In two landmark 1973 abortion cases, Roe v. Wade and Doe v. Bolton, the Supreme Court held that states could restrict or ban abortions after fetal viability in some circumstances, but
- even after fetal viability, states may not prohibit abortions “necessary to preserve the life or health of the mother”;
- “health” in this context includes both physical and mental health;
- only the physician, in the course of evaluating the specific circumstances of an individual case, can define what constitutes “health” and when a fetus is viable; and
- states cannot require additional physicians to confirm the physician’s judgment that the woman’s life or health is at risk.
Although the vast majority of states restrict later abortions—defined variably as abortions occurring once a fetus is viable or beyond a specific point in pregnancy (such as 20 weeks postfertilization or the third trimester)—many of these restrictions have been struck down. Most often, courts have voided the limitations because they do not contain a health exception, they contain an unacceptably narrow health exception, or they do not permit a physician to determine viability on a case-by-case basis, but instead rely on a rigid construct based on specific weeks of gestation or trimester.
STATE LAWS AND POLICIES
For a chart of current laws and policies in each state related to later abortion and “partial-birth” abortion, see State Policies on Later Abortions and Bans on Specific Abortion Methods Used After the First Trimester.
For information on state laws and policies related to other sexual and reproductive health and rights issues, see State Laws and Policies, issue-by-issue fact sheets updated monthly by the Guttmacher Institute’s policy analysts to reflect the most recent legislative, administrative and judicial actions.
RELEVANT DATA AND ANALYSIS
U.S. Supreme Court Standard
The Supreme Court has consistently prohibited banning abortion before viability. According to the Court, states may restrict abortion after viability, provided they include exceptions for the life and health of the woman.
- States may not ban abortion at a specific gestation, but are permitted to place certain restrictions on abortion at viability. Viability cannot be presumed based on gestational age, fetal weight or another single factor; it must be determined by a woman’s doctor on a case-by-case basis.1
- In Planned Parenthood v. Casey, the Court affirmed that bans after viability must include exceptions for the life and health of the mother.2
- Courts have often voided the limitations enacted by states (including restrictions on “partial-birth” abortion) because they do not contain a health exception, contain an unacceptably narrow health exception or do not permit a physician to determine viability case by case, but rather rely on a rigid construct based on either specific weeks of gestation or trimester.
- Restrictions on previability abortion not act as a substantial impediment to a woman seeking an abortion; when restrictions are challenged, judges must weigh their impact on women seeking abortion against any potential benefit.
Unproven Claims of Fetal Pain
Abortion bans at 20 weeks’ gestation are based on the unproven spurious assertion that fetuses can feel pain at this point in development.
- A 2005 comprehensive literature review by researchers from the University of California, San Francisco concluded that “fetal perception of pain is unlikely before the third trimester.”3
- It is unlikely that a fetus could perceive pain before the third trimester, when most of the body structures that are necessary to feel pain are growing. A fetus develops cortical function (“required for conscious perception of pain”) at 29–30 weeks.
- Although a fetus may recoil from stimuli, this reaction does not mean that a fetus feels pain. This reaction “can be elicited by nonpainful stimuli and occur without conscious cortical processing.” Anesthetics are provided during fetal surgery to reduce movement or prevent a hormonal stress response—not to eliminate fetal pain.
- Pain is subjective. Without a psychological understanding of pain and the consciousness to know that stimuli are unpleasant, a fetus cannot experience pain.
- In testimony to the House Committee on the Judiciary, The American College of Obstetricians and Gynecologists (ACOG) stated that the organization “knows of no legitimate scientific data or information that supports the statement that a fetus experiences pain at 20 weeks’ gestation.”4
- A 2005 literature review also cited increased risk to the pregnant woman as a reason not to administer anesthesia and analgesia to a fetus during an abortion.3
Needed Access to Later Abortion
- Although most abortions take place early in pregnancy, 9% of women who obtain an abortion do so after the first trimester (at 14 weeks or later), and slightly more than 1% of abortions are performed at 21 weeks or later.5
- Women seeking later abortions typically experience more logistical delays—including difficulties finding a provider, raising funds for the procedure and travel, finding a facility and securing insurance coverage—than women who receive a first-trimester abortion.6
- Fifty-eight percent of all abortion patients wish that they could have obtained their abortion earlier.7
- In 2012, only 34% of all abortion-providing facilities offered abortions at 20 weeks' gestation and 16% at 24 weeks.8
- Hospitals are more likely than other types of facilities to offer abortions at 20 weeks' gestation and beyond. Among facilities that perform abortions, two-thirds of hospitals (among those that perform abortions) did so at 20 weeks, compared with 36% of abortion clinics.8
- Women sometimes choose to terminate a pregnancy because of fetal medical conditions or because pregnancy poses a threat to their health.
