Is Abortion Legal in Every State?

While Legal, Abortion Services May Be Hard to Find

Anti-Abortion Activists March In Washington
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Abortion is legal in every state and has been since 1973. In the subsequent decades, however, states have imposed restrictions on abortions. In 2018 and 2019, a number of them, including Georgia, Ohio, and Kentucky, introduced "heartbeat" bills to prevent women from terminating their pregnancies beyond the six-week mark. At this point, a fetal heartbeat can be detected, but heartbeat bills have faced criticism from reproductive rights activists who argue that many women don't know they're pregnant at this early stage, known as the embryonic period. As of October 2019, courts had blocked each of the heartbeat bills from passing on the grounds that these laws are unconstitutional.

Before the uptick in "heartbeat" bills, states banned abortion after the point of viability in the second trimester. Also, there is a federal ban on a specific type of abortion and a ban on federal funding for many abortions. So, while the procedure is, in fact, legal, women who want to terminate their pregnancies may encounter barriers that make doing so challenging. Low-income individuals and those in rural areas may face more difficulties obtaining abortions than their wealthier counterparts or women in cities.

Abortion Law and Supreme Court Decisions

The Supreme Court's 1973 ruling in Roe v. Wade established that the U.S. Constitution protects one's right to have an abortion. Due to this court decision, states are prohibited from banning abortions performed before the point of viability.

The Roe decision originally established viability at 24 weeks; Casey v. Planned Parenthood (1992) shortened it to 22 weeks. This prohibits states from banning abortions before about five-and-a-quarter months of gestation. The heartbeat bills passed by various states sought to ban abortion well before the point of viability, which is why the courts declared them unconstitutional.

In the 2007 case Gonzales v. Carhart, the Supreme Court upheld the Partial-Birth Abortion Act of 2003. This law criminalizes the procedure of intact dilation and extraction, a technique commonly used during second-trimester abortions.

Limited Access

Although abortion is legal in every state, it is not easily accessible everywhere. Anti-abortion activists and legislators have managed to drive some abortion clinics out of business, a strategy that effectively functions as a state-level ban in places with few abortion providers. Mississippi is a case in point; in 2012, the state nearly lost its only abortion clinic due to a law requiring abortion providers to be "certified obstetrician/gynecologists with privileges at local hospitals." At the time, just one doctor at Jackson Women's Health Organization had these privileges.

Seven years after Mississippi's sole abortion clinic fought to stay open, the fate of Missouri's only such clinic hung in the balance because of a licensing dispute. In early 2019, Missouri's health department failed to renew the clinic’s license, arguing that the facility was out of compliance. Planned Parenthood opposed this decision, but the clinic's future remained uncertain and tied up in the courts, as of fall 2019. In addition to Missouri and Mississippi, four other statesKentucky, West Virginia, North Dakota, and South Dakotahave just one abortion clinic.

The reasons several states have just one abortion clinic stems from Targeted Regulation of Abortion Providers (TRAP) laws. This legislation limits abortion clinics through complex and medically unnecessary building requirements or by requiring providers to have admitting privileges at local hospitalsthe case in Mississippi in 2012. Other laws, specifically those that require ultrasounds, waiting periods, or pre-abortion counseling, pressure women to reconsider ending their pregnancies.

Trigger Bans

A number of states have passed trigger bans that would automatically make abortion illegal if Roe v. Wade is overturned. Abortion will not remain legal in every state if Roe is one day overturned. It may seem unlikely, but many conservative politicians, including President Donald Trump, have said that they will work to appoint justices who will overturn this important Supreme Court decision. As of 2019, the high court was widely considered to have a slight conservative majority.

Hyde Amendment

The Hyde Amendment Codification Act, first attached to legislation in 1976, prohibits the use of federal money to pay for abortions unless the life of the mother is endangered if the fetus is carried to term. The allowance for federal funding for abortion was expanded to include cases of rape and incest in 1994. This primarily impacts Medicaid funding for abortion. States may use their own money to fund abortions through Medicaid. The Hyde Amendment has implications for the ​Patient Protection and Affordable Care Act, which is more commonly known as Obamacare.

Sources

  • Jennifer Calfas. "Hearing to Decide Fate of Missouri’s Only Abortion Clinic." Wall Street Journal, October 27, 2019.
  • Anna North. "All of the 6-week Abortion Bans Passed This Year Have Now Been Blocked in Court." Vox, October 2, 2019.
  • Rich Phillips. "Judge Lets Mississippi's Only Abortion Clinic Stay Open For Now." CNN, July 11, 2012.
  • Amelia Thomson-DeVeaux. "The Supreme Court Might Have Three Swing Justices Now." FiveThirtyEight, July 2, 2019.