The US Supreme Court declared abortion was legal and that women had a constitutional right to the procedure with the landmark case Roe v. Wade in 1973.
But the reality of that right today varies considerably across the states.
Since then, antiabortion activists and lawmakers have found ways around Roe to make it as difficult as possible for women to get the procedure in most states.
Many legal scholars don’t think the Supreme Court would outright overturn Roe – even if President Donald Trump gets his second nominee, Brett Kavanaugh, on the bench. The more likely route is that abortion rights will slowly erode over time until only women in blue states (or rich women who can travel there) can get them.
Here’s a look at some of the major state laws that are restricting access to abortion across the country:
Targeted Restrictions on Abortion Providers (TRAP) Laws
Targeted Restrictions on Abortion Providers – or TRAP – laws impose strict requirements on abortion clinics and providers. The standards are frequently so specific that clinics often can’t afford the changes, and end up closing down altogether.
Nine states specify the size of the procedure rooms, seven specify the width of the clinic corridors, and eight require physicians to have admission privileges at a nearby hospital in case complications arise – even though less than 0.5% of abortions result in complications that require a hospital visit.
An Alabama law mandated that abortion clinics cannot be within 2,000 yards from a school before a judge struck it down.
The most famous law, Texas’s HB2, went all the way to the Supreme Court in Whole Woman’s Health v. Hellerstedt. In June 2016, the high court struck it down in a 5-3 decision.
The justices concluded that the law “provides few, if any, health benefits for women, poses a substantial obstacle to women seeking abortions, and constitutes an ‘undue burden’ on their constitutional right to do so.”
Though SCOTUS deemed Texas’s TRAP law unconstitutional, 23 states still have laws on the books that “regulate abortion providers and go beyond what is necessary to ensure patients’ safety,” according to the Guttmacher Institute, a leading research and policy organisation on reproductive health.
Specific week bans
One of the most common ways to restrict abortions is to set limits on when women can get them. Specific week bans, the most popular of which is the 20-week ban, only allow abortions before 20 weeks into the pregnancy, for example.
In Roe v. Wade, the Supreme Court didn’t specify when abortions were legal, deciding at the time to vaguely make it unconstitutional to outlaw them up until the foetus was “viable,” since the science hadn’t (and still hasn’t) determined at the time when that was, medically speaking.
States have seized on this ambiguity and passed specific week bans. A whopping 43 states have passed some type of gestational limit, usually only allowing exceptions to if the mother’s life is in danger.
According to 2014 data, 89% of elective abortions occur in the first trimester of pregnancy. The vast majority of the 10% that occur after are for medical reasons.
Fetal heartbeat limits
In December 2016, the Ohio legislature passed a bill that would ban abortion after the foetus’ heartbeat can be detected.
Gov. John Kasich vetoed the so-called heartbeat bill, saying it was “clearly contrary to the Supreme Court of the United States’ current rulings on abortion,” and that signing it into law would ensure the “State of Ohio will be forced to pay hundreds of thousands of taxpayer dollars” in a losing lawsuit. (He also signed a 20-week ban into law that same day).
Doctors can detect a foetus’ heartbeat as early as six weeks into pregnancy. Women usually don’t find out they’re pregnant until four to seven weeks in – meaning the bill could have left many women unable to get a safe, legal abortion in the state because they wouldn’t have known they were pregnant.
Several other states have passed or tried to pass fetal heartbeat laws, but governors have vetoed them, the bills have died in committee, or courts have struck them down. No state currently has such a law on the books.
In March of 2016, Utah passed a law requiring patients undergoing an abortion after 20 weeks of pregnancy to be put under anesthesia or given pain killers, based off the medically unsubstantiated claim that fetuses are able to feel physical pain.
A 2005 study on the issue of fetal pain found that the nerve and perception systems are not developed enough for a foetus to feel pain until 29 or 30 weeks of pregnancy, a point at which practically zero abortions occur.
As of 2013, no subsequent research has challenged those findings.
Thirteen states currently require abortion providers to counsel women undergoing the procedure on the unproven fetal pain claim.
Personhood initatives seek to define unborn embryos and fetuses as people under the law, affording them all the same rights and thus effectively classifying abortion as murder.
While several states have introduced ballot referendums to extend personhood rights to fetuses, voters have rejected them or the courts have ruled them unconstitutional.
