Wednesday, June 28, 2006
States probe limits of abortion policy
By Christine Vestal, Stateline.org Staff Writer
Thursday, June 22, 2006
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, a practice legal in colonial times. This year, South Dakota is attempting 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 is equally important. Any ruling overturning or weakening Roe v. Wade would trigger an epic battle between “pro-life” and “pro-choice” forces that likely would be fought in state capitols – and perhaps also in Congress.
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 direct assault on Roe v. Wade marks 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 the Republican-dominated Legislature and signed by GOP Gov. Mike Rounds on March 6 -- capitalizes 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 will be asked to reject or affirm it on the Nov. 7 ballot.
Similar bans were introduced in Alabama, Georgia, Indiana, Kentucky, Louisiana, Missouri, Mississippi, Ohio, Rhode Island, South Carolina and Tennessee, but none have become law.
While it’s unclear whether South Dakota’s abortion ban will ever make it to the Supreme Court, the justices already have agreed to take up two other abortions cases in their next term, which begins in October. 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 is 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.
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 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, while 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, a pro-choice 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. 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 19th 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.
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 is too broad.
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.
But the biggest change 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 a 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 decision 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.
If Roe v. Wade were overturned
A stunning reversal of the Supreme Court’s abortion ruling 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 greatly depend on what party controls the governor’s mansion and the legislature, and on the social leanings of the residents, if and when federal bans are lifted.
But signs can be gleaned from states’ recent records on the issue. In November, South Dakota voters will confirm whether their Legislature reflected local political will when it passed the strictest abortion ban in the country this year.
On the pro-life side, four states already have in place so-called trigger laws, designed to make abortion illegal if federal policy permits. Three others 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 pro-choice 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.
The 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. 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 this year Louisiana updated and added teeth to its previous 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, their highest courts have 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 passed at least one law restricting 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. This year, Oklahoma passed the first law requiring doctors to show women a sonogram picture of the fetus before the procedure.
In 2005, driven by abortion’s continuing political clout and passions, state lawmakers considered more than 500 bills aimed at limiting access to abortion. This year, about 300 abortion restrictions were considered
Following is a rundown of state laws regulating abortion:
Parental Consent: Among the most contentious restrictions, because it affects a large and vulnerable population of young women seeking abortions, parental consent laws have been proposed in nearly every state since the 1980s. In 1990, the Supreme Court ruled that state consent laws must allow minors the option of seeking a “judicial bypass,” in which a court can rule that a minor is mature enough to make her own decisions and that an abortion is in her best interest.
At least 35 states currently require some form of parental notification or consent before a minor can receive an abortion. Courts have struck down consent and notification laws in nine other states, because the statutes did not allow exceptions to guard the health of the teenager.
This year, Supreme Court justices ordered a lower court to amend a New Hampshire parental consent law to include an emergency health exception. The law prevents doctors from performing an abortion for a woman under the age of 18 until 48 hours after a parent is notified. A federal judge in the case, Ayotte v. Planned Parenthood, had rejected the law because it did not include an emergency health exception to protect a teenager when her health could be harmed by the delay involved in notifying her parents.
When California voters – typically liberal on abortion issues – were in January to require doctors to notify a teenager’s parents before performing an abortion, they narrowly defeated the measure.
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 a risk to the woman’s life, rape or incest.
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 fund all or most abortions under court orders.
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 in 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 late-term bans violate those requirements, though not all of them have been enjoined by courts.
In all, 36 states prohibit abortions after a certain point in pregnancy. Of those, 23 states 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 attend 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.