States Probe Limits of Abortion Policy

(Updated April 23,  2007)

The U.S. Supreme Court looms large in the history of abortion in the United States, but state capitols from the 1800s to now have been the crucibles of America’s evolving laws on a woman’s right to end a pregnancy.

The initial trendsetter was Massachusetts, which in the mid-1800s became the first state to outlaw abortion, an accepted practice in colonial times. Last year, South Dakota attempted to change history with a strict new ban on abortion geared to challenge the high court’s 1973 Roe v. Wade ruling, which established constitutional protections for women seeking an abortion.

While the makeup of the Supreme Court is the focus of much of today’s political calculations about the future of abortion in America, the role of states would become pivotal if the landmark decision were overturned. Any substantial weakening of Roe v. Wade would trigger an epic battle between “pro-life” and “pro-choice” forces that would be fought in state capitols – and perhaps also in Congress.

The high court’s April 18 decision – upholding a federal ban on a midterm procedure known as partial-birth abortion – may open a window for states to further limit abortions.

Stateline.org outlines the states’ pivotal involvement in this contentious social issue in a special “Backgrounder” that explains how states now deal with abortion , the history of state abortion laws , legal precedents , legal repercussions for states if Roe v. Wade were overturned and a rundown of current state restrictions on abortion .

How states now deal with abortion

South Dakota’s 2006 assault on Roe v. Wade marked a new twist after 33 years in which most states have concentrated on whittling away at the edges of the landmark ruling.

Since 1973, all states except Vermont have passed one or more abortion laws, and states continue to enact new abortion statutes every year. The barrage of laws has triggered repeated court challenges that have refined what states can and can’t do in trying to strike a balance between a woman’s constitutional right to end a pregnancy and religious and moral beliefs that abortion is wrong because it destroys fetal life.

Unable to ban abortion, states have pioneered dozens of tactics to constrict access to it — from requiring minors to seek a parent’s consent for an abortion to regulating the size of doorways in clinics that perform the procedure.

In contrast, 13 states help ensure a woman’s access to abortion by prohibiting most forms of protest at abortion clinics.

The South Dakota abortion ban – passed by a Republican-dominated Legislature and signed by GOP Gov. Mike Rounds on March 6, 2006 — capitalized on President Bush’s appointment of two conservative justices this term. Experts say the addition of Chief Justice John Roberts Jr. and Justice Samuel Alito Jr. leaves states potentially one judicial appointment away from gaining a freer hand to prohibit abortion.

Controversial even among abortion opponents, the South Dakota ban quickly ignited a petition drive to overturn it, and state voters responded by rejecting the strict ban on Nov. 6, 2006.

Although not a direct challene to Roe v. Wade, the U.S. Supreme Court heard arguments last year on two cases that could profoundly affect states’ ability to restrict abortion.

In both cases, lower courts struck down a federal law prohibiting so-called partial-birth abortions, the only nationwide ban on an abortion procedure. The outcome of those cases could affect states because justices may take another look at a key tenet of earlier holdings – that abortion must be allowed if deemed necessary to protect a woman’s health and well-being.

In a 7-to-2 decision, the justices in Roe v. Wade ensured that abortion would be legal in all 50 states. That ruling and subsequent decisions prevent states from outlawing abortion except for late in pregnancy when a fetus can live outside of the womb, and then only if the mother’s physical or mental health will not be adversely affected.

Still, getting an abortion in some states is difficult. Local laws, culture and politics create widely varying experiences for women seeking to end their pregnancies.

In South Dakota, for example, a woman may have to travel as far as 400 miles to the one abortion clinic in the state, which is picketed daily and run by a doctor who travels from Minnesota. South Dakota doctors refuse to perform the procedure because they say all other patients would boycott them in the sparsely populated, conservative state.

By contrast, in New York, nearly all women have access to a clinic in their local community, and a woman of any age can receive an abortion, no questions asked, without counseling or waiting.

