Gestational Age & Viability
States have attempted to place limits based on abortion based on the gestational age, or "viability," of fetuses. The strictest types of these restrictions are referred to as "personhood" laws, which purport to extend full constitutional rights to fetuses, typically from the moment of conception. Such laws have the ultimate effect of banning abortion by extending the constitutional right to life to all fetuses in utero. As of January 2013, no US state had officially adopted personhood legislation. The legislatures of both Virginia and Oklahoma passed bills in 2012 defining life as beginning at the moment of conception; neither of these bills were enacted into law. Additionally, voters in both Mississippi and Colorado rejected ballot initiatives that would have added a personhood amendment to their state constitutions. In April 2013, the Kansas legislature passed a bill [PDF] defining life as beginning at fertilization, which was subsequently signed into law.
Similarly, the Ohio House of Representatives passed legislation in June 2011 that would prohibit abortions after a fetal heartbeat is detectable, which can occur as early as six weeks after conception. In March 2013, the legislature of North Dakota passed two bills, HB 1305 [PDF] and HB 1456 [PDF], which placed strict limitations on abortion, including banning non-emergency abortions after the fetal heartbeat is detected. Shortly thereafter, the North Dakota House of Representatives approved a "personhood" bill banning abortion by defining life as beginning at conception. North Dakota Governor Jack Dalrymple subsequently signed three of the recently passed bills into law; the bills banned abortion for the purpose of gender selection or genetic abnormalities of a fetus, banned abortion in cases where a fetal heartbeat is detected and required abortion providers within the state to have admitting privileges at a nearby hospital. The Center for Reproductive Rights (CRR) challenged the restrictions on behalf of North Dakota's sole abortion provider.
Another recent legislative scheme to limit abortions has banned abortion approximately 20 weeks after conception, based on disputed medical research that suggests that fetuses begin to experience pain after the twentieth week of development. Nebraska was the first state to enact such a law in April 2010. Since then, states including Alabama, Arizona, Idaho, Kansas, North Dakota, Ohio and Oklahoma have adopted laws that proscribe abortions beyond the 20 week mark. In November 2012, Arizona's law became the subject of a legal challenge before the US Court of Appeals for the Ninth Circuit, which issued an opinion [PDF] striking down the law in May 2013. Overriding vetoes from Governor Mike Beebe, the Arkansas legislature passed bills in February 2013 and March 2013 outlawing abortions after 20 and 12 weeks of gestation, respectively.
Idaho's "fetal pain" statute was overturned in the US District Court for the District of Idaho on the basis that it placed an undue burden on a woman's right to an abortion and was unconstitutionally vague with regard to its criminal sanctions. In April 2013, the American Civil Liberties Union (ACLU) and the CRR challenged Arkansas's 12 week ban as a violation of Roe v. Wade, and in May 2013, a judge for the US District Court for the Eastern District of Arkansas temporarily blocked enforcement of the 12 week ban.
Several other state legislatures are still mired in debate over the issue of gestational age limits on abortion. In June 2011, the Iowa House of Representatives passed a bill that would prohibit abortions after 18 weeks. If ultimately adopted, Iowa will have the most restrictive gestational age restriction in the US. Arizona, Indiana and New Hampshire have all passed 20 week legislation through one of their two legislative chambers. Georgia began debating a similar law in March 2012 that limits abortions after five months instead of 20 weeks. In December 2012, the ACLU filed a lawsuit on behalf of three obstetrician-gynecologists to enjoin the law from taking effect. A judge for the Superior Court of Fulton County granted a temporary injunction [PDF] on December 20, 2012.
There has also been significant political pushback against gestational age limits on abortion. Gubernatorial vetoes have been used to halt the passage of such laws on multiple occasions. Minnesota Governor Mark Dayton vetoed legislation that would have prohibited abortion after 20 weeks of gestation in May 2011, and Missouri Governor Jay Nixon refused to sign similar legislation in July 2011.
However, almost every US state has enshrined strong prohibitions on abortion once the fetus reaches viability, which is based on its ability to survive outside of the womb. The exact date of viability in gestational development is not concrete, but is typically approximated between the twenty-second to twenty-fourth weeks of pregnancy. Twenty states currently proscribe abortion after the point of fetal viability, and five states prohibit abortions during the third trimester of pregnancy. Although such restrictions have been struck down on occasion, such decisions have typically done so because there were no health-related exceptions contained in the language, or because the law contained an unacceptably narrow health exception. Viability restrictions have also been struck down when they do not permit a physician to determine viability on a case-by-case basis, but, rather, enforce a rigid construction based on gestational age.
Maternal Age & Minors
Many states have limited the access of minors to abortion through a variety of legislative schemes. The most common approach has been to require minors to obtain some form of parental consent, or parental notification, before they are allowed to obtain an abortion. Thirty-nine states currently limit the ability of minors to obtain abortions by requiring parental notification or consent prior to the procedure. Twenty-one states explicitly require parental consent only, and 11 states require parental notification only, with only one requiring the notification of both parents. Five states require both consent and notification. Of these states, 36 have adopted an alternative judicial procedure by which the minor can bypass parental consent or notification.
