Key U.S. Supreme Court decisions serve as the foundation for state abortion laws.
In the 1973 Roe v. Wade decision, the Court established that:
- In first trimester (up to 14 weeks), state laws cannot interfere with a woman’s right to end a pregnancy; decisions are left to a woman and her medical provider.
- During second trimester (14 to 24 weeks), state laws may regulate abortion procedures only in order to protect the woman’s health.
- During third trimester (after 24 weeks), state laws may prohibit abortion except when it is necessary to preserve the life or health of the woman.
In the 1992 Planned Parenthood of SE Pennsylvania v. Casey decision, the Court established that:
- States can restrict abortions, even in the first trimester, as long as restrictions do not place “undue burden” on women.
- In 2016, Whole Women’s Health v. Hellerstedt confirmed that compounding effects of multiple restrictions unfairly singled out abortion providers. In 2020, a similar challenge was brought to a more conservative Supreme Court in June Medical Services v. Russo, and may undermine the ability of abortion providers to bring cases on behalf of patients.
WHAT IF ROE FELL?
United States – What if Roe Fell?
U.S. LAW AND POLICY HIGHLIGHTS
Abstracted from Guttmacher Institute’s State Laws and Policies: An Overview of Abortion Law, March, 2020. (Note: Numbers accurate as of publication date and may change with pending cases and legislation.)
Record numbers of restrictive state laws were passed in the last decade.
- Gestational Age Limits: 43 states prohibit abortions, except to protect the patient’s life or health, after a specified point in pregnancy (most often fetal viability).
- Public Funding: The Hyde Amendment bars the use of federal funds to pay for abortion unless the pregnancy arises from incest or rape, or to save the life of the patient, which disproportionately impacts communities of color who are disproportionately covered by public funding. 33 states and D.C. prohibit the use of state funds except in cases of danger to life, rape, or incest. 16 states use their own funds to pay for all or most medically necessary abortions for Medicaid enrollees in the state.
- Coverage by Private Insurance: 12 states restrict coverage of abortion in private insurance plans, most often limiting coverage only to when the woman’s life would be endangered if the pregnancy were carried to term. Most states allow the purchase of abortion coverage at an additional cost. Most Title X clinics carry malpractice insurance that specifically excludes abortion procedures.
- State-Mandated Counseling: 28 states mandated counselling intended to deter a person from choosing an abortion that does not follow established principles of informed consent. In 20 states, this counseling includes false medical information on at least one of the following: a purported link to breast cancer (4 states), infertility (4 states), long-term mental health consequences (8 states), early fetal pain (13 states), reversibility of medication abortion (6 states), fetal personhood (5 states).
- Waiting Periods: 27 states require a specified waiting period, after state mandated counselling, usually 24 hours, though 6 states require 72 hours; 14 of these require two separate clinic trips because the counseling must take place in person.
- Medically Unnecessary Ultrasound: 14 states require an ultrasound prior to an abortion regardless of medical necessity. In several states, patients are forced to view and listen to descriptions of ultrasound images despite their wishes.
- Parental Involvement: 37 states require parental involvement in a minor’s decision to have an abortion; 26 require parental consent, and the remainder require notification of one or both parents.
- Targeted Regulation of Abortion Providers: 24 states regulate abortion providers beyond what is necessary to ensure patients’ safety; 17 of these even apply to sites where only medication abortion is provided. 14 states require providers have hospital affiliation.
- Telemedicine MAB Banned: 18 states ban use of telemedicine for medication abortion.
- Physician Requirements: 33 states require all abortions be performed by a licensed physician, & one (MS) restricts abortion provision to obstetrician gynecologists only. 17 states allow APCs to provide medication abortion, & 7 of these also allow APCs to provide aspiration abortion.
- Hospital Requirements: 19 states require an abortion to be performed in a hospital after a specified point in the pregnancy, and 17 states require the involvement of a second physician after a specified point.
- Refusal clauses: 45 states allow individual health care providers to refuse to participate in an abortion. 42 states allow institutions to refuse to perform abortions, 16 of which limit refusal to private or religious institutions. 12 states allow institutions or providers including pharmacists to refuse to provide services related to contraception alone.
- Gag Rule: Prohibits clinics that receive federal funding from providing referrals for abortions or providing options counseling.
- Protection Against Clinic Violence: The Freedom of Access to Clinic Entrances (FACE) Act is a federal law that was enacted in 1994 to protect clinics, medical personnel, and patients seeking reproductive health care against blockades and violence. Sixteen states and the District of Columbia have passed similar laws to prohibit specific actions or provide protected “bubble zones” outside of clinics.
- Federal Abortion Ban: In 2007 the “so-called PBA Ban” Act was upheld. This decision retreats from an unbroken line of precedent that a woman’s health must remain the paramount concern in any abortion regulation, as it includes no health exception.