact of the Supreme Court's ruling is felt most keenly by women seeking abortions, particularly those in states with restrictive abortion laws. In some states, abortion is now prohibited altogether, while in others, it is only allowed under specific circumstances, such as to save the life of the mother or in cases of rape or incest. This has led to an increase in women traveling out of state to access abortion services, as well as a rise in self-managed abortions obtained through online pharmacies or overseas sources.

The Supreme Court's ruling has also had a significant impact on the political landscape, with abortion becoming a key issue in the 2024 elections. Both the Democratic and Republican parties have taken opposing stances on abortion, with the Democrats generally defending access to abortion and the Republicans seeking to restrict it. The impact of the Supreme Court's ruling will likely be felt for years to come, as states continue to grapple with the issue of abortion rights and women's reproductive freedom.

The role of state governments in abortion laws

In the United States, abortion laws vary widely from state to state. While abortion is illegal in 13 states, abortion is protected by state law in 21 states and the District of Columbia. The remaining states are categorized as "Not Protected", meaning abortion may continue to be accessible but is not protected by state law.

State constitutions in Alabama, Louisiana, Tennessee, and West Virginia explicitly contain no right to an abortion. On the other hand, 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. Other states, such as Colorado and Massachusetts, protect abortion under state law.

In 2022, the U.S. Supreme Court overturned Roe v. Wade, which had previously decriminalized abortion nationwide in 1973. This ruling ended the federal constitutional right to abortion and allowed individual states to regulate any aspect of abortion not preempted by federal law. Since then, some states have criminalized abortion, while others have strengthened protections.

State legislatures have introduced reproductive rights-related bills that undermine the doctrines of US democracy, including voter participation and the separation of powers. For example, some states have introduced bills that would make it harder for citizens to initiate a ballot measure or disregard the outcome of a previously decided ballot measure. Other states have introduced bills that would shift power from the judicial branch to the legislative branch.

The future of abortion laws in the US

States with abortion bans and restrictions

Thirteen states have made abortion illegal, with varying exceptions. These include Alabama, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Mississippi, Oklahoma, South Carolina, Texas, and Tennessee.

Other states have also passed laws restricting abortion access. For example, Missouri only permits the procedure in medical emergencies, while Arizona and Nebraska ban abortion after 15 and 12 weeks of pregnancy, respectively.

States with protected abortion rights

On the other hand, some states have enshrined abortion rights into their constitutions or passed laws protecting these rights. These include Alaska, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Kansas, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington, and Wyoming.

Future of abortion laws

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