Abortion in the United States by state

Abortion in the United States is legal, via the landmark case of Roe v. Wade. However, individual states can regulate/limit the use of abortion, or create "trigger laws", which is a law that makes abortion illegal within the first and second trimesters, but would only be take effect and be enforced after Roe is overturned by the US Supreme Court. Currently, 6 states have trigger laws and 3 other states have laws intending on criminalizing abortion.^[1]

[edit] Current legal status nationwide

Abortion laws in the U.S. prior to Roe.

Illegal

Legal in case of rape

Legal in case of danger to woman's health

Legal in case of danger to woman's health, rape or incest, or likely damaged fetus

Legal on request

Parental notification and consent laws in the U.S.

No parental notification or consent laws

One parent must be informed beforehand

Both parents must be informed beforehand

One parent must consent beforehand

Both parents must consent beforehand

Parental notification law currently enjoined

Parental consent law currently enjoined

Mandatory waiting period laws in the U.S.

No mandatory waiting period

Waiting period of less than 24 hours

Waiting period of 24 hours or more

Waiting period law currently enjoined

Abortion counseling laws in the U.S.

No mandatory counselling

Counselling in person, by phone, mail, and/or other

Counselling in person only

Counselling law enjoined

Fetal homicide laws in the fifty states

"Homicide" or "murder".

Other crime against fetus.

Depends on age of fetus.

Assaulting pregnant woman.

The current judicial interpretation of the U.S. Constitution regarding abortion in the United States, following the Supreme Court of the United States's 1973 landmark decision in Roe v. Wade, and subsequent companion decisions, is that abortion is legal but may be restricted by the states to varying degrees. States have passed laws to restrict late term abortions, require parental notification for minors, and mandate the disclosure of abortion risk information to patients prior to the procedure.^[2]

The key, deliberated article of the U.S. Constitution is the Fourteenth Amendment, which states that

“

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.^[3]

”

The official report of the U.S. Senate Judiciary Committee, issued in 1983 after extensive hearings on the Human Life Amendment (proposed by Senators Orrin Hatch and Thomas Eagleton), stated what substantially remains true today:

“

Thus, the [Judiciary] Committee observes that no significant legal barriers of any kind whatsoever exist today in the United States for a woman to obtain an abortion for any reason during any stage of her pregnancy.^[4]

”

One aspect of the legal abortion regime now in place has been determining when the fetus is "viable" outside the womb as a measure of when the "life" of the fetus is its own (and therefore subject to being protected by the state). In the majority opinion delivered by the court in Roe v. Wade, viability was defined as "potentially able to live outside the woman's womb, albeit with artificial aid. Viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks." When the court ruled in 1973, the then-current medical technology suggested that viability could occur as early as 24 weeks. Advances over the past three decades have allowed fetuses that are a few weeks less than 24 weeks old to survive outside the woman's womb. These scientific achievements, while life-saving for premature babies, have made the determination of being "viable" somewhat more complicated. As of 2006, the youngest child to survive a premature birth in the United States was a girl born at the Baptist Hospital of Miami at 21 weeks and 6 days' gestational age.^[5]

In comparison to other developed countries, the procedure is more available in the United States in terms of how late the abortion can legally be performed. However, in terms of other aspects such as government funding, privacy for non-adults, or geographical access, some U.S. states are far more restrictive. In Europe, abortion is usually only allowed up to 12 weeks (18 weeks in Sweden, 21 weeks in the Netherlands, 24 weeks in Great Britain). In France, unless the fetus is severely deformed or the woman's health is directly at risk, any abortion after the first twelve weeks is illegal. There are no laws or restrictions regulating abortion in Canada, while Australia places heavier restrictions on the procedure. In many countries the right to abortion has been legalized by respective parliaments, while in the U.S. the right to abortion has been deemed a part of a constitutional right to privacy by the Supreme Court.