In Massachusetts and Rhode Island, an underage woman seeking an abortion must get her parents’ permission, but in neighboring Connecticut, Vermont and Maine, she can end her pregnancy without her parents’ knowledge.

In both Texas and Mississippi, a woman must undergo counseling, wait 24 hours, and if she’s a minor, get her parents’ consent before receiving an abortion. But because of different state rules for abortion providers, a majority of women in Texas have local access to an abortion clinic, while women in Mississippi have only one clinic, which the state has threatened to shut down.

For a variety of reasons, the number of abortion providers varies widely from state to state, according to information compiled by the Guttmacher Institute , an abortion-rights  nonprofit research organization.

In Hawaii, every woman has an abortion provider in her county. With a population of about 1.2 million, the state is home to 51 providers. In contrast, Idaho has roughly the same population, but only seven providers.

In California, Connecticut, Massachusetts, New Jersey and New York, fewer than 10 percent of women live in counties that lack an abortion facility. But 75 percent or more of the women in Arkansas, Kentucky, Mississippi, South Dakota, West Virginia and Wyoming must travel to another county to receive an abortion.

If the Supreme Court were to return states’ powers to ban abortions, even greater differences likely would result. The existing mosaic of state abortion restrictions would become punctuated by states that outlaw the practice. Exactly how any given state would respond depends on who is governor, what party dominates the legislature and the status of public opinion on abortion.

Abortion policy analysts differ on the number of states they predict would ban the procedure if allowed. But a starting point is to look at existing state laws and court rulings that would come into play if states were free to ban abortion again. (See map.)

Four states – Illinois, Kentucky, Louisiana and South Dakota — have so-called trigger laws waiting on the books to make abortion illegal as soon as federal policy permits. Three more states – Arkansas, Missouri and North Dakota – have passed weaker laws declaring the state’s intention to criminalize abortion, but experts say those laws can’t be enforced.

In contrast, seven states have passed laws ensuring the legality of abortion whether Roe v. Wade stands or falls: California, Connecticut, Hawaii, Maine, Maryland, Nevada and Washington. California and nine others also have constitutional language interpreted by courts as protecting a woman’s right to end her pregnancy.

History of state abortion laws
In colonial times, abortion before “quickening” — the first perceptible fetal movement, usually around the fourth month of pregnancy — was legal. Early American medical literature includes frequent references to methods of abortion.
In the mid-1800s, Massachusetts became the first state to outlaw abortion for religious and moral reasons, making it a criminal offense to perform or attempt abortion during any point in a pregnancy. Over the next 50 years, almost all states followed suit, with some allowing the procedure when necessary to save a woman’s life.

In the early 1960s, five trendsetting states revised their laws to make abortion available in a variety of circumstances.  Mississippi legalized the procedure in cases of rape, and Alabama followed by Colorado, New Mexico and Massachusetts were the first to permit abortion when a woman’s physical or mental health was in jeopardy.
Gradually, other states made minimal changes to their 19 ^th century abortion laws, but most continued to allow the procedure only in life-threatening situations. As a result, hundreds of thousands of women resorted to illegal, self-induced – and sometimes deadly – abortions. 
The American Law Institute (ALI), a group of lawyers, scholars and jurists, began to call for abortion reform in 1962, urging states to permit abortion when a woman’s health was at risk, in cases of rape or incest, or if the fetus had a severe defect.
In 1967, California became the first state to adopt ALI’s model law, and by 1972, Arkansas, Colorado, Delaware, Florida, Georgia, Kansas, Maryland, New Mexico, North Carolina, Oregon, South Carolina and Virginia had followed.
In 1970, four states — Alaska, Hawaii, New York and Washington — adopted the most liberal laws in the country, allowing a woman to have an abortion whenever she and her doctor decided it was needed.
But the majority of states failed to loosen their laws, leaving women, including victims of rape and incest, few legal options.
It was just such a situation in Texas that led Norma McCorvey, identified at the time by the alias Jane Roe, and her doctor to appeal the state law all the way to the U.S. Supreme Court, resulting in the Roe v. Wade decision.
Legal precedents
In 1973, the Supreme Court ruled in Roe v. Wade that a 19th century Texas law, which only allowed abortion to save a woman’s life, violated a woman’s constitutional right to privacy. In one of the most controversial decisions in Supreme Court history, the justices overturned all state laws prohibiting abortion and said states could only ban the procedure late in pregnancy when the fetus can live outside the womb. Even then, the court ruled that states must make an exception when a doctor deems it necessary to protect a woman’s life or health.

