Abortion in the United States
Abortion is a divisive issue in the United States. The issue of abortion is prevalent in American politics and culture wars, though a majority of Americans support continued access to abortion.[1][2][3][4][5][6] There are widely different abortion laws depending on state.[7]
From the American Revolution to the mid-19th century abortion was not an issue of significant controversy; most held to the traditional Protestant Christian belief that personhood began at quickening, sometime between 18 and 21 weeks. It was legal prior to quickening in every state under the common law.[8][9][10][11] Connecticut was the first state to regulate abortion in 1821; it outlawed abortion after quickening, the moment in pregnancy when the pregnant woman starts to feel the fetus's movement in the uterus, and forbade the use of poisons to induce one post-quickening. Many states subsequently passed various laws on abortion until the Supreme Court of the United States decisions of Roe v. Wade and Doe v. Bolton decriminalized abortion nationwide in 1973. The Roe decision imposed a federally mandated uniform framework for state legislation on the subject. It also established a minimal period during which abortion is legal, with more or fewer restrictions throughout the pregnancy. Evangelical Christians were initially generally either supportive or indifferent to Roe — citing what they saw as a lack of biblical condemnation on the matter, its perceived affirmation of religious liberty, and furthering of non-intrusive government — but by the 1980s began to join anti-abortion Catholics to overturn the decision.[12][13] That basic framework, modified in Planned Parenthood v. Casey (1992), remained nominally in place, although the effective availability of abortion varied significantly from state to state, as many counties had no abortion providers.[14] Casey held that a law could not place legal restrictions imposing an undue burden for "the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus".[15] In December 2021, the FDA legalized telemedicine provision of medication abortion pills with delivery by mail, but many states have laws which restrict this option.
In 2022, Roe and Casey were overturned in Dobbs v. Jackson Women's Health Organization, ending protection of abortion rights by the United States Constitution and allowing individual states to regulate any aspect of abortion not preempted by federal law.[16] Since 1976, the Republican Party has generally sought to restrict abortion access based on the stage of pregnancy or to criminalize abortion, whereas the Democratic Party has generally defended access to abortion and has made contraception easier to obtain.[17]
The abortion-rights movement advocates for patient choice and bodily autonomy, while the anti-abortion movement maintains that the fetus has a right to live. Historically framed as a debate between the pro-choice and pro-life labels, most Americans agree with some positions of each side.[18] Support for abortion gradually increased in the U.S. beginning in the early 1970s,[19] and stabilized during the 2010s.[20][21] The abortion rate has continuously declined from a peak in 1980 of 30 per 1,000 women of childbearing age (15–44) to 11.3 by 2018.[22] In 2018, 78% of abortions were performed at 9 weeks or less gestation, and 92% of abortions were performed at 13 weeks or less gestation.[22] By 2023, medication abortions accounted for 63% of all abortions.[23] Almost 25% of women will have had an abortion by age 45, with 20% of 30 year olds having had one.[24] In 2019, 60% of women who had abortions were already mothers, and 50% already had two or more children.[25][26] Increased access to birth control has been statistically linked to reductions in the abortion rate.[27][28][29]
As of 2024, Alaska, California, Illinois, Kansas, Michigan, Minnesota, Ohio and Vermont have a right to abortion in their state constitutions, either explicitly or as interpreted by the state supreme court.[30] Other states, such as Colorado and Massachusetts, protect abortion under state law. The state constitutions of Alabama, Louisiana, Tennessee, and West Virginia explicitly contain no right to an abortion.