Because of the split between federal and state law, legal access to abortion continues to vary somewhat by state. Geographic availability, however, varies dramatically, with 87 percent of U.S. counties having no abortion provider.^[6] Moreover, due to the Hyde Amendment, many state health programs which poor women rely on for their health care do not cover abortions; currently only 17 states (including California, Illinois and New York) offer or require such coverage.^[7] The 1992 case of Planned Parenthood v. Casey overturned Roe's strict trimester formula, but reemphasized the right to abortion as grounded in the general sense of liberty and privacy protected under the Due Process Clause of the Fourteenth Amendment to the United States Constitution: "If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." Advancements in medical technology meant that a fetus might be considered viable, and thus have some basis of a right to life, at 22 or 23 weeks rather than at the 28 that was more common at the time Roe was decided. For this reason, the old trimester formula was ruled obsolete, with a new focus on viability of the fetus.Since 1995, led by Congressional Republicans, the U.S. House of Representatives and U.S. Senate have moved several times to pass measures banning the procedure of intact dilation and extraction, also commonly known as partial birth abortion. After several long and emotional debates on the issue, such measures passed twice by wide margins, but President Bill Clinton vetoed those bills in April 1996 and October 1997 on the grounds that they did not include health exceptions. Congressional supporters of the bill argue that a health exception would render the bill unenforceable, since the Doe v. Bolton decision defined "health" in vague terms, justifying any motive for obtaining an abortion. Subsequent Congressional attempts at overriding the veto were unsuccessful.

On October 2, 2003, with a vote of 281-142, the House again approved a measure banning the procedure, called the Partial-Birth Abortion Ban Act. Through this legislation, a doctor could face up to two years in prison and face civil lawsuits for performing such an abortion. A woman who undergoes the procedure cannot be prosecuted under the measure. The measure contains an exemption to allow the procedure if the woman's life is threatened. On October 21, 2003, the United States Senate passed the same bill by a vote of 64-34, with a number of Democrats joining in support. The bill was signed by President George W. Bush on November 5, 2003, but a federal judge blocked its enforcement in several states just a few hours after it became public law. The Supreme Court upheld the nationwide ban on the procedure in the case Gonzales v. Carhart on April 18, 2007. The 5-4 ruling said the Partial Birth Abortion Ban Act does not conflict with previous Court decisions regarding abortion. The decision marked the first time the court allowed a ban on any type of abortion since 1973. The swing vote, which came from moderate justice Anthony Kennedy, was joined by Justices Antonin Scalia, Clarence Thomas, and the two recent appointees, Samuel Alito and Chief Justice John Roberts.

The legality of abortion in the United States is frequently a major issue in nomination battles for the U.S. Supreme Court. However, nominees typically remain silent on the issue during their hearings, because it is an issue that may come before them as judges. Various states have passed legislation on the subject of feticide.

[edit] State attempts to ban abortion

[edit] Colorado

Main article: Colorado Amendment 48 (2008)

The initiative was proposed jointly by Kristine Burton and Michael Burton^[8] of Colorado for Equal Rights.^[9] Colorado Amendment 48 was a proposed initiative to amend the definition of a person to "any human being from the moment of fertilization." On November 4, 2008, the initiative was turned down by 73.3% of the voters, despite the fact that Colorado is a purple state.^[10]

[edit] Louisiana

On June 19, 2006, Governor Kathleen Blanco signed into law a ban on most forms of abortion (unless the life of the mother was in danger or her health would be permanently damaged) once it passed the state legislature. Although she felt exclusions for rape or incest would have "been reasonable," she felt she should not veto based on those reasons. The bill would only go into effect if the United States Supreme Court reversed Roe v. Wade. Louisiana's measure would allow the prosecution of any person who performed or aided in an abortion. The penalties include up to 10 years in prison and a maximum fine of $100,000.^[11]

[edit] Mississippi

On February 27, 2006, Mississippi’s House Public Health Committee voted to approve a ban on abortion, and that bill died after the House and Senate failed to agree on compromise legislation.^[12]

On November 8, 2011, the Personhood amendment, to define personhood as beginning “at the moment of fertilization, cloning, or the functional equivalent thereof,” was rejected by 55% of voters. ^[13]

[edit] North Dakota

Main article: North Dakota HB 1572

North Dakota's HB 1572, otherwise known as the Personhood of Children Act, was a bill in the North Dakota Legislature which aims to "provide equality and rights to all human beings at every stage of biological development". This step could eventually eliminate all types of abortion for nearly any reason in the state of North Dakota.^[14] It would allocate rights of "the pre-born, partially born." If it had passed, it would have likely been used to challenge Roe v. Wade.^[15]

This legislation, sponsored by State Representative Dan Ruby, passed the North Dakota House of Representatives on February 17, 2009 by a vote of 51-41. On April 3, 2009 the North Dakota Senate defeated HB 1572 in a 29 to 16 vote.