In a second decision on the same day ( Doe v. Bolton ), the court outlined what doctors may consider in determining whether abortion is necessary to protect a woman’s health. According to the court, “all factors — physical, emotional, psychological, familial, and the woman’s age — relevant to the well-being of the patient” may be taken into account.

Anti-abortion activists argue that the health exception described in Doe v. Bolton is so broad that it has become the rule rather than the exception, allowing nearly all women who want a late-term abortion to have one. This fall, the high court will hear a case involving a federal ban on so-called partial-birth abortion methods that may address whether the health exception should be more narrowly defined.

After Roe v. Wade , states repeatedly tested its boundaries, passing laws that made it difficult for some women to have an abortion. Many state laws were struck down by federal courts, and some appeals made it to the high court.

For example, a Missouri law requiring a married woman to get her husband’s consent for an abortion was struck down in 1976. A Minnesota law requiring minors to notify both parents before obtaining an abortion was overturned in 1990, because it failed to provide exceptions when parents refuse to consent or cannot be contacted.

One of the biggest changes in the court’s interpretation of how far states can go to regulate abortion came in 1992 in Planned Parenthood v. Casey when the justices extended state’s ability to protect fetal life and maternal health throughout pregnancy, as long as the restrictions do not present an “undue burden” for women seeking abortions.

This ruling allowed states to require doctors to counsel women about the potential dangers of abortion, discuss alternatives such as adoption and impose waiting periods to give women time to reconsider their decision.

This year, the high court departed from previous decisions – for the first time approving an abortion restriction without an exception to protect a woman’s health. In its April 18, 2007, Gonzalez v. Carhart decision, the court upheld the federal Partial-Birth Abortion Ban Act of 2003, which prohibits a specific midterm procedure known as partial-birth abortion.   The ruling is expected to propel some states to further test the court by enacting a variety of other abortion limits without including a health exception.

Despite its conservative ruling in the partial-birth abortion case, a majority of the current Supreme Court remains likely to uphold Roe v. Wade . But if the court’s makeup were to change and the abortion ruling were toppled, it would ignite a political firestorm in all 50 state capitols and in Congress. Because states historically have taken the lead on abortion and other social issues as prescribed in the U.S. Constitution, legal analysts expect Congress to remain in the wings as states forge new policies.

Political analysts differ on how many states are likely to make abortion illegal if Roe v. Wade were overturned. Whether a state chooses to ban abortion will depend on what party controls the governor’s mansion and the legislature, and on the social leanings of its citizens, if and when federal restrictions are lifted.

But signs can be gleaned from states’ recent records on the issue. On Nov. 7, South Dakota voters will decide whether their Legislature reflected local political will when it passed the strictest abortion ban in the country this year.

On the anti-abortion side, four states already have in place so-called trigger laws, designed to make abortion illegal if federal policy permits. Three other states passed laws called statements of policy, establishing the illegality of abortion as an overriding state philosophy.

In addition, a few states have pre-1973 abortion bans still on the books, which legal experts say could be reinstated. Abortion bans passed by Louisiana and Utah in 1991 that were immediately struck down by federal courts also remain on the books in both states and could take effect if Roe v. Wade fell, legal experts say.

On the abortion-rights side, seven states have codified the principles of Roe v. Wade in state law, and high courts in nine other states have interpreted the state constitution as independently ensuring a woman’s right to an abortion.

