Evidence You Can Use: Later Abortion 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 abortion services women need.

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:

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

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

Barriers to Obtaining Later Abortion Procedures

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.

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.

Need for Abortion Access at All Stages of Pregnancy

Interference with the Patient-Provider Relationship

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

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.