Abortion in the United States is legal, subject to balancing tests tying state regulation of abortion to the three trimesters of pregnancy, via the landmark 1973 case of Roe v. Wade, the first abortion case to be taken to the Supreme Court. Every state has at least one abortion clinic. However, individual states can regulate and limit the use of abortion or create “trigger laws”, which would make abortion illegal within the first and second trimesters if Roe were overturned by the Supreme Court of the United States. Eight states—Alabama, Arizona, Arkansas, Michigan, Mississippi, Oklahoma, West Virginia and Wisconsin—still have unenforced pre-Roe abortion bans in their laws, which could be enforced if Roe were overturned. In accordance with the US Supreme Court case of Planned Parenthood v. Casey (1992), states cannot place legal restrictions posing an undue burden for “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.
Current legal status nationwide
The current judicial interpretation of the US Constitution regarding abortion in the United States, following the Supreme Court of the United States 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. As of December 2020, Roe v. Wade has been brought back into question in the supreme court. Currently, legislatures in 22 states state they would move to ban or further restrict abortion laws throughout the U.S.
The key deliberated article of the US 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.
The official report of the US Senate Judiciary Committee, issued in 1983 after extensive hearings on the Human Life Amendment (proposed by Senators Orrin Hatch and Thomas Eagleton), stated:
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.
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, approx. 196 days) 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. The youngest child thought to have survived a premature birth in the United States was Amillia Taylor (born on October 24, 2006, in Miami, Florida, at 21 weeks and 6 days gestational age, approx. 153 days vs. possibly expected gestational period of 40 weeks, approx. 280 days).
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 US states are far more restrictive. In most European countries abortion-on-demand is allowed only during the first trimester, with abortions during later stages of pregnancy is allowed only for specific reasons (e.g. physical or mental health reasons, risk of birth defects, if the woman was raped etc.). The reasons that can be invoked by a woman seeking an abortion after the first trimester vary by country, for instance, some countries, such as Denmark, provide a wide range of reasons, including social and economic ones.
There are no laws or restrictions regulating abortion in Canada, while the law on abortion in Australia varies by state/territory. In many countries, the right to abortion has been legalized by respective parliaments, while in the US 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 US counties having no abortion provider. 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.
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 US House of Representatives and US 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.