Here is a rundown of state laws signaling intent on abortion:

Trigger laws and statements of policy:  Trigger laws ban abortion but avoid a federal lawsuit by delaying the effective date until the Supreme Court allows states to make abortion illegal again.

This year, Mississippi Gov. Haley Barbour (R) signed a trigger law that would ban abortions except in cases of rape or threat to the woman’s life.

Illinois was the first to pass a trigger law in 1975. Louisiana followed in 1981 and Kentucky in 1982. South Dakota passed a trigger law in 2005 and, in 2006 Louisiana updated and added teeth to its 1981 trigger law .

Legal experts differ on whether trigger laws would automatically take effect if Roe v. Wade were overturned. Some say the laws-in-waiting would be subject to approval by the incumbent governor and attorney general, if not lawmakers.

Three states, Arkansas (1988), Missouri (1974 and 1986) and North Dakota (1975), passed similar but weaker laws, called statements of policy, that establish their intention to outlaw abortion if federal prohibitions are lifted. Experts agree these laws would have no legal effect if Roe v. Wade were overturned.

Pre-1973 abortion bans: Statute books in 13 states still feature abortion bans that were passed before Roe v. Wade , though all except those in Alabama and Massachusetts have been enjoined by courts.

In theory, if Roe v Wade were overturned and state leaders wanted an invalidated abortion ban to take effect, a court injunction could be lifted. Similarly, if state leaders did not want a dormant abortion ban to take effect, the law could be voided, legal analysts say.

In some states, the existence of pre-1973 bans may be merely a housekeeping error. For example, Vermont — among the most liberal states in the union and the only state that has failed to pass a single anti-abortion law since Roe v Wade – still has a pre-1973 abortion ban on the books. Likewise, Massachusetts, with relatively liberal abortion laws and a Democratic Legislature, has retained the decades-old ban.

Alabama, Arizona, Arkansas, Colorado, Delaware, Michigan, Mississippi, New Mexico, Oklahoma, West Virginia and Wisconsin also have bans on the books that predate Roe v. Wade .

Laws and constitutions protecting a woman’s right to an abortion : In April, Hawaii joined six other states that have passed laws ensuring a woman’s right to abortion, whether Roe v. Wade stands or falls.

Nevada was the first to enact such a law in 1990, followed by Maryland (1991), Maine (1992), Washington (1992), Connecticut (1997) and California (2002).

In at least 10 states, the highest court has interpreted the state constitution as protecting a woman’s right to abortion. Those states are Alaska, California, Florida, Massachusetts, Minnesota, Montana, New Jersey, New Mexico, Tennessee and West Virginia, according to a pro-abortion research group, the Center for Reproductive Rights. 

Current state restrictions on abortion

Since 1973, state lawmakers have enacted hundreds of statutes designed to limit access to abortion. With the exception of Vermont, every state has enacted at least one restriction on abortion, regulating everything from whether abortions qualify for Medicaid, to where and by whom the procedure can be performed, to what doctors must tell women before they receive the procedure.

This roster of state laws grew over the years as a small number of state innovators passed new abortion restrictions, and other states followed, provided the model laws weren’t struck down by courts.

New in the past three years are laws that require doctors to inform women that the fetus may experience pain and to offer anesthesia for the fetus. Another new crop of laws calls on abortion providers to either offer women the chance or require women to view a sonogram picture of the fetus before undergoing the procedure.

In 2005, state lawmakers, driven by continuing passions over abortion, considered more than 500 bills aimed at limiting access to the procedure. This year, about 300 abortion restrictions were considered.

Following is a rundown of state laws regulating abortion:

Parental consent and notification :Among the most contentious restrictions, because they affect a large and vulnerable population of young women seeking abortions, are laws aimed at involving parents in a minor’s abortion decision. They have been proposed in nearly every state since the 1970s. 

In 1976, the U.S. Supreme Court ruled that state laws requiring parental involvement must ensure that a woman’s health is protected by including exemptions in medical emergencies and by giving girls the option of asking a judge to waive the requirement, a process called judicial bypass.

