The Supreme Court's decision in the 1972 case of Roe v. Wade is one of the most controversial legal decisions in the modern history of the United States. Roe made it possible for women in all states to legally terminate a pregnancy, with certain gestational time limits.
Following Roe, opponents of abortion immediately began to push for restrictions that would limit the number of abortions performed. From the 1976 case of Planned Parenthood of Central Missouri v. Danforth to the 2021 case of U.S. vs. Texas, legal requirements, abortion restrictions, and barriers to abortion access have steadily grown.
According to the ACLU, state legislatures have passed more than 1,100 restrictions since 1973. Though abortion is legal in the United States, five states have only one abortion provider in the state, making safe, legal abortion inaccessible for many people, especially young and poor women.
Below is a summary of the most common abortion requirements, restrictions, and barriers in the U.S. states.
- Counseling requirements
- Ultrasound requirement
- Waiting periods
- Doctor and hospital requirements
- Gestational abortion limits
- Parental consent requirements
- Partial-birth abortion ban
- Public funding restrictions
- Private insurance coverage restrictions
- Refusal of care rule
1. Counseling Requirements
Thirty-three (33) states require that a woman or girl receive counseling before the medical procedure of abortion. Counseling prior to a medical procedure ensures that the patient is able to provide informed consent.
The medical principle of informed consent contains three elements:
- That the patient has the capacity to make decisions about their own care
- That their participation is voluntary
- That they have adequate and appropriate information to make an informed decision
- Seven states require that women and girls be told that a link may exist between breast cancer and abortion. (Breast cancer researchers have found no evidence to support such an assertion.)
- Twenty-four (24) states require that patients be presented with a description of all abortion procedures. Those seeking a first-term abortion will be provided information on late-term abortion, a much different procedure.
- Eight states require that patients be told about the purported mental health effects of abortion, such as “post-abortion traumatic stress syndrome," even though that mental disorder is not recognized by the American Psychiatric Association or the American Psychological Association.
- Thirteen (13) states require that the patient be told about fetal pain. Medical views vary on this point, particularly before 24 weeks of gestation.
- Five (5) states require that the patient be told personhood begins at conception.
In 2015, Arkansas became the first state to legislate that patients must be told that they can interrupt a medication-induced abortion. Seven other states followed suit. The American Medical Association (AMA) balked at legislation that forced doctors to provide “false, misleading, and non-medical information." A medication abortion, once begun, is not considered reversible. The AMA said it “undermines [the provider-patient] relationship…with messages that contradict reality and science." The laws were challenged in court.
Legal scholars and pro-choice proponents see a connection between state requirements to provide medically unsupported information and the Supreme Court's decision in Gonzalez v. Carhart. Rachel Benson Gold, of the Guttmacher Institute, said the ruling deferred to legislative opinion rather than medical evidence, particularly in cases where there is medical disagreement.
2. Ultrasound Requirements
Twenty-seven (27) states have some ultrasound requirements. Sixteen (16) states mandate that a medical provider conduct an ultrasound prior to an abortion. Six states require the medical provider to show and describe the image. Eight states require that they ask the patient if they would like to see the image. An ultrasound is not a medically necessary procedure in a first-trimester abortion.
3. Waiting Periods
Twenty-five (25) states require a waiting period between counseling and an abortion procedure. The waiting period ranges from 24-72 hours. In 12 of those states, a patient will be required to make more than one visit to the clinic. If a woman/girl has had to travel a long distance to find a legal abortion provider, this can be an added burden.
4. Doctor and Hospital Requirements
Eight (8) states require abortion clinics to be located within a specified distance from a hospital. Twenty-one (21) states require a relationship with a hospital in case of a medical emergency. Hospitals are not required to provide such a relationship. Eighteen (18) states have regulations that apply even to locations where only medication abortion care is provided.
The state may require that an abortion be performed in a hospital rather than a clinic, depending on the trimester. Some states require a second physician to be present during a late-term abortion to care for a child if there is a live birth.
5. Gestational Abortion Limits
Gestational limits are an abortion restriction. As of September 2021, twenty-three (23) states banned abortion after a certain gestational time period. This typically ranges from "detection of fetal heartbeat" (6 weeks in Texas) to fetal viability at 24 weeks.
Two significant cases have come before the Supreme Court in 2021 regarding gestational limits.
Dobbs v. Jackson Women's Health Organization arose from a 2018 law known as the Gestational Age Act. That law never went into effect because it was blocked for banning abortion before fetal viability. It would ban almost all abortions after 15 weeks of pregnancy. A decision from the court is expected in 2022.