Other federal and state laws, however, make provisions to prosecute people who injure fetuses. Several states have laws that prosecute mothers who use illegal drugs while pregnant, and the federal Unborn Victims of Violence Act makes it illegal to harm a foetus while killing or injuring the mother in a federal crime.
Bans on “partial birth” abortion
Twenty states currently ban what is termed “partial-birth” abortion, in which the foetus or fetal tissue is removed from the uterus, following a 2007 Supreme Court case that allowed bans on such procedures.
But doctors say the phrase “partial-birth” is misleading and inaccurate. “One can’t be partially born. In obstetrics, you are pregnant or you aren’t, and you are delivered or you are not,” Dr. Jennifer Gunter, an OBGYN and abortion provider, explained in the Huffington Post in 2016.
What lawmakers call “partial-birth” abortions are medically defined as dilation and evacuation (D&E), a surgical procedure used in late-term miscarriages and abortions to remove the fetal tissue as safely as possible. They account for less than 0.5% of all abortions.
Trump falsely claimed during the campaign that an OB-GYN can “rip the baby out of the womb of the mother just prior to the birth of the baby,” an assertion that caught fire among abortion opponents.
Getting the father’s approval
Lawmakers in Oklahoma advanced a bill in 2017 that would require the father’s permission for a woman to get an abortion. Non-invasive paternity tests are only available after eight weeks into pregnancy.
The bill, however, didn’t make it far. In the 1976 case Planned Parenthood of Central Missouri v. Danforth, the US Supreme Court ruled that requiring the permission of the foetus’ father or the spouse of someone seeking an abortion is unconstitutional.
In an interview with The Intercept in February 2017, the bill’s author, state Rep. Justin Humphrey, said he wanted to make sure men were included in women’s decisions to have abortions.
“I understand that [women] feel like that is their body. I feel like it is a separate – what I call them is, is you’re a ‘host.’ And you know when you enter into a relationship you’re going to be that host and so, you know, if you pre-know that then take all precautions and don’t get pregnant,” he said.
Cutting public funding
Since 1976, the Hyde Amendment has prohibited federal Medicaid funding from subsidizing abortions except in rare exceptions of rape, incest, or when the life of the mother is in danger.
Several individual states have since followed suit, with 32 prohibiting the use of state funding for abortions of low-income women on government assistance.
In May 2018, Trump announced a domestic “gag rule” that would prohibit family planning clinics who receive federal Title X funding from providing information about abortion or referrals out to clinics who provide abortions.
Title X gives grants to clinics so that low-income and uninsured patients can access family planning services they wouldn’t otherwise be able to afford.
Bans on abortion coverage in private insurance plans
Ten states currently ban private insurance companies from offering plans that include abortion coverage to any resident.
An additional 15 states ban a combination of state and federal employees, those who receive coverage through Medicaid, and/or those who purchase health plans through the exchanges created by the Affordable Care Act from purchasing plans that include abortion coverage.
Some of these states do make exceptions for incest, rape, and danger to the pregnant person’s life, and/or allow the purchase of abortion coverage at an additional cost.
Requiring waiting periods
Twenty-seven states require people seeking an abortion to undergo a 24- to 72-hour waiting period between receiving abortion counseling and actually undergoing the procedure.
Fourteen of those states mandate patients make two trips to a facility by requiring the counseling take place in-person before the waiting period begins.
A 2013 study from the Texas Policy Evaluation Project found that a third of women reported that the required counseling and multiple clinic visits “negatively affected their emotional well-being.”
The women surveyed travelled an average of 42 miles to get to a clinic, and spent an average of $US146 to cover the additional transportation and childcare costs (59% of women who get abortions in the US are mothers already).
While advocates of these periods say they’re necessary for a patient to truly make an informed decision about terminating her pregnancy, research disputes that claim.
A separate study published in 2012 that surveyed 5,100 women who had to undergo a waiting period and multiple trips to a clinic concluded: “In nearly nine out of 10 cases, women expressed high confidence in their abortion decision before they received any counseling; these women would likely not benefit from additional mandated counseling or delay.”
Nineteen states require that for medication abortions – a safe and common method for first-trimester abortions – the doctor who prescribed the medication must be physically present while the patient takes it.
