This Evidence You Can Use is designed to give advocates, service providers and policymakers the data and resources they need to engage in ongoing policy discussions in their states. It includes information on state laws and policies, a synthesis of the relevant research, information on states in which the issue has been debated in the past three years and links to state-specific data. The toolkit provides an evidence base for understanding the impact of restrictions on abortions later in pregnancy and the benefits of expanding access to services women need.

BACKGROUND

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

 

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.

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.

Needed Access to Later Abortion

Interfering with Patient-Provider Relationship

Banning certain late-term abortion methods interfere with the provider-patient relationship.

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 

Florida (2014) E
New Mexico (2015) A

States that prohibit the use of dilation and evacuation abortion

Alabama (2016)

E

Kansas (2015)

E

Louisiana (2016)

E

Mississippi (2016)

E

Oklahoma (2015)

E

Pennsylvania (2016)

A

West Virginia (2016)

E

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

Minnesota (2014) A
Mississippi (2014) E
Ohio (2016) E
South Carolina (2015, 2016) E
South Dakota (2016) E
West Virginia (2014, 2015) E
Wisconsin (2015) E

REFERENCES

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.