History
Early history and rise of anti-abortion legislation
Abortion was a fairly common practice in the history of the United States, and was not always controversial.[10][35] At a time when society was more concerned with the more serious consequence of women becoming pregnant out of wedlock, family affairs were handled out of public view.[36][35] Abortion did not become a public controversy until the health risk of unsafe abortions by (female) unlicensed practitioners was brought to the public attention in the 19th century.[37] James Mohr wrote that even though pre-quickening abortion was legal in the first three decades of the 19th century, only 1 in 25 to 1 in 30 pregnancies ended in abortion. By the 1850s and 1860s, this number had increased to 1 in 5 or 1 in 6.[11][38] John Keown highlighted some challenges in pinning down the common law view, observing that "evidence of quickening would clearly facilitate prosecution".[39][40] In the mid-18th century, Benjamin Franklin included a recipe for an abortifacient in a math textbook.[41][42] In 1728, Franklin condemned publisher Samuel Keimer for publishing an article on abortion. According to biographer Walter Isaacson, Franklin did not have a strong view on the issue.[43] In The Speech of Polly Baker, Franklin places the blame for abortion and infanticide on the sexual double standard against women. He stated:[44]
Legal status
Federal legislation
Beyond limitations pertaining to abortion in the context of federal funding, there currently exists little, if any, federal legislation protecting or penalizing abortion in the United States.[151] The Partial-Birth Abortion Ban Act of 2003 (codified at 18 U.S.C. § 1531), Freedom of Access to Clinic Entrances Act of 1994 (codified at 18 U.S.C. § 248), and Comstock Act of 1873 (codified at 18 U.S.C. 552, 18 U.S.C. 1461, 18 U.S.C. 1462, and 18 U.S.C.1463) are some of the few pieces of existing federal law that provide substantive criminal provisions either protecting or penalizing abortion. The provisions in the Partial Birth Abortion Ban Act and the Freedom of Access to Clinic Entrances Act cover activity affecting interstate or foreign commerce, whereas the provisions of the Comstock Act cover activity using the mail or postal system. The Comstock Act is particularly punitive as a violation is considered a predicate offense for purposes of the Racketeer Influenced and Corrupt Organizations Act, or R.I.C.O..[152]
Since 1995, led by congressional Republicans, the U.S. House of Representatives and U.S. Senate have moved several times to pass measures banning the procedure of intact dilation and extraction, commonly known as partial birth abortion. Such measures passed twice by wide margins, but President Bill Clinton vetoed those bills in April 1996 and October 1997 on the grounds that they did not include health exceptions. Congressional supporters of the bill argue that a health exception would render the bill unenforceable, since the Doe v. Bolton decision defined "health" in vague terms, justifying any motive for obtaining an abortion. Congress was unsuccessful with subsequent attempts to override the vetoes.
The Born-Alive Infants Protection Act (BAIPA) was enacted August 5, 2002, by an Act of Congress and signed into law by George W. Bush. It asserts the human rights of infants born after a failed attempt to induce abortion. A "born-alive infant" is specified as a "person, human being, child, individual". "Born alive" is defined as the complete expulsion of an infant at any stage of development that has a heartbeat, pulsation of the umbilical cord, breath, or voluntary muscle movement, no matter if the umbilical cord has been cut or if the expulsion of the infant was natural, induced labor, cesarean section, or induced abortion. The Born-Alive Abortion Survivors Protection Act is a proposed piece of legislation that would result in criminal penalties for any practitioner who denies a born-alive infant care.
On October 2, 2003, with a vote of 281–142, the House approved the Partial-Birth Abortion Ban Act to ban intact dilation and extraction, with an exemption in cases of fatal threats to the woman. Through this legislation, a doctor could face up to two years in prison and civil lawsuits for performing such a procedure. A woman undergoing the procedure could not be prosecuted under the measure. On October 21, 2003, the United States Senate passed the bill by a vote of 64–34, with a number of Democrats joining in support. The bill was signed by President George W. Bush on November 5, 2003, but a federal judge blocked its enforcement in several states just a few hours after it became public law. The Supreme Court upheld the nationwide ban on the procedure in the case Gonzales v. Carhart on April 18, 2007, signaling a substantial change in the Court's approach to abortion law.[153] The 5–4 ruling said the Partial Birth Abortion Ban Act does not conflict with previous decisions regarding abortion.
