Abortion in the United States was made legal by action of the Supreme Court, although there are some distinctions that vary from jurisdiction to jurisdiction. The most common distinction is “life after viability” where states have tried to legislate the latest point in a pregnancy that a woman may receive an abortion, if there is a chance that the fetus will be born healthy.
The ability of the states to set some laws on abortion availability, such mandatory waiting periods and counseling has created a unique set of circumstances for every state in the US.
What are alternatives to abortion?
Abortion providers and other organizations offer alternatives to abortion such as adoption assistance for mothers that cannot take care of the child and counseling to develop a support network for the mother, in hopes that she may reconsider and keep the child. Some states may make counseling either over the phone or in-person mandatory.
What are legal definitions in abortion laws?
These definitions may be subject to interpretation:
Viability – this is the state at where a fetus can live outside of its mother, with or without artificial life support. The initial Row v Wade ruling placed viability at 24 – 28 weeks or at the end of the “second trimester.” Most scientists agree that the range of viability is between 21 and 27 weeks with no fetus guaranteed survival outside the womb. Some states may create a “presumption” of viability at a mark that they set.
Late term abortions – this generally refers to abortions that happen after the fetus is viable. This was made illegal by an act of Congress and later affirmed by the Supreme Court in 2007.
Trimester – this is the division of the gestational period into three parts with the first trimester between 0 – 12 weeks, second between 13 – 28 weeks and third 29 – 40 weeks. The vast majority of abortions take place in the first trimester.
Federal issues over abortion
Abortion has been controversial since the Supreme Court ruling in Roe v. Wade that legalized abortion in all 50 states. Prior to that, very few states had legalized it with no restrictions and a significant number did not allow abortion under any circumstances.
Roe vs. Wade established a mother’s right to terminate her pregnancy up until the point of “viability”
The Unborn Victims of Violence Act, signed into law by President George Bush in 2004, characterizes the murder of a pregnant woman as the murder of two persons, with specific protections for mothers and abortion providers. Still abortion opponents claim this as federal recognition of a fetus as a “person” and abortion proponents claiming that the law is in conflict with the Roe v Wade ruling and a possible first step to illegalizing abortion.
The Partial-Birth Abortion Ban Act of 2003 bans late-term abortions and criminalizes the procedure for both the mother and the doctor. This act became law in 2007 after the US Supreme Court rules that it did not violate the provisions and rights set in the Roe v Wade Decision.
The rights of states to set limits on abortion was challenged in the 1992 case Planned Parenthood v Casey with the Supreme Court accepting all but one restriction (spousal notification) for women seeking abortions.
State issues over abortion
As states may set some restrictions of abortions, laws vary from state to state. These are some common distinctions and issues on a state level.
Informed consent – A state may be able to mandate that a women by provided with information about the health risks of abortion before receiving one. This is to dissuade women that do not understand the perceived magnitude of their decision.
Spousal notification – this provision required women to have the permission of their husbands before getting an abortion. The Supreme Court struck this provision down during a legal challenge of Pennsylvania’s abortion law.
Parental consent – minors seeking an abortion may be mandated to have parental consent to have an abortion. Less stringent rules may require that the minor only inform one or both parents (depending on the state) beforehand. Only six states specifically do not require parental notification and consent.
Waiting period – some states may require a woman to wait a set amount of time before receiving an abortion. This creates an opening for counseling and for the woman to reconsider her decision.
Abortion counseling – a few states (Louisiana, Mississippi, Indiana, Utah and Wisconsin) require an abortion seeker to have an in-person counseling session. Other states require counseling but allow it to be done over the phone.
In the event that the Row v Wade decision is ever overturned, some states have “trigger laws” that would either ban or preserve abortion rights in that state as a result.
A potential constitutional challenge to Roe v. Wade, South Dakota’s Women’s Health and Human Life Protection Act was repealed by voters in November 2006. Nonetheless, a constitutional challenge to the Supreme Court’s ruling is likely whenever the Supreme Court is perceived to have shifted to a conservative point of view.
Timeline of Abortion Cases and Acts
1971 - Roe v. Wade legalizes abortion in the United States
1971 - Doe v Balton strikes down Georgia law requiring three doctors to approve an abortion.
1976 - The Hyde amendment bans the use of federal funds, such as Medicaid for abortion procedures.
1981 - Bellotti vs. Baird affirms the right of minors to have an abortion without parental consent
1989 - Washington state law declaring life beings at conception found unconstitutional
1992 - Supreme Court reaffirms that states may not bad abortion but may place some restrictions such as waiting periods and consent.
2003 - Partial-Birth Abortion Ban Act passes Congress
2006 - South Dakota Human Life Protection Act was repealed by voters ending potential constitutional challenge.
2007 - Partial Birth Abortion Act affirmed by Supreme Court