Bans on Specific Abortion Methods Used After the First Trimester

Background

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 so-called 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 by 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 pregnant person’s life is endangered and does not contain an exception to protect the patient’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 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, standard dilation and evacuation (D&E). So far, all of these laws have very limited exceptions; they allow an individual to obtain an abortion using this method only when necessary to protect their 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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Highlights

  • 3 states have bans on D&E, most commonly used method of abortion in the second trimester. These bans only allow the use of the method when necessary to protect the patient’s life or when their physical health is severely compromised.
  • 21 states ban the provision of “partial-birth” abortion.
    • 13 of the laws are similar to the federal version that was upheld by the U.S. Supreme Court.
    • 7 of them remain unchallenged but, because of the broad nature of their language, are presumably unenforceable under the Supreme Court’s 2000 decision in Stenberg v. Carhart, which struck down a Nebraska ban.
    • All 20 state laws include some sort of exception.
      • 3 states have bans that include a health exception.
        • 1 state allows use of the procedure when the patient's health is at risk.
        • 2 states allow use of the procedure only when the patient's physical health is severely compromised.
      • 17 states have bans that allow for an exception only when the patient's life is in danger.

Bans on Specific Abortion Methods After 1st Trimester

STATE

DILATION & EVACUATION ABORTION

"PARTIAL-BIRTH" ABORTION

Procedure Banned

Exception in Cases of Life or Severe Physical Health Risk

Procedure Banned

Exception in Cases of Life or Health Risk

Exception Only in Cases of Life Endangerment

Alabama

 

 

Alaska

 

 

 

 

Arizona

 

 

X

 

X

Arkansas

 §

 §

X

 

X

Florida

 

 

 

 

Georgia

 

 

X*

X*

 

Idaho

 

 

 

 

Illinois

 

 

 

 

 

Indiana

▽​

▽​

 

Iowa

 

 

 

 

Kansas

§

§

X

 

X

Kentucky

 

 

Louisiana

§

§

X

 

X

Michigan

 

 

X

 

X

Mississippi

X

X

 

 

 

Missouri

 

 

X

 

Montana

 

 

*

 

*

Nebraska

X

 

 

New Hampshire

 

 

X

 

X

New Jersey

 

 

 

 

New Mexico

 

 

X*

X*,

 

North Dakota

 

 

X

 

X

Ohio

§ 

§ 

X

X

 

Oklahoma

§

§

 

Rhode Island

 

 

 

 

South Carolina

 

 

 

South Dakota

 

 

 

Tennessee

 

 

 

Texas

X

 

X

Utah

 

 

X

 

X

Virginia

 

 

X

 

X

West Virginia

X

X

 

 

Wisconsin

 

 

 

 

TOTAL

3

3

21

3

17

  Permanently enjoined by court order; law not in effect.

§    Temporarily enjoined by court order; law not in effect.

*    Law applies after viability.

    This policy is presumably unenforceable under the terms set out in Stenberg v. Carhart; however, it has not been challenged in court.

    The health exception only applies to severe physical health conditions.