The judicial interpretation of the U.S. Constitution regarding abortion, following the Supreme Court of the United States's 1973 landmark decision in Roe v. Wade, and subsequent companion decisions, is that abortion is legal but may be restricted by the states to varying degrees. States have passed laws to restrict late-term abortions, require parental notification for minors, and mandate the disclosure of abortion risk information to patients prior to the procedure.[154]
The official report of the U.S. Senate Judiciary Committee, issued in 1983 after extensive hearings on the Human Life Amendment (proposed by Senators Orrin Hatch and Thomas Eagleton), stated: "Thus, the [Judiciary] Committee observes that no significant legal barriers of any kind whatsoever exist today in the United States for a mother to obtain an abortion for any reason during any stage of her pregnancy."[155]
One aspect of the legal abortion regime now in place has been determining when the fetus is "viable" outside the womb as a measure of when the "life" of the fetus is its own (and therefore subject to being protected by the state). In the majority opinion delivered by the court in Roe v. Wade, viability was defined as "potentially able to live outside the mother's womb, albeit with artificial aid. Viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks". When the court ruled in 1973, the then-current medical technology suggested that viability could occur as early as 24 weeks. Advances over the past three decades allow survival of some babies born at 22 weeks.[156]
As of 2006, the youngest child to survive a premature birth in the United States was a girl born at Kapiolani Medical Center in Honolulu, Hawaii, at 21 weeks and 3 days gestation.[157] Because of the split between federal and state law, legal access to abortion continues to vary by state. Geographic availability varies dramatically, with 87 percent of U.S. counties having no abortion provider.[158] Moreover, due to the Hyde Amendment, many Medicaid state programs do not cover abortions; as of 2022, 17 states including California, Illinois, and New York offer or require such coverage.[159]
The legality of abortion is frequently a major issue in nomination battles for the U.S. Supreme Court. Nominees typically remain silent on the issue during their hearings, as the issue may come before them as judges.[160]
The Unborn Victims of Violence Act, commonly known as Laci and Conner's Law, was passed by Congress and signed into law by President Bush on April 1, 2004, allowing two charges to be filed against someone who kills a pregnant mother (one for the mother and one for the fetus). It specifically bans charges against the mother and/or doctor relating to abortion procedures. Nevertheless, it has generated much controversy among pro-abortion rights advocates who view it as a potential step in the direction of banning abortion.
In 2021, the Women's Health Protection Act, which would codify abortion rights into federal law, was introduced by Judy Chu.[161] The bill passed the U.S. House of Representatives but was rejected by the U.S. Senate.[162]
After the Dobbs decision, Merrick Garland, the U.S. Attorney General, asserted that under federal law, states do not have the right to restrict access to FDA-approved abortion pills, but Louisiana passed a law to ban mailing them.[163]
Legal experts cited as a potentially persuasive precedent the 2014 district decision in Zogenix v. Patrick, in which the court ruled that under the doctrine of federal preemption, Massachusetts could not ban the opioid Zohydro because it had been approved by the FDA.[164][165]
On September 13, 2022, Republican senator Lindsey Graham, who had previously stated that abortion should be left up to each state,[166] introduced legislation that would ban abortion nationwide after 15 weeks of pregnancy with exceptions for rape, incest, and the life of the patient, named the Protecting Pain-Capable Unborn Children from Late-Term Abortions Act.[167][168][169] This law would require states to ban abortion after 15 weeks, but it would not require states with stricter bans to allow it up to that point.[170] Despite the view that it "gets the United States in line with other developed nations", it leaves out the fact that none of those nations ban abortion. Graham had previously introduced the Pain-Capable Unborn Child Protection Act, which set the period at 20 weeks.[171]
Penalties by state
Currently, 13 states have criminal penalties for performing abortions, regardless of gestational age.[172] The penalties in states that have made abortion illegal vary, as outlined below.
This chart lists only the penalties authorized specifically by the state laws which explicitly restrict (or ban) abortions. The chart does not address the risk of being prosecuted for violating any other law because of the abortion. The jurisprudence surrounding this question – whether laws such as "fetal-personhood laws",[173] or laws originally intended to protect pregnant women and their pregnancies from external aggressors, can now also be used to prosecute women who obtain abortions, or who terminate their own pregnancies, deliberately or unintentionally[174] – is unsettled, variable, and, in some states, unclear.[175]
States with criminal penalties that are blocked by a court, have yet to take effect, or are unenforced are denoted by a grey background.
Qualifying requirements for abortion providers
Qualifying requirements for performing abortions vary from state to state.[277] Vermont has allowed physician assistants to do some first-trimester abortions since the mid-1970s.[278] More recently, several states have changed their requirements for abortion providers, anticipating that the Supreme Court would overturn Roe v. Wade; now that the court has done so, more states are expanding eligibility to provide abortions. As of July 2022, California, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Montana, New Jersey, New York, Rhode Island, Virginia and Washington allow mid-level practitioners such as nurse practitioners, nurse midwives, and physicians assistants, to do some first-trimester abortions.[279] In other states, non-physicians are not permitted to perform abortions.