The Texas case involves Senate Bill 8 (SB 8), legislation that bans abortion after the detection of what politicians called a "fetal heartbeat." This was said to occur at 6 weeks of gestation. However, at this stage of development, an embryo does not have a heart. An actual human heart can't be seen on an ultrasound until 16 to 18 weeks of fetal development.
Also problematic for women who might seek an early abortion is the fact that few women know they are pregnant at "6 weeks" gestation. Pregnancy is dated from the last menstrual period. This means that at 6 weeks, an embryo may only have implanted in the womb three weeks prior.
The text of the Texas abortion law claims that "fetal heartbeat has become a key medical predictor that an unborn child will reach live birth." But medical doctors say there is no correlation between the flutter of embryonic cells and the viability of a pregnancy.
"We don't use it to date a pregnancy or, honestly, to predict that pregnancy is going to continue until delivery," Dr. Samantha Kaplan, an OB-GYN at Boston Medical Center told National Public Radio.
The new law was challenged at the U.S. Supreme Court by the U.S. Justice Department in U.S. vs. Texas. The Supreme Court allowed the law to remain in effect. Furthermore, it prevented medical providers from suing government officials who try to enforce it. But it allowed medical providers to continue their lawsuits through the lower courts.
6. Parental Consent Requirements
Thirty-eight (38) states require parental involvement in the abortion decision of a pregnant child under the age of 18. Some states require notification only; some require consent. Kansas, Mississippi, and North Dakota require consent from both parents. Thirty-seven (37) states allow a judge to decide if parental involvement is needed. In some cases, a judge may decide if an abortion is in the girl's best interest. Sixteen (16) states allow a minor to obtain an abortion in cases of abuse, assault, incest, or neglect.
7. "Partial-Birth" Abortion Ban
The term "partial-birth abortion" was coined in 1995 by the National Right to Life Committee. It refers to a specific medical procedure developed for late-term abortions. Late-term abortions are more likely to occur because of fetal impairment or abnormality.
Called dilation and extraction (D&X), the fetus was partially delivered into the birth canal before aborting it. The technique was developed to prevent cervical damage. The intent was to safeguard the woman's ability to carry a child at a later time. The federal government banned the use of this method in most cases (Gonzales v. Carhart, 2007).
8. Public Funding Restrictions
The 1977 Hyde Amendment forbade the use of Medicaid funds for abortion, except when a woman's life is in danger, or rape or incest. Medicaid is a joint federal-state program for the poor. States must cover abortions that meet these federal exceptions. One state (South Dakota) has a particularly restrictive abortion law. It limits public funding for abortion to only those cases when a woman's life is in danger. Some states use their own funds to pay for medically necessary abortions. Nine states do so only as a result of a specific court order.
In 1979 the Department of Defense (DOD) appropriations bill prohibited the use of federal funds to provide abortion services for military service members and their families. In 1988, the Reagan administration stopped the provision of abortion services in military hospitals entirely.
In 1988, the Clinton administration reversed the DOD policy. American servicewomen and military family members could again access to abortion services at military hospitals using private funds.
Republican leadership under the Trump administration partially reversed the DOD policy. They banned all abortions on military bases — even if paid for with private funds — except in cases of rape, incest, or life endangerment.
9. Private Insurance Coverage Restrictions
Only 6 states require abortion to be covered by private insurance companies, according to the Guttmacher Institute. Eleven (11) states restrict insurance coverage of abortion in all private insurance plans. Twenty-five (25) states restrict abortion coverage in plans offered through their state health insurance exchange. And 22 states restrict abortion coverage for public employees.
Equally troubling for those seeking to prevent unwanted pregnancy, twenty (20) states now allow some employers and insurers to refuse to provide contraceptive coverage. Illinois and Missouri allow any business, hospital, or insurance company to refuse to cover birth control.
10. Refusal of Care Rule
Under the Trump Administration, the Department of Health and Human Services (HHS) finalized refusal of care rules. The new rules would have allowed hospitals, doctors, nurses, pharmacists, paramedics, and receptionists to refuse to provide reproductive health care if it conflicted with their religious or personal beliefs. The rule was struck down in New York federal court.
A majority of states allow medical institutions to refuse to provide abortions. Some only allow refusal by private or religious hospitals. Some states allow individual health care providers to refuse to perform abortions.
Confused About Your State's Abortion Laws? Consider Speaking with an Attorney
Few areas of law change as much as those involving reproductive rights. Medical providers who want to stay in compliance with the law may find that difficult. If you need legal help navigating abortion laws in your state, contact a family law attorney.
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