The FDA approved mifepristone for medication abortions in 2000. To terminate the pregnancy, the woman takes one pill, then another pill 24 to 48 hours later.
In states with this requirement, women have to have doctors watch them take both pills in person, adding an additional access barrier for those who live in rural areas.
Letting health care providers refuse
Forty-five states permit healthcare providers to refuse to provide abortion-related services, and forty-three allow individual healthcare institutions to deny them.
An additional 12 states let providers refuse to administer contraception, eight states let institutions refuse to provide contraception-related services, and six let pharmacy workers refuse to fill prescriptions related to contraception or abortion.
These laws can impose burdens on people seeking abortion-related services if their state allows anyone to deny them.
Some of these refusal laws came into the spotlight in June 2018, when a pharmacist in Arizona refused to fill a prescription for a drug to expel a foetus prescribed to a woman having an involuntary miscarriage. The pharmacist’s refusal to do so, based off his religious beliefs, is legal under Arizona law.
Thirty-five states require that patients receive medical counseling and be given certain information before undergoing an abortion procedure.
While most of these states provide largely accurate information about fetal development, gestational age, and potential risks, some require doctors to provide blatantly misleading or inaccurate information.
Thirteen states require doctors to inform patients of medically un-proven claims that fetuses can feel pain, six states mandate that patients be told personhood begins at conception, and three states provide false information that an abortion can be “reversed” with a pill during the procedure.
Four states provide misleading information on the link between abortion and later fertility, doctors in five states are required to tell patients the medically disproven claim that abortions increase the risk of breast cancer, and eight states exaggerate the connections between abortion and negative mental health symptoms.
Blocking physician assistants and advanced practice nurses from administering medication
Thirty-four states require that those who prescribe the drug mifepristone for non-surgical abortions preformed in the first trimester of pregnancy must be licensed physicians, despite the World Health Organisation’s guidelines that physician’s assistants and advanced practice nurses can safely administer the drug as well.
These restrictions on who can administer medication abortion limit the ability to access such drugs, and abortion overall.
Eleven US states require abortion providers to conduct ultrasounds on patients before undergoing an abortion, with nine of them mandating that patients be given the option to view the ultrasound image.
Three states – Louisiana, Texas, and Wisconsin – go as far to require that the provider show and describe the ultrasound image.
Numerous studies have shown that these requirements are largely ineffective, and don’t have much of an impact on patients considering abortion.
A researcher with the Texas Policy Evaluation Project, which conducted a 2013 study of 300 women who underwent the mandated ultrasounds and descriptions of the images, concluded that “women reported being equally confident about their decision after seeing the ultrasound and hearing its description.”
A 2014 study published in Obstetrics & Gynecology that surveyed over 15,000 women who underwent an abortion found that 98% of those who looked at an ultrasound went on to terminate their pregnancies.
Exempting sex selection or disability
Eight states ban abortions based on the sex of the foetus, Arizona bans abortion based on race, and three states require counseling for perinatal hospice services if the foetus has a fatal abnormality.
In 2017, Ohio Gov. John Kasich signed a bill to outlaw abortions of fetuses diagnosed with Down syndrome.
But a federal judge granted an injunction against the law after the ACLU and other groups challenged it in court, ruling that it was unconstitutional on the grounds of the Fourteenth Amendment. A court struck down a similar measure passed in Indiana.
North Dakota’s ban on abortions of fetuses diagnosed with Downs syndrome is effectively un-enforceable, since the state’s one abortion clinic does not perform abortions after 16 weeks, according to USA Today.
While sex-based abortions of female fetuses are more commonplace in countries such as China and India, there is not substantial evidence that it occurs on a widespread basis in the United States. The sex of a foetus is not clearly discernible until between 16 and 20 weeks of pregnancy, and 95% of abortions take place before the 16-week mark, according to 2014 data.
Parental consent or notification
Thirty-seven states require parental involvement in a minor’s decision to have an abortion, mandating some combination of parental notification, consent, or both 24 to 48 hours before the procedure. Several states allow other relatives or legal guardians to give the consent.
All of these states allow minors to get around the parental involvement requirements if they get a waiver from a judge and meet certain conditions. They also allow for exceptions in cases of medical emergency, incest, assault, or neglect of a minor.