There have also been efforts in multiple state legislatures to create stricter guidelines related to parental consent laws. Kansas Governor Sam Brownback signed legislation in April 2011 that requires unemancipated minors to obtain notarized parental signatures prior to an abortion. States have also made attempts to decrease access to judicial bypass provisions. Florida Governor Rick Scott approved legislation in June 2011 that revised the state's parental notice law. It changed the definition of "constructive notice" under the law and increased the time that is allowed to lapse before a court had to rule on a minor's petition for judicial bypass. Ohio likewise tightened their parental consent laws in November 2011 permitting judicial bypass only when the judge is presented with "clear and convincing evidence" that the abortion is in the best interest of the requesting woman. In November 2012, Montana voters approved by referendum a parental notification law that requires abortion facilities and doctors to inform the legal guardians of minors under 16 years of age 48 hours before a planned abortion procedure.
Not all states have been supportive of parental consent restrictions. Oregon voters rejected parental notification legislation in November 2006 and California similarly rejected Proposition 4 in November 2008, which would have amended the California Constitution to require physicians to notify the legal guardian of any unemancipated minor seeking an abortion. Some states have also sought to repeal existing parental notification legislation, such as New Hampshire in June 2007.
However, courts have also been divided over the issue, sometimes even within individual states. The Alaska Supreme Court struck down a law requiring parental consent in November 2007, but the Alaska Superior Court subsequently refused to block a law requiring parental notification for women under the age of 18 in December 2010.
JURIST Guest Columnist Caitlin Borgmann has argued that parental notification laws impose traumatic hurdles, and sometimes grave danger, on minors who lack supportive guardians:
"Parents understandably want to be involved in their minor children's important life decisions, but this desire has not translated to parental involvement requirements for other sensitive medical decisions that minors make. Most states recognize that mandating parental involvement for sensitive medical treatment will have the hazardous drawback of deterring many minors from seeking care at all. As the Guttmacher Institute reports, 'The legal ability of minors to consent to a range of sensitive health care services including sexual and reproductive health care, mental health services and alcohol and drug abuse treatment has expanded dramatically over the past 30 years.' Minors in most states can consent to services such as contraception, prenatal care, and treatment for sexually transmitted infection. In many states, minors can even relinquish their children for adoption and consent to medical care for their children. Parental involvement laws for abortion stand out as the glaring antithesis to this trend."
Restrictions on Types of Procedures
States have also sought to restrict abortion by limiting the types of procedures which doctors are legally permitted to perform. Several states have enacted legislative measures that proscribe "chemical abortion," such as those induced by medication, in favor of surgical procedures. Still others have reduced the number of surgical options available to doctors similar to the federal ban on D&X abortions.
The courts have remained skeptical of legislative restrictions on medical treatment options, although they have been hesitant to strike them down outright. North Dakota has been the locus of recent intense debate over non-surgical abortions. A North Dakota law effectively bans non-surgical abortions in the state. The law restricts the use of mifepristone, misoprostol and other drugs approved by the FDA to induce first-trimester abortions. The law was challenged by the CRR in July 2011 on the basis that it would effectively prevent any woman from seeking a non-surgical abortion in North Dakota and a state judge subsequently issued a temporary injunction against the ban. An Oklahoma state court issued a similar temporary injunction in October 2011 against a law that would have restricted how doctors could use abortion-inducing drugs to treat their patients. In April 2013, a state judge announced that he would strike down the law as an "insurmountable barrier" to accessing the procedure safely.
Because of the significant differences between these medical limitation laws, they have typically been challenged on a piecemeal basis. However, there have been concerted efforts amongst the states to specifically limit the use of the FDA-approved medication RU-486, often referred to as the "abortion pill." There has been disagreement in the district courts over the legality of such restrictions. A 1972 Idaho law prohibiting self-abortion was the basis for a class-action lawsuit filed in August 2011 after it was used to charge an Idaho woman, Jennie McCormack, for using RU-486 to terminate her pregnancy. The US District Court for the District of Idaho issued a temporary order in McCormack v. Heideman that prevented the state from enforcing the 1972 law criminalizing the use of RU-486. However, in May 2011 the US District Court for the Southern District of Ohio upheld a state statute that limited the use of RU-486 and overturned an earlier injunction from September 2006. The US Court of Appeals for the Sixth Circuit upheld the district court's ruling in October 2012.
Some states have also banned the practice of D&X abortions, modeling their legislation on an existing federal ban. Louisiana banned D&X abortions in June 2007 and the Missouri House of Representatives passed a law in March 2011 that would prohibit the use of D&X abortions on viable fetuses. In July 2012, the New Hampshire legislature passed a bill that bans intact D&X abortions, overriding Governor John Lynch's veto.