In 2006, the high court upheld that decision, ruling in Ayotte v. Planned Parenthood of Northern New Englandthat aNew Hampshire parental notification law must allow doctors to quickly perform an abortion in medical emergencies without notifying parents.In March 2007, the New Hampshire House voted to repeal the law; the Senate is expected to approve the repeal as well, and Gov. John Lynch (D) has said he would sign the bill.

States have passed two types of parental involvement laws. Parental consent laws require one or both parents to approve of the procedure in writing; parental notification laws simply require doctors to notify parents before performing an abortion on a minor. Most laws require 48 hours notice and set the age of a minor at 18.

In November 2006, voters in California and Oregon rejected proposals to join 35 other states in preventing teenage girls from getting abortions without a parent’s knowledge. Oregon voters had rejected a similar proposal in 1990 and California voters nixed a parental involvement law in 2005.

Florida voters approved a 2004 ballot measure requiring parental consent, and in 1998 Colorado voters approved a parental notification measure. 

Connecticut, Hawaii, New York, Oregon, Vermont and Washington are the only states with no laws requiring parental involvement in a minor’s abortion decision.

Nine states – Alaska, California, Idaho, Illinois, Montana, Nevada, New Hampshire, New Jersey and New Mexico – have passed parental involvement statutes that were immediately rejected by courts for violating privacy and equal-protection clauses in their state constitutions.

In an unusual case, the Illinois Supreme Court in September issued judicial bypass rules for a 1995 parental notice law that was enjoined by a court for lacking those rules. State Attorney General Lisa Madigan is reviewing the case to determine whether to ask the lower state court to resurrect the 11-year-old statute. Illinois is the only state in the Midwest that does not enforce a parental involvement law.
                                                      
Nationwide, 22 states enforce parental consent laws requiring at least one parent to sign a statement approving the procedure. Of the 22, only Mississippi and North Dakota require both parents to approve the procedure. Twelve other states enforce parental notification laws. Utah enforces both consent and notification laws.

Maine, North Carolina, South Carolina and Wisconsin allow girls alternatives to parental consent such as the consent of a grandparent or sibling, a doctor-authorized waiver, or state-approved counseling. Colorado, Delaware, Iowa and West Virginia offer girls similar alternatives to parental notice requirements.

Consultation, including fetal pain and ultrasound : Twenty-eight states require doctors to provide some form of counseling about the risks of abortion and the availability of funding and services for women who carry their pregnancies to term.

Of the 28 states, 26 require counseling on adoption and other alternatives to abortion; three – Arkansas, Nevada and Wisconsin – require doctors to warn women of serious psychological effects from abortion; four – Arkansas, Georgia, Illinois and Minnesota – require explanations of fetal pain and offers of painkillers for the fetus; three – Minnesota, Mississippi and Texas – call on doctors to warn women that abortion can result in increased breast cancer risk, and seven — Alabama, Arkansas, Indiana, Michigan, Oklahoma, Utah and Wisconsin — offer or require a sonogram before an abortion.

Waiting periods:  Designed to give women time to reconsider their choice of abortion, waiting periods are required in 24 states.  

Of the 24, 22 states require a 24-hour waiting period, Indiana requires an 18-hour wait, and South Carolina requires only one hour. Four other states have waiting laws that have been enjoined by courts. 

Physician and hospital requirements : Thirty-nine states require abortions to be performed by a licensed physician, 20 states require abortions to be performed in a hospital after a certain point in the pregnancy, and 18 require a second physician at certain points in a pregnancy.

All of these regulations, aimed at protecting the health of the mother, add to the cost and affect the availability of abortion.

In February, Ohio joined the list of states requiring licensed physicians to perform abortions. Gov. Bob Taft (R) signed a measure prohibiting physician assistants from performing the procedure or prescribing a drug that would induce an abortion.