[edit] South Dakota

Main article: Women's Health and Human Life Protection Act

In 2004, a bill outlawing abortion passed both houses of the legislature, but was vetoed by the Governor due to a technicality. The state's legislature subsequently passed five laws curtailing the legality of abortion in 2005.^[16] The majority of a legislative "task force" ^[17] then issued a report recommending that the Legislature illegalize all abortions, which would lead to a challenge of the constitutionality of Roe v. Wade in the United States Supreme Court. A separate minority report criticizing the process and reaching different conclusions was also released.^[18]

In February 2006, the Legislature passed the Women's Health and Human Life Protection Act, which was signed into law by Governor Mike Rounds on March 6, 2006. This law would have forbidden abortion under virtually every circumstance, including in cases of rape and incest. The law allowed "a medical procedure designed or intended to prevent the death of a pregnant mother." Physicians performing such procedures would have been required to "...make reasonable medical efforts under the circumstances to preserve both the life of the mother and the life of her unborn child."

The act had specifically defined pregnancy as beginning at the point of conception rather than at implantation into the uterine wall (see beginning of pregnancy controversy), which might have meant that WHHLPA applied to emergency contraception and possibly all forms of hormonal contraception.

Several members of the South Dakota legislative majority, as well as Governor Rounds, acknowledged that the overt goal of WHHLPA was to get the Supreme Court to overturn Roe ^[19] per the recommendation of the task force (the Supreme Court at that time was shifting in a conservative direction, one that might have been more amenable to overturning Roe).

A referendum to repeal the Women's Health and Human Life Protection Act was placed on ballot for the November 2006 statewide election due to a successful petition drive by the organization South Dakota Healthy Families. On May 30, over 38,000 petition signatures were filed, more than twice the 17,000 required to place a measure on the ballot. On November 7, WHHLPA was repealed by the South Dakota electorate; the vote was 56%-44% favoring repeal. ^[20]

