BACKGROUND

In two landmark 1973 abortion cases, Roe v. Wade and Doe v. Bolton, the U.S. Supreme Court held that states could restrict or ban abortions after fetal viability in some circumstances. The cases established that:

  • 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.

The majority of states prohibit some abortions after a certain point in pregnancy, and many restrictions on later abortion have been ruled unconstitutional. Later abortions are defined in different ways, either as abortions once a fetus is viable or beyond a specific point in pregnancy (such as 20 weeks postfertilization or the third trimester). Most often, courts have voided state restrictions because their terms are ambiguous or overly broad, they contain an unacceptably narrow health exception or none at all, or they rely on a rigid definition of fetal viability based on gestation or trimester. Viability cannot be presumed based on gestational age, fetal weight or any other single factor; it must be determined by a woman’s doctor on a case-by-case basis.1

STATE LAWS AND POLICIES

For a chart of current laws and policies in each state related to later 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

  • Starting with its ruling in Roe v. Wade, the U.S. Supreme Court has consistently held that states may not ban abortion at a specific gestation, but they are permitted to place certain restrictions on abortion after the point of viability.
  • In Planned Parenthood v. Casey, the Supreme Court affirmed that bans after viability must include exceptions to protect the life and health of the woman.2,3
    • Courts have voided the limitations enacted by states 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, instead imposing a rigid definition based on specific weeks of gestation or trimester.2
    • Restrictions on previability abortion must not act as a substantial impediment to obtaining an abortion; when restrictions are challenged, a judge must weigh their impact on women seeking abortion against any potential benefit.3

Unproven Claims of Fetal Pain and Survival of Extremely Preterm Infants

Proponents of abortion bans at 20 weeks postfertilization (which is equivalent to 22 weeks after a woman’s last menstrual period) base their argument on the assertion that a fetus can feel pain at this point in development.4

  • According to the American College of Obstetricians and Gynecologists (ACOG), available evidence indicates that a fetus cannot perceive pain until the “third trimester at the earliest, well past the period between 20 weeks and viability.”5
  • 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.”6
    • A fetus cannot experience pain until after viability and lacks the brain structures and connections necessary to process pain. A fetus develops cortical function (“required for conscious perception of pain”) at 29–30 weeks, during the third trimester.6,7 
    • 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 address pain. 
    • Pain is subjective. Without a psychological understanding of pain and the consciousness to know that stimuli are unpleasant, a fetus cannot experience pain.
  • Abortion opponents often cite a 2015 study on outcomes for extremely preterm infants to support their argument that a fetus can survive at 20 weeks postfertilization; however, this study found nearly all infants born prior to this time (22 weeks’ gestation) do not survive.4,7

Barriers to Obtaining Later Abortion Procedures

  • Women seeking an abortion after 12 weeks of pregnancy typically experience more logistical delays—including difficulties locating a provider, raising funds for the procedure and for transportation costs, and obtaining or confirming health insurance coverage—than women who obtain a first-trimester abortion.
  • In 2012, only 34% of all facilities that provided abortion in the United States offered the procedure at 20 weeks’ gestation; 16% did so at 24 weeks.
  • Hospitals are more likely than other types of facilities to offer abortions at 20 weeks’ gestation and beyond. In 2012, two-thirds of hospitals that performed abortion did so at 20 weeks, compared with 36% of abortion clinics.11 However, abortion care at hospitals is not widely available (accounting for fewer than 5% of all abortion procedures across the country in 2011) and can be very expensive, further compounding the barriers experienced by women seeking care later in pregnancy.

Other Factors That Result in Later Abortions

Delays push women who want to obtain an abortion until further along in the pregnancy than intended. Multiple factors in a patient’s life, along with state laws requiring a waiting period and additional visits, can make it more difficult for patients to access abortion services earlier in pregnancy.

  • Fifty-eight percent of abortion patients in a 2004 survey reported that they would have preferred to have obtained their abortion earlier than they did.10 

The intersecting aspects of an individual’s identity—such as race, socioeconomic status, gender, age, education, state of residence, and rural or urban location—play a role in how barriers to health care affect the ability to obtain abortion services.

  • According to an analysis of a national sample of women who obtained abortions in 2014, women with less education, black women and women who had experienced multiple disruptive life events (such as unemployment or separation from a partner) in the past year were more likely than others to have had an abortion at or beyond 13 weeks’ gestation.11 
  • Women who lived at least 50 miles away from an abortion facility were more likely than those who lived less than 25 miles away to seek a second-trimester abortion.11  
  • In addition, only 25% of women who lived in states that require an in-person counseling visit before an abortion procedure obtained an abortion within seven weeks after their last menstrual period, compared with 40% of women who lived in states without a waiting period.11

Need for Abortion Access at All Stages of Pregnancy

  • Although most abortions take place early in pregnancy, 11% of women who obtain an abortion do so after the first trimester (at 13 weeks after the last menstrual period or later), and slightly more than 1% of abortions are performed at 21 weeks or later.12
  • Women sometimes choose to terminate a pregnancy because of fetal medical conditions or because the pregnancy poses a threat to their health; these diagnoses can be received throughout pregnancy.13
  • In 2008–2010, women denied an abortion because they were past the gestational limit under state law or clinical practice felt more regret and anger and less relief and happiness compared with women who obtained an abortion close to the gestational limit at the same clinic.14

Interference with the Patient-Provider Relationship

Banning certain abortion methods interferes with the provider-patient relationship.