In Utah, abortions must be performed in a hospital after the first 90 days of pregnancy. Massachusetts, North Dakota and Wisconsin require hospitalization after 12 weeks, New Jersey and Rhode Island after 14 weeks, North Carolina after 20 weeks, Nevada after 24 weeks, and all others after the second trimester of pregnancy or post-viability.

North Dakota requires a second physician after 12 weeks of pregnancy, Florida and New York after 24 weeks, and all others after the third trimester or post-viability.

Public funding : In 1977, Congress passed the Hyde Amendment, limiting federal funding for abortions through Medicaid and other Health and Human Services programs to cases involving rape or incest or when a woman’s life is at risk.

All states except South Dakota meet the minimum federal funding standards under the federal-state Medicaid program for low-income women. South Dakota is stricter about which abortions it will pay for, limiting payments to abortions necessary to save the life of the mother.

Hawaii, Maryland, New York and Washington voluntarily help low-income women pay for abortions. Thirteen states are under court orders to fund all or most abortions.

Private insurance coverage: Less controversial than public funding restrictions, but representing a significant barrier to abortion, four states — Idaho, Kentucky, Missouri and North Dakota — restrict private insurance coverage to cases involving a risk to the woman’s life.

Restrictions on insurance coverage for public employees are more common. Colorado and Kentucky prohibit any insurance coverage of abortion for public employees. Idaho, Missouri and North Dakota limit coverage to cases in which a woman’s life is in danger, and six others — Massachusetts, Mississippi, Ohio, Pennsylvania, Rhode Island and Virginia — limit coverage to cases involving life or health risks, rape, incest or fetal abnormalities.

In April, Arizona Gov. Janet Napolitano (D) vetoed a bill that would have prohibited public employee insurance from covering abortion except in cases involving life or health risks to the mother.

Refusal to provide abortion : All states except Alaska, New Hampshire, Vermont and West Virginia allow doctors to refuse to perform abortions. And all states except Alaska, New Hampshire, Vermont, West Virginia, Connecticut, New York, and Rhode Island allow private and/or religious medical institutions to refrain from offering abortion services.

Partial-birth restrictions: Since the mid 1990s, at least 26 states have enacted laws prohibiting so-called partial-birth abortion procedures, although most were struck down by the Supreme Court in 2000. The justices ruled that state laws describing partial-birth abortion, a term not used by the medical community, are so broad that they include many common abortion techniques used as early as 12 weeks of pregnancy. The court also said that partial-birth bans are not constitutional unless they include an exception to protect a woman’s health. Of the 26, four states include health exceptions.

Late-term and post-viability restrictions : In Roe v. Wade and subsequent decisions, the high court allowed states to prohibit abortions after the fetus is able to live outside of the womb, with the following exceptions: States may not prohibit abortions necessary to preserve a woman’s life or physical or mental health, and states must allow the attending physician to determine when a woman’s health is at risk and when the fetus is viable, without requiring a second doctor’s opinion.

Despite the court’s stipulations, some state bans on late-term abortions violate those requirements, though not all have been enjoined by courts.

In all, 36 states prohibit abortions after a certain point in pregnancy. Of those, 23 ban abortions at viability; five ban it in the third trimester; and eight ban the procedure after 24 weeks.

In conflict with Roe v. Wade , four of the 36 states permit late-term abortions only to save a woman’s life, and four use a narrower health definition. Nine states require a second physician to treat the fetus if it is born alive, and 10 states require a second physician to certify that the abortion is medically necessary.

Targeted regulation of abortion providers (TRAP) : Thirty-four states have laws subjecting abortion providers to reporting and licensing regulations and clinics to building codes that are not applied to other medical professionals or facilities. Some states have multiple laws restricting doctors and facilities, and many conduct regular inspections. This year 21 states considered 61 bills that would subject abortion providers to additional restrictions, according to NARAL-Pro Choice America. Georgia, Indiana, Mississippi and Missouri, which already have TRAP laws, enacted additional restrictions this year.

Contact Christine Vestal at [email protected].