[edit] State by state table

State	Bans of Abortion				Limits on Abortion					Pro-Choice Protection
	Status Before "Roe"		Current Status^[21]		General Limits			Limits on Minors
	Completely Illegal	Illegal with Limits	Trigger Law on Any Abortion	Trigger Law on Late Term Abortion	Waiting Period	Counseling	% of Counties Without Provider	At least One Parent Informed	At Least One Parent Consent	Freedom Act^[22]	Constitutional Protection^[23]	Grade given by NARAL^[24]
Alabama	No	Yes	No	Yes	Yes	Yes	93%^[25]	Yes	Yes	No	No	F
Alaska	No	No	No	Yes	None	Yes	83%^[26]	No	No	No	Yes	B-
Arizona	Yes	No	No	Yes	None	None	73%^[27]	Yes	Yes	No	Yes	B-
Arkansas	No	Yes	No	Yes	Yes	Yes	97%^[28]	Yes	Yes	No	No	F
California	No	Yes	No	No	None	None	41%^[29]	No	No	Yes	Yes	A+
Colorado	No	Yes	Yes	No	None	None	78%^[30]	Yes^[31]	No	No	No	C+
Connecticut	Yes	No	No	No	None	None	25%^[32]	No	No	Yes	Yes	A
Delaware	No	Yes	No	No	None	Yes	33%^[33]	Yes	No	No	No	C+
Florida	No	Yes	No	Yes	None	None	69%^[34]	Yes	No	No	Yes	D
Georgia	No	Yes	No	No	Yes	Yes	92%^[35]	Yes	No	No	No	D
Hawaii	No	No	No	No	None	None	20%^[36]	No	No	Yes	No	A
Idaho	Yes	No	No	Yes	Yes	Yes	93%^[37]	No	No	No	No	F
Illinois	Yes	No	No	Yes	None	None	92%^[38]	No	No	No	Yes	B-
Indiana	Yes	No	No	Yes	Yes	Yes	93%^[39]	Yes	Yes	No	Yes	F
Iowa	Yes	No	No	Yes	None	None	93%^[40]	Yes	No	No	No	C+
Kansas	Yes	No	No	Yes	Yes	Yes	96%^[41]	Yes	No	No	No	D-
Kentucky	Yes	No	No	Yes	Yes	Yes	98%^[42]	Yes	Yes	No	No	F
Louisiana	Yes	No	Yes	Yes	Yes	Yes	92%^[43]	Yes	Yes	No	No	F
Maine	Yes	No	No	No	None	None	63%^[44]	Yes	Yes	Yes	No	A
Maryland	No	Yes	No	No	None	None	58%^[45]	Yes	No	Yes	No	A
Massachusetts	No	Yes	No	No	None	Yes	14%^[46]	Yes	Yes	No	Yes	B-
Michigan	Yes	No	No	Yes	Yes	Yes	83%^[47]	Yes	Yes	No	No	F
Minnesota	Yes	No	No	No	Yes	Yes	95%^[48]	Yes	No	No	Yes	C+
Mississippi	No	Yes	No	Yes	Yes	Yes	99%^[49]	Yes	Yes	No	No	F
Missouri	Yes	No	Yes	Yes	Yes	None	96%^[50]	Yes	Yes	No	No	F
Montana	Yes	No	No	No	None	None	91%^[51]	No	No	No	Yes	A-
Nebraska	Yes	No	No	Yes	Yes	Yes	97%^[52]	Yes	No	No	No	F
Nevada	Yes	No	No	No	None	None	88%^[53]	No	No	Yes	No	A-
New Hampshire	Yes	No	No	No	None	None	50%^[54]	No	No	No	No	A-
New Jersey	Yes	No	No	Yes	None	None	19%^[55]	No	No	No	Yes	A-
New Mexico	No	Yes	No	No	None	None	88%^[56]	No	No	No	Yes	A-
New York	No	No	No	No	None	None	44%^[57]	No	No	No	No	A-
North Carolina	No	Yes	No	No	None	None	86%^[58]	Yes	Yes	No	No	D+
North Dakota	Yes	No	No	Yes	Yes	Yes	98%^[59]	Yes	Yes	No	No	F
Ohio	Yes	No	Yes	Yes	Yes	Yes	90%^[60]	Yes	No	No	No	F
Oklahoma	Yes	No	No	Yes	Yes	Yes	96%^[61]	Yes	No	No	No	F
Oregon	No	Yes	No	No	None	None	78%^[62]	No	No	No	Yes	A
Pennsylvania	Yes	No	No	No	Yes	Yes	78%^[63]	Yes	Yes	No	No	F
Rhode Island	Yes	No	No	Yes	No	Yes	80%^[64]	Yes	Yes	No	No	D+
South Carolina	No	Yes	No	Yes	Yes	Yes	91%^[65]	Yes	Yes	No	No	F
South Dakota	Yes	No	No*	Yes	None	None	98%^[66]	Yes	No	No	No	F
Tennessee	Yes	No	No	Yes	None	None	94%^[67]	Yes	Yes	No	Yes	D+
Texas	Yes	No	No	No	Yes	Yes	93%^[68]	Yes	Yes	No	No	D+
Utah	Yes	No	Yes	Yes	Yes	Yes	93%^[69]	Yes	No	No	No	F
Vermont	Yes	No	No	No	None	None	43%^[70]	No	No	No	Yes	A-
Virginia	No	Yes	Yes	Yes	Yes	Yes	86%^[71]	Yes	Yes	No	No	F
Washington	No	No	No	No	None	None	67%^[72]	No	No	Yes	No	A+
West Virginia	Yes	No	No	Yes	Yes	Yes	96%^[73]	Yes	No	No	Yes	B
Wisconsin	Yes	No	No	Yes	Yes	Yes	93%^[74]	Yes	Yes	No	No	D+
Wyoming	Yes	No	No	No	None	None	96%^[75]	Yes	Yes	No	No	D+