The Supreme Court's decision in the 1973 case of Roe v. Wade is one of the most controversial legal decisions in United States history. Roe allowed women in all states to terminate a pregnancy with certain gestational time limits legally.
Following Roe, opponents of abortion began to push for restrictions limiting 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 American Civil Liberties Union (ACLU), state legislatures have passed over 1,100 restrictions since 1973. Though abortion is legal in the United States, six states have only one abortion provider. This makes safe and legal abortions 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 requirements
- 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
- Speak with an attorney
Thirty-three states require that a woman or girl receive counseling before the medical procedure of abortion. Counseling before a medical procedure ensures that the patient can 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
The information a patient must get during a counseling session varies by state. In a review of state policies, the Guttmacher Institute found that:
- 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 this.)
- Twenty-four states require that patients be presented with a description of all abortion procedures. Those seeking a first-term abortion will be given 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 the American Psychiatric Association or the American Psychological Association does not recognize that mental disorder.
- Thirteen states require that the patient be told about fetal pain. Medical views vary on this point, particularly before 24 weeks of gestation.
- Five states require that the patient be told personhood begins at conception.
In 2015, Arkansas became the first state to legislate that providers must tell patients that they can interrupt a medication-induced abortion. Seven other states followed suit.
But the American Medical Association (AMA) balked at legislation that forced doctors to provide "false, misleading, and non-medical information" about medication abortions. According to the AMA, a medication abortion, once begun, is not reversible. The AMA said it "undermines [the provider-patient] relationship ... with messages contradicting 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.
Twenty-seven states have some ultrasound requirements. Sixteen states mandate that a medical provider conduct an ultrasound before an abortion. Six states require the medical provider to show and describe the image. Eight states require asking the patient if they want to see the image. An ultrasound is not a medically necessary procedure in a first-trimester abortion.
Twenty-five 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 must make more than one visit to the clinic. If a person has had to travel a long distance to find a legal abortion provider, this is an added burden.
Eight states require abortion clinics to be located within a specified distance from a hospital. Twenty-one states require a relationship with a hospital in case of a medical emergency. Hospitals are not required to provide such a relationship. Eighteen states have regulations that apply even to places 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 present during a late-term abortion to care for a child if there is a live birth.
Gestational limits are an abortion restriction. Whether a certain type of abortion is legal often depends on the time during the gestational period when the pregnant person seeks an abortion. Whether an abortion is legal can also relate to other factors, as well, of course. But the period of time when an abortion is legal typically ranges from "detection of fetal heartbeat" (six weeks in Texas) to fetal viability at 24 weeks. But since Roe v. Wade was overturned in 2022, 14 states have banned abortions within these time frames.
Two significant cases have come before the Supreme Court on gestational limits. The first is the case that SCOTUS decided in 2022, Dobbs v. Jackson Women's Health Organization, and U.S. v. Texas.
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 have banned almost all abortions after 15 weeks of pregnancy. The Supreme Court decided this case in 2022. As a result, whether an abortion is legal is a matter that states can decide for themselves. There is no outright ban on abortions. It is just an issue that each state may decide in its own way.
U.S. Supreme Court Precedent on 'Fetal Heart Beat' Laws
In U.S. v. Texas, a landmark Supreme Court case from 2021, SCOTUS weighed in on "fetal heartbeat" laws.
The case involves Senate Bill 8, legislation that bans abortion after the detection of what politicians called a "fetal heartbeat." This was said to occur at six weeks of gestation. But at this stage of development, an embryo does not have a heart. There is no actual human heart visible on an ultrasound until 16 to 18 weeks of fetal development.
Also problematic for women seeking an early abortion is that few women know they are pregnant at six weeks of gestation. Pregnancy is dated from the last menstrual period. This means that at six 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 will 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.
In response to SCOTUS' decision in Dobbs, U.S. Attorney General Merrick Garland released a statement of support for abortion rights: “The Justice Department strongly disagrees with the Court's decision. This decision deals a devastating blow to reproductive freedom in the United States."
In the statement, Garland continued: “It will have an immediate and irreversible impact on the lives of people across the country. And it will be greatly disproportionate in its effect – with the greatest burdens felt by people of color and those of limited financial means."
It's important to note that there is no nationwide ban on abortions. There is no universal criminalization of abortion in effect. After Dobbs, it is just the case that each state can make its own policies on abortion. In other words, abortion is now an issue regulated under state law. It is still possible to get reproductive health services, including abortions.
If you live in a state where abortion is illegal, you can also cross state lines to a state where abortion is legal. In other words, abortion rights are still observed to limited degrees. But there is now no constitutional right to an abortion. Reproductive rights are fundamental rights. But it is a bit more challenging to exercise these rights now.
Thirty-eight states require parental involvement in the abortion decision of a pregnant child under 18. Some states require notification only; some require consent. Kansas, Mississippi, and North Dakota require consent from both parents. Thirty-seven states allow a judge to decide if parental involvement is needed. Sometimes, a judge may decide if an abortion is in a person's best interests. Sixteen states allow minors to get an abortion in cases of abuse, assault, incest, or neglect.
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 this method in most cases (Gonzales v. Carhart, 2007).
The 1977 Hyde Amendment forbade using Medicaid funds for abortion, except when a woman's life is in danger, rape, or incest. Medicaid is a joint federal-state program for those of lower income levels. 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 using federal funds to provide abortion services for military service members and their families. In 1988, the Reagan administration stopped 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 care at military hospitals using private funds.
Republican leadership under the Trump administration partially reversed the DOD policy. It banned all abortions on military bases — even if paid for with private funds — except in cases of rape, incest, or life endangerment.
Only six states require abortion to be covered by private insurance companies, according to the Guttmacher Institute. Eleven states restrict insurance coverage of abortion in all private insurance plans. Twenty-five 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, 20 states now allow some employers and insurers to refuse to provide contraceptive coverage. Illinois and Missouri will enable any business, hospital, or insurance company to refuse to cover birth control.
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.
- Center for Reproductive Rights: This nonprofit provides initiatives and advocacy services that protect reproductive rights. It's a useful resource in exercising your right to choose.
- Planned Parenthood: This organization provides reproductive health care and abortion services. If you qualify as a low-income patient, you can also receive medical care and family planning services at reduced costs. Organizations like this can help you exercise your right to bodily autonomy.
Few areas of law change as much as those involving reproductive rights. Medical providers who want to comply with the law may find that difficult. If you need legal help navigating abortion laws in your state, contact a family law attorney.
The overturning of Roe v. Wade in 2022 posed significant barriers for people in getting abortions. Women's rights and the rights of pregnant people are under threat. No federal law indeed protects peoples' right to get abortions. But abortions are still legal in many states. In many states, for example, you can still undergo medication abortions and get the medications at pharmacies.
Can I Solve This on My Own or Do I Need an Attorney?
- The laws surrounding reproductive rights vary by state
- You may need legal help to understand frequent changes to these laws
- An attorney can help you protect your reproductive rights
Get tailored advice about your rights and ask a lawyer questions. Many attorneys offer free consultations.