Until the late 1960s, abortion was prohibited in all states, although some provided exceptions in order to save the life of the mother. Starting in 1970, several states (Alaska, California, Hawaii, New York and Washington) loosened their restrictions, making abortion more broadly available to women there. In 1973, the US Supreme Court decided the landmark case Roe v. Wade, which recognized the right to privacy of a woman choosing whether to abort a fetus or to carry the pregnancy to term, but gave the states some ability to regulate the procedure. This was implemented in a trimester framework: in the first trimester, women were free to choose to have an abortion; in the second trimester, states could impose some limits but could not ban abortions outright; in the third, the states were allowed to ban abortions completely except in cases where the life or health of the woman was jeopardized.
Following Roe, states began to enact laws limiting the availability of abortion in later parts of pregnancy, and slowly their ability to legislate abortion was defined. The Hyde Amendment, en- acted by Congress in 1976, prevented federal funds from being used to pay for most abortions; states were allowed to impose similar restrictions on Medicaid funding. For a few years, only parental consent/notification laws for minors seeking abortions were upheld, while other restric- tions were challenged in the courts and struck down. Later Supreme Court decisions, in particular Webster v. Reproductive Health Services(1989) and Planned Parenthood of Southeastern Pennsyl- vania v. Casey(1992), greatly expanded the ability of the states to regulate abortions. The Casey case specifically ratified Pennsylvania’s 24-hour mandatory waiting period, parental notification for minors, and requirement that specific information about health risks be provided to all abortion pa- tients. More generally, the decision abandoned the trimester structure defined in Roe and instead set a new standard for states, allowing restrictions prior to viability of the fetus so long as they did not impose an “undue burden”’ on women (Hull and Hoffer, 2010).
After the Casey decision, an increasing number of state abortion regulations were enacted. Some of the most common restrictions put in place over the past 20 years include:
Medicaid funding: Some states allow Medicaid to cover abortion costs only in cases where the woman’s life is in danger or when the pregnancy is the result of rape or incest. Others have chosen to allow for other specific circumstances, or to fund all or most medically necessary abortions for Medicaid-enrolled women.
Insurance coverage: Some states prohibit all private insurance policies from covering abortion ex- cept in cases of life endangerment, although a few allow policyholders to purchase abortion coverage through a supplemental rider at an additional cost. Other states refuse to include abortion coverage in policies that cover public employees or are paid for in part with state funds.
Mandatory counseling/informed consent:Many states require that specific information be provided to a woman before an abortion, but the mandated information varies widely from state to state. In some, women have to be informed of the risks of both the procedure and of continuing the preg- nancy, while other states provide information specifically intended to dissuade the woman from
having the abortion. This could include detailed information and photographs describing fetal de- velopment, mandated ultrasounds, or discussion of the (disproved) links between abortion and in- fertility, breast cancer and depression.
Waiting period:Several states require a waiting period between a mandatory counseling session and the abortion procedure, often necessitating two separate trips to the clinic.
Parental involvement: Most states require parental consent or notification prior to a minor’s abor- tion, although some allow another adult relative to stand in for a parent. States are required to provide a judicial bypass procedure whereby the minor can obtain a court order stating that waiving parental involvement is in her best interest.
Gestational limits:Some states prohibit abortion after a specific point in the pregnancy, such as the 24th week or the start of the third trimester, while others restrict abortion after viability.
Figure 2.1 shows the numbers of states with each of the restrictions described above, in every year from 1990 to 2010. For each type of law, the solid line indicates the number of states with the regulation on the books, while the dashed line shows the number of states actually enforcing the law.1 Overall there is an upward trend in the