AN OVERVIEW OF ABORTION LAW

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 the 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 Texas Whole Woman’s Health v. Hellerstedt, the Supreme Court ruled that when applying the “undue burden” standard of PP v. Casey, requiring abortion clinics to meet ambulatory surgical center requirements or providers to have admitting privileges places an undue burden on women. This causes significant reduction of services, while failing to advance the state’s interest in promoting health.

Many state laws requiring waiting periods, mandatory counseling, and parental consent or notification have been implemented. Record numbers of restrictive state laws have been passed since 2010.

LAW AND POLICY HIGHLIGHTS

Abstracted from Guttmacher Institute’s State Policies in Brief: An Overview of Abortion Law, April 1, 2016.

  • Gestational Limits: 43 states prohibit abortions, except to protect the woman’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. 32 states and Washington D.C. prohibit the use of state funds except in cases of danger to life, rape, or incest. 17 states use their own funds to pay for all or most medically necessary abortions for Medicaid enrollees in the state.
  • Coverage by Private Insurance: 11 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 additional abortion coverage at an additional cost.
  • Waiting Periods: 28 states require a specified waiting period, usually 24 hours, between counseling and abortion; 14 of these require two separate clinic trips because the counseling must take place in person.
  • State-Mandated Counseling: 17 states mandate a woman be given pre-abortion counseling with inaccurate information on at least one of the following: a purported link to breast cancer (5 states), early fetal pain (12 states), long-term mental health consequences (9 states), life at conception (6 states), or required ultrasound (13 states).
  • Parental Involvement: 38 states require parental involvement in a minor’s decision to have an abortion; the majority requires parental consent, and the rest require notification.
  • 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.
  • 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.
  • Physician Requirements: 37 states require an abortion to be performed by a licensed physician, and 1 state (MS) restricts abortion provision to obstetrician gynecologists. At the time of this writing, advanced practice clincians can provide medication abortion in 13 states, and aspiration abortions in 5 states (VT, NH, MT, OR, and CA). Eighteen states require that the clinician providing a medication abortion be physically present during the procedure, thus prohibiting the use of telemedicine for this purpose.
  • Hospital Requirements: 19 states require an abortion to be performed in a hospital after a specified point in the pregnancy, and 18 states require the involvement of a second physician after a specified point.
  • 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.
  • 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.

Ask faculty at your site to assist you in learning important state reporting requirements for abortion, domestic violence, child abuse, and STIs. For the most current information on state legislation, visit: http://www.guttmacher.org/statecenter/index.html.