The courts have also become involved in the passage of state prohibitions on D&X abortions, with varied legal results. In June 2007, the US Court of Appeals for the Sixth Circuit unanimously ruled that Michigan's D&X abortion ban was unconstitutional because it did not ban the particular medical procedure, but rather protected the legal status for a partially delivered fetus. However, the US Court of Appeals for the Fourth Circuit upheld a Virginia law banning "partial birth" abortions in June 2009, reversing previous rulings that struck the law down as unconstitutional.
Another way in which states limit access to abortions is by creating stricter requirements for clinic compliance, such as requiring that clinics have facilities and staff similar to hospitals. These restrictions, which can regulate abortion clinics to the point of forcing them to close, are known as Targeted Regulation of Abortion Providers, or TRAP regulations. On July 1, 2012, a judge for the US District Court for the Southern District of Mississippi issued a temporary injunction blocking a controversial Mississippi abortion law that required all physicians performing abortions at a clinic to be licensed obstetricians and have admitting privileges for a nearby hospital. The district court extended the injunction in order to give providers at Mississippi's sole abortion clinic more time to seek hospital admitting privileges, then subsequently allowed the law to go into effect while ordering the state not to prosecute the clinic's providers while they attempted to comply. Providers at the clinic had applied for and been denied admitting privileges at all seven local hospitals that would have allowed them to comply with the law.
In April 2013, legislators in Alabama passed and Governor Robert Bentley signed a similar bill [PDF], requiring all abortion providers in the state to have admitting privileges at a nearby hospital as well as comply with additional facilities requirements such as minimum corridor widths.
Rather than restricting abortion through chronological or procedural restrictions, some states have opted to enact measures that require that women must provide sufficient "informed consent" prior to obtaining an abortion. The concept of informed consent is premised on the belief that medical patients must: (1) manifest the capacity to make decisions about their medical care; (2) demonstrate that their participation in their treatment is completely voluntary; (3) and ensure that patients are providing medical practitioners with adequate information. Most state abortion restrictions fall into this third category, with states taking different steps towards establishing what information is considered adequate and appropriate.
Thirty states have instated laws that institute waiting periods before women may obtain abortions. However, some of these "waiting period laws" have also been interdicted by judicial injunctions from state and federal courts. In November 2011, the Indiana Supreme Court upheld a law requiring a woman to undergo counseling and wait at least 18 hours before obtaining an abortion. South Dakota passed a law instituting a 72-hour waiting period on all abortions in March 2011, but the US District Court for the District of South Dakota issued an injunction prohibiting enforcement of that law in July 2011. The injunction was upheld by a judge for the US District Court for the District of South Dakota in July 2012. The courts are hardly the only institutions involved in the continuing debate over informed consent. In July 2011, both the North Carolina Senate and House of Representatives voted to override a veto from Governor Beverly Perdue on a law requiring a 24-hour waiting period. Conversely, Utah Governor Gary Herbert signed a bill into law in March 2012 that closely mirrors the South Dakota law.
Many states have also adopted controversial laws that require women to undergo ultrasounds prior to receiving an abortion pursuant to informed consent, sparking intense controversy in recent years. Texas Governor Rick Perry signed legislation in May 2011 that requires doctors to perform an ultrasound, and show the images to the woman, at least 24 hours prior to an abortion procedure. Doctors failing to conform with the law would be stripped of their medical licenses. The law was challenged, but upheld by the US Court of Appeals for the Fifth Circuit in January 2012. Florida Governor Rick Scott signed a similar law in June 2011 and ultrasound legislation was considered in both the Arizona and Idaho legislatures. The Wisconsin State Assembly passed a bill in June 2013 requiring pre-abortion ultrasounds.
However, other ultrasound laws similar in scope to those discussed above may not survive judicial review. An Oklahoma trial court issued an injunction in July 2010 that blocked the enforcement of a bill [PDF] requiring women seeking abortions to undergo ultrasounds. The trial court found the law unconstitutional and unenforceable under the Oklahoma Constitution. Although Oklahoma Attorney General Scott Pruitt appealed, arguing that the district court's ruling prevents women from obtaining important medical information that ultrasounds provide, in December 2012 the Oklahoma Supreme Court also struck down the law. In October 2011, the US District Court for the Middle District of North Carolina issued a similar injunction partially blocking enforcement of a state law requiring physicians to perform ultrasounds and describe potential issues associated with abortion prior to performing a procedure. In March 2013, Oklahoma Attorney General E. Scott Pruitt filed a petition asking the US Supreme Court to review the Oklahoma Supreme Court's decision to strike down that state's law.
JURIST Guest Columnist Stephanie Toti argues that the injunction against the previously discussed Oklahoma law helps protect women's access to medical care:
"Had the Oklahoma law been allowed to take effect, it would have threatened women's continued access to abortion in a state where onerous legal burdens and intimidation by anti-choice extremists have already whittled the number of licensed abortion providers down to three. Moreover, it would have demeaned women, embodying a presumption that women are not capable of making informed medical decisions independently. The law would have enabled the State, and certain obstetricians, to control the information that a woman receives about her pregnancy - forcing some women to receive information that they consider irrelevant and preventing others from receiving information that they would consider crucial."