Positions of political parties
After Roe, there was a national political realignment surrounding abortion. The abortion-rights movement in the United States initially emphasized the national policy benefits of abortion, such as smaller welfare expenses, slower population growth, and fewer illegitimate births. The abortion-rights movement drew support from the population control movement, feminists, and environmentalists. Anti-abortion advocates and civil-rights activists accused abortion-rights supporters of intending to control the population of racial minorities and the disabled, citing their ties to racial segregationists and eugenicist legal reformers. The abortion-rights movement subsequently distanced from the population control movement, and responded by taking up choice-based and rights-oriented rhetoric similar to what was used in the Roe decision.[337] Opponents of abortion experienced a political shift. The Catholic Church and the Democratic Party supported an expansive welfare state, wanted to reduce rates of abortion through prenatal insurance and federally funded day care, and opposed abortion at the time of Roe. Afterwards, the anti-abortion movement in the United States shifted more to Protestant faiths that saw abortion rights as part of a liberal-heavy agenda to fight against, and became part of the new Christian right. The Protestant influence helped make opposition to abortion part of the Republican Party's platform by the 1990s.[338][339] Republican-led states enacted laws to restrict abortion, including abortions earlier than Casey's general standard of 24 weeks.[121]
Into the 21st century, although members of both major U.S. political parties come down on either side of the issue, the Republican Party is often seen as being anti-abortion, since the official party platform opposes abortion and considers fetuses to have an inherent right to life. Republicans for Choice represents the minority of that party. In 2006, pollsters found that 9% of Republicans favor the availability of abortion in most circumstances.[340] Of Republican National Convention delegates in 2004, 13% believed that abortion should be generally available, and 38% believed that it should not be permitted. The same poll showed that 17% of all Republican voters believed that abortion should be generally available to those who want it, while 38% believed that it should not be permitted.[341] The Republican Party was supportive of abortion rights prior to 1976 Republican National Convention, at which they supported an anti-abortion constitutional amendment as a temporary political ploy to gain more support from Catholics; this stance brought many more social conservatives into the party resulting in a large and permanent shift toward support of the anti-abortion position.[342] The Democratic Party platform considers abortion to be a woman's right. Democrats for Life of America represents the minority of that party. In 2006, pollsters found that 74% of Democrats favor the availability of abortion in most circumstances.[340] Of Democratic National Convention delegates in 2004, 75% believed that abortion should be generally available, and 2% believed that abortion should not be permitted. The same poll showed that 49% of all Democratic voters believed that abortion should be generally available to those who want it, while 13% believed that it should not be permitted.[343]
The position of U.S. third political parties and other U.S. minor political parties is diverse. The Green Party supports legal abortion as a woman's right. While abortion is a contentious issue and the Maryland-based Libertarians for Life opposes the legality of abortion in most circumstances, the Libertarian Party platform (2012) states that "government should be kept out of the matter, leaving the question to each person for their conscientious consideration."[344] The Constitution Party is opposed to abortion.
The issue of abortion has become deeply politicized. In 2002, 84% of state Democratic platforms supported the right to having an abortion while 88% of state Republican platforms opposed it. This divergence also led to Christian right organizations like Christian Voice, Christian Coalition of America, and Moral Majority having an increasingly strong role in the Republican Party. This opposition has been extended under the Foreign Assistance Act; in 1973, Jesse Helms introduced an amendment banning the use of aid money to promote abortion overseas, and in 1984 the Mexico City policy prohibited financial support to any overseas organization that performed or promoted abortions. The policy was revoked by President Bill Clinton and subsequently reinstated by President George W. Bush.[345] President Barack Obama overruled this policy by Executive Order on January 23, 2009,[346] and it was reinstated on January 23, 2017, by President Donald Trump.[345] On January 28, 2021, President Joe Biden signed a Presidential Memorandum that repealed the restoration of Mexico City policy and also called for the United States Department of Health and Human Services to "suspend, rescind or revoke" restrictions made to Title X.[347]
Unintended live birth
Although it is uncommon,[379][380][381] women sometimes give birth in spite of an attempted abortion.[382][383][384] Reporting of live birth after attempted abortion may not be consistent from state to state, but 38 were recorded in one study in upstate New York in the two-and-a-half years before Roe v. Wade.[385] Under the Born-Alive Infants Protection Act of 2002,[386][387] medical staff must report live birth if they observe any breathing, heartbeat, umbilical cord pulsation, or confirmed voluntary muscle movement, regardless of whether the born-alive is non-viable ex utero in the long term because of birth defects, and regardless of gestational age, including gestational ages which are too early for long-term viability ex utero.[388][389][390]