- In 2008-2010, women denied an abortion on the grounds of gestational limit limit felt more regret and anger and less relief and happiness, compared with women who received a near-limit abortion.9
- Certain groups of women are more likely than others to obtain abortions at 13 weeks or later.
- According to analysis of a national sample of young women obtaining abortions in 2008, women with lower educational levels, black women and women who had experienced multiple disruptive life events in the last year—such as unemployment or separation from a partner—were more likely than others to have had an abortion at or beyond 13 weeks.10
- Exposure to disruptive events was associated with increased likelihood of obtaining a second-trimester abortion.
Interfering with Patient-Provider Relationship
Banning abortion methods interfere with the provider-patient relationship.
- Only medical providers have the knowledge and skills necessary to assess patients and determine what medical procedures are safest and best.
- In its April 2007 decision in Gonzales v. Carhart, the Supreme Court upheld the federal Partial-Birth Abortion Ban Act of 2003 and, in the process, set a major jurisprudential precedent.
- The federal law includes no health exception.
- The term “partial birth abortion” is not a defined procedure recognized by leading medical groups, including ACOG. Nevertheless, the Court found the federal law’s definition sufficient to pass constitutional muster.
- In 2015, two states enacted laws that ban a common second-trimester abortion method—dilation and evacuation (D&E). Four more states followed suit in 2016.
- D&E is the typical method of abortion during the second trimester. In those states where the D&E procedure is banned, an abortion provider must induce fetal demise or labor, adding unnecessary risk without any medical benefit to the patient.11
- Proposed laws describe D&E in medically inaccurate terms designed to portray abortion as dangerous.
RECENT STATE ACTION ON THIS ISSUE
States that have addressed this issue over the past three years are listed below.
E: State enacted a relevant measure
V: State vetoed measure
A: State adopted measure in at least one chamber
States that have amended their postviability abortion law
|New Mexico (2015)||A|
States that prohibit the use of dilation and evacuation abortion
West Virginia (2016)
States that ban abortions at a specific gestational age (usually 20 weeks’ postfertilization)
|South Carolina (2015, 2016)||E|
|South Dakota (2016)||E|
|West Virginia (2014, 2015)||E|
1. The Alan Guttmacher Institute (AGI), Late-term abortions: legal considerations, Issues in Brief, New York: AGI, 1997.
2. Cohen SA and Saul R, The campaign against ‘partial-birth’ abortion: status and fallout, Guttmacher Report on Public Policy, 1998, 6(1):6–10, https://www.guttmacher.org/pubs/tgr/01/6/gr010606.pdf.
3. Lee SJ et al., Fetal pain: a systematic multidisciplinary review of the evidence, Journal of the American Medical Association, 2005, 294(8):947–954.
4. Statement of ACOG, U.S. House Committee on the Judiciary, Pain of the Unborn hearing, Nov. 1, 2005.
5. Guttmacher Institute, Induced abortion in the United States, Fact Sheet, 2016, https://www.guttmacher.org/fact-sheet/induced-abortion-united-states.
6. Foster DG and Kimport K, Who seeks abortions at or after 20 weeks? Perspectives on Sexual and Reproductive Health, 2013, 45(4):210–218, http://onlinelibrary.wiley.com/doi/10.1363/4521013/pdf.
7. Finer LB et al., Timing of steps and reasons for delays in obtaining abortions in the United States, Contraception, 2006, 74(4):334–344.
8. Jerman J and Jones RK, Secondary measures of access to abortion services in the United States, 2011 and 2012: gestational age limits, cost, and harassment, Women's Health Issues, 2014, 24(4):e419–e424.
9. Rocca CH et al., Women’s emotions one week after receiving or being denied an abortion in the United States, Perspectives on Sexual and Reproductive Health, 2013, 45(3):122−131, http://onlinelibrary.wiley.com/doi/10.1363/4512213/pdf.
10. Jones RK and Finer LB, Who has second-trimester abortions in the United States? Contraception, 2011, 85(6):544−551.
11. Petition of Plaintiffs, Hodes & Nauser v. Schmidt, Petition, Kan. Dist. Ct., June 1, 2015, http://www.reproductiverights.org/sites/crr.civicactions.net/files/documents/SB-95%20Petition-Signed-not-File-Stamped.pdf.