Background

For decades, states have attempted to limit access to abortion after the first trimester by enacting restrictions on specific abortion methods. In the 1990s and early 2000s, most of the attention focused on attempts to ban “partial-birth” abortion. Although they used varying definitions of “partial-birth” abortion, the laws all banned the procedure except in the rarest circumstances. Many, but not all, of these state-level restrictions were struck down in courts. However, the U.S. Supreme Court upheld a federal version in 2007 in Gonzales v. Carhart. That law, which applies across the country, bans “partial-birth” abortion except when the woman’s life is endangered and does not contain an exception to protect the woman’s health. Moreover, although the law does not include a precise medical definition of what is banned, the Court found the federal law’s definition sufficient to pass constitutional muster and applied it to the dilation and extraction (D&X) abortion method. The federal law is currently in effect, along with several state laws that allow for state and local law enforcement of the method ban and, potentially, stiffer penalties for violations.

More recently, states began enacting laws banning the abortion method most commonly used in the second trimester, dilation and evacuation (D&E). So far, all of these laws have very limited exceptions; they allow a woman to obtain an abortion using this method only when necessary to protect her life or in case of a “serious risk of substantial and irreversible physical impairment of a major bodily function.” The laws do not make an exception for serious mental health conditions.

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