  • Medical providers have the knowledge and skills necessary to assess patients and determine which medical procedures are safest and most appropriate. ACOG’s abortion policy statement supports patients’ agency in making medical decisions “in consultation with their health care providers and without undue interference by outside parties.”15 
  • In its 2007 decision in Gonzales v. Carhart, the U.S. Supreme Court upheld the federal Partial-Birth Abortion Ban Act of 2003 and set a major jurisprudential precedent by allowing legislators to prohibit health care professionals from using a safe medical technique.16,17
    • 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 be constitutional and allowed the law to be used to ban a specific method that had been used in some later abortion procedures.
    • The federal law does not include a health exception.
  • Since 2015, several states have enacted laws that ban another second-trimester abortion method—dilation and evacuation (D&E).18 Two laws are currently in effect and the others have been challenged in court.
    • D&E is a safe and routine method of abortion used after 12 weeks’ gestation: It accounts for 95% of abortions after the first trimester.13
    • Proposed and enacted legislation describes D&E in medically inaccurate terms designed to portray abortion as dangerous. Yet in those states where the D&E procedure is banned, one consequence is that providers may be forced to induce fetal demise or labor in order to comply with the law, adding unnecessary risk without any medical benefit to the patient.13,19
    • D&E bans disproportionately impact women who receive diagnoses of fetal anomalies or maternal health complications because many such diagnoses do not take place until the second trimester.13 

DATA CENTER

RECENT STATE ACTION ON THIS ISSUE

States that have addressed this issue in the past three years are listed below.

EState 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 

Montana (2017)

V

Tennessee (2017)

E

States that prohibit the use of dilation and evacuation abortion

Alabama (2017)

E

Arkansas (2017)

E

Indiana (2019)

E

Kentucky (2018)

E

Louisiana (2018)

E

Michigan (2019)

A

North Dakota (2019)

E

Ohio (2018)

E

Pennsylvania (2017)

A

South Carolina (2017)

A

Texas (2017)

E

States that ban abortions at a specific gestational age (usually 20 weeks postfertilization) 

Alabama (2019)

E

Arkansas (2019)

E

Georgia (2019)

E

Iowa (2017)

E

Kentucky (2017, 2019)

E

Louisiana (2018, 2019)

E

Minnesota (2019)

A

Missouri (2018, 2019)

E

Mississippi (2018, 2019)

E

Montana (2017, 2019)

V

Ohio (2019)

E

Pennsylvania (2017)

A

South Carolina (2019)

A

Tennessee (2019)

A

Utah (2019)

E

REFERENCES

1. Colautti v. Franklin, 439 U.S. 379 (1979).

2. Cohen SA and Saul R, The campaign against ‘partial-birth’ abortion: status and fallout, Guttmacher Report on Public Policy, 1998, 1(6):6–10, https://www.guttmacher.org/gpr/1998/12/campaign-against-partial-birth-abortion-status-and-fallout.  

3. Planned Parenthood of Southeastern Pennsylvania  Casey, 505 U.S. 833 (1992); Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016). 

4. Rysavy MA et al., Between-hospital variation in treatment and outcomes in extremely preterm infants, New England Journal of Medicine, 2015, 372(19):1801–1811, http://www.nejm.org/doi/pdf/10.1056/NEJMoa1410689.

5. American College of Obstetricians and Gynecologists (ACOG), Facts are important: fetal pain, 2013, https://www.acog.org/-/media/Departments/Government-Relations-and-Outreach/FactAreImportFetalPain.pdf.

6. Lee SJ et al., Fetal pain: a systematic multidisciplinary review of the evidence, JAMA: The Journal of the American Medical Association, 2005, 294(8):947–954.

7. ACOG Wisconsin Section, 20-week abortion ban legislation, no date, https://images.magnetmail.net/images/clients/ACOG/attach/WI_IssuePaper20WeekAbortionBan_updated.pdf.

8. Foster DG and Kimport K, Who seeks abortions at or after 20 weeks?, Perspectives on Sexual and Reproductive Health, http://onlinelibrary.wiley.com/doi/10.1363/4521013/pdf.

9. 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, http://www.whijournal.com/article/S1049-3867(14)00058-9/fulltext.

10. Finer LB et al., Timing of steps and reasons for delays in obtaining abortions in the United States, Contraception, 2006, 74(4):334–344.

11. Jones RK and Jerman J, Characteristics and circumstances of U.S. women who obtain very early and second-trimester abortions, PLOS ONE, 2017, 12(1):e0169969.

12. Guttmacher Institute, Induced abortion in the United States, Fact Sheet, New York: Guttmacher Institute, 2017, https://www.guttmacher.org/fact-sheet/induced-abortion-united-states.

13. Donovan MK, D&E abortion bans: the implications of banning the most common second-trimester procedure, Guttmacher Policy Review, 2017, 20:35–38, https://www.guttmacher.org/gpr/2017/02/de-abortion-bans-implications-banning-most-common-second-trimester-procedure.

14. 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

15. ACOG, Abortion Policy, 2017, https://www.acog.org/Clinical-Guidance-and-Publications/Statements-of-Policy-List.

16. Gonzales v. Carhart, 550 U.S. 124 (2007).

17. American Civil Liberties Union, Stenberg v. Carhart: a legal analysis, https://www.aclu.org/other/stenberg-v-carhart-legal-analysis.

18. Guttmacher Institute, Bans on specific abortion methods used after the first trimester, State Laws and Policies (as of October 1, 2019), 2019, https://www.guttmacher.org/state-policy/explore/bans-specific-abortion-methods-used-after-first-trimester.

19. Petition of Plaintiffs, Hodes & Nauser v. Schmidt, Kan. Dist. Ct., June 1, 2015, http://www.reproductiverights.org/sites/crr.civicactions.net/files/documents/SB-95%20Petition-Signed-not-File-Stamped.pdf.