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Details on State Abortion Laws

The state abortion laws in this chart contain three main parts: the definition of an illegal abortion, the definition of a legal abortion, and a section dealing with consent and/or notice. There are also sections dealing with the penalties for violating the laws, residency requirements for undergoing an abortion in the state, waiting periods, and abortionists' licensing requirements.

Illegal Abortion

In no state is unrestricted abortion legal. About twenty states define an illegal abortion in terms of the definition of a legal abortion; for example, Hawaii defines an illegal abortion as failure to meet the criterion of a legal abortion. (The definition of a legal abortion, in Hawaii, is simply the destruction of a nonviable fetus.). About fifteen states, however (predominantly in the East and the South) do define illegal abortions without reference to legal instances of abortion.

Of these states, only some have specific statutes defining an illegal abortion; others merely define a legal abortion and impose penalties for their violation. The remaining states have definitions that specifically mention the limits of when an abortion is acceptable. For example, West Virginia defines an illegal abortion as any activity "with intent to destroy an unborn child or produce abortion [or] if mother dies unless to save the mother."

Legal Abortion

Legal abortion is usually defined in terms of the mother's convenience or health. Though few definitions mention the life or health of the fetus, many refer to its "viability" as a standard for when an abortion may be performed with impunity, and without further attempt to define the term. These definitions are objective in that specific time parameters are set, outside of which an abortion cannot legally be done, absent exigent circumstances.

The most unrestrictive of all definitions occur in Hawaii and Alaska, where a legal abortion is an abortion on "any nonviable fetus." After viability has been established, most states give additional instances when abortion may be legal: to save the life of the mother or if there are severe defects present in the fetus.

State of the Statutes

Prior to 1973 and the Roe v. Wade decision by the Supreme Court (410 U.S. 113 (1973), the regulation of abortion was left to the states. In Roe v. Wade, the Supreme Court decided that the Constitution protected a woman's right to abortion, a novel right said to be found in the unstated right to privacy, from state regulation during the first trimester of pregnancy. However, the Court also held that the states have an "important and legitimate interest in protecting the potentiality of human life."

The abortion controversy has revolved around the states' consequent attempts to protect unborn life. The Supreme Court's patchwork of opinions following Roe has left abortion a highly unsettled area of law. Many statutes reflect state attempts at balancing a woman's right to choose an abortion with the state's compelling interest in protecting fetal life.

The statutes in this chapter are as they currently appear in the state codes. Interestingly enough, some of the statutes may be unconstitutional if challenged, based on prior Supreme Court rulings. Following are the general areas of abortion legislation and the Supreme Court's treatment of each:

  • Parental Consent. States may require a minor seeking an abortion to obtain the consent of a parent or guardian as long as there is an adequate judicial bypass procedure.

  • Informed Consent. A state may require a physician to provide a woman with such information such as alternatives to abortion, sources of financial aid, development of the child, and the gestational age of the child. Prior to 1992, informed consent provisions were unconstitutional.

  • Spousal Consent. A state may not require a married woman to obtain her spouse's consent before undergoing an abortion.

  • Abortion Method. A state may not require the physician performing the abortion to use the technique providing for the best opportunity for the unborn child to survive the abortion.

  • Second Physician. A state may not require that a second physician attend the abortion to take immediate control of the care of a child born alive in an abortion unless the provision has an exception for a situation when the health of the mother was endangered.

  • Waiting Period. A twenty-four hour waiting period does not constitute an undue burden on a woman's decision to abort and, therefore, is constitutional. Prior to 1992, waiting period requirements were unconstitutional.

  • Parental Notice. A state may require that one parent be notified of a minor's abortion, but not two.

  • Fetal Remains. States may not require that the remains of the unborn child are disposed of in a "humane and sanitary" manner as it may suggest a mandate for some sort of "decent burial."

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