Requiring abortion clinics to bury or cremate the remains of fetuses
In the past few years, five states states have introduced and passed laws requiring that fetal remains resulting from abortions, miscarriages, or stillbirths be either cremated or buried, regardless of the patient’s wishes and largely at the patient’s expense.
The states that have imposed these laws have claimed they are necessary to preserve the “dignity” of the foetus, but abortion-rights advocates say they are simply another way of shaming and imposing additional burdens on women who choose abortion.
While North Carolina’s requirement is still intact, federal judges struck down both Texas’ and Indiana’s attempts to enact such laws. The legality of similar measures passed in Louisiana and Arkansas are still being fought out in the courts, and are thus not being enforced.
“Regulations to require burial or cremation of fetal tissue further stigmatised abortion services and pregnancy loss, and may contradict the wishes of abortion patients,” Guttmacher said in 2018.
Trigger laws if Roe falls
If the Supreme Court even reverses itself and overturns Roe v. Wade, four states have trigger laws that would immediately make abortion illegal within their borders.
Ten states have their pre-Roe abortion bans still in effect that currently aren’t enforced, which would go into effect if Roe ever falls. On the flip side, seven states have laws that would keep abortion legal if the court strikes down Roe.
State funding for crisis pregnancy centres
Crisis pregnancy centres, or CPCs, are centres with the goal to dissuade pregnant women from seeking abortion. They are commonly affiliated with anti-abortion religious groups.
CPCs have come under scrutiny in recent years for masquerading as legitimate medical providers (some are licensed to administer sonograms or pregnancy tests but many are not) to provide false or misleading claims about abortion to unsuspecting patients seeking fact-based information about the practice.
A 2006 Congressional report found 87% of CPCs surveyed disseminated medically discredited claims that abortion is linked to breast cancer, mental illness, uterine damage, and infertility. Others have been reported to intentionally mislead women about abortion laws in their state or even how far along they are in their pregnancies.
Many CPCs even use confusing names and signage to trick patients into believing they are abortion clinics. Several have the word “choice” in their name, and some strategically locate themselves next to abortion clinics or park buses outside of them, offering free ultrasounds to lure women inside.
Partially thanks to about $US60 million in federal funding combined with millions more in funding from states, CPCs have become widespread in America, outnumbering actual abortion clinics in many areas. Mississippi, for example, has 38 crisis pregnancy centres, one of which is located across the street from the state’s one remaining abortion clinic.
“Choose Life” licence plates
One of the subtle ways states fund CPCs and other anti-abortion efforts are by selling specialised “choose life” licence plates through their Department of Motor Vehicles, going for anywhere between $US25 and $US70.
Seventeen of the 32 states that offer such plates donate part of the proceeds to CPCs or other anti-abortion organisations, and 19 give proceeds to adoption agencies or adoption counseling services.
Ten states prohibit revenue from “choose life” plates from funding any organisations that offer abortion services, counseling, or referrals.
Some organisations have criticised states for the practice, arguing that the government cannot legally use taxpayer money to explicitly endorse certain political views over others. The matter has not yet been challenged in court.
Restrictions on Plan B
Though not technically an abortion restriction because emergency contraception prevents sperm from fertilizing an egg, laws restricting access to Plan B and other forms of emergency contraception can keep women from choosing to get pregnant, too.
Plan B One-Step was approved by the FDA for over-the-counter purchase in 2013, and many states have chosen to expand access to emergency contraception, but others restrict access to the drug, which prevents fertilization when taken shortly after unprotected sex.
Nine states restrict access to emergency contraception, with six permitting pharmacists to refuse to dispense any contraceptives, and three allowing them to deny dispensing only emergency contraception.
Arkansas and North Carolina additionally do not include emergency contraception in their contraceptive coverage mandates, and Texas excludes contraception from its state family planning programs.
Laws around the protection of abortion clinics
In many areas, abortion clinics are frequented by protestors outside who often intimidate and harass patients who try to enter, presenting a significant deterrent to patients as they enter and creating a general safety hazard.
Only 14 states have laws that protect patients and staff at clinics from being harassed and intimidated in this manner.
While 12 states prohibit blocking the entrance to a clinic, only six make it a crime to harass abortion providers or patients, three make vandalism and property damage of clinics illegal, and two prohibit harassing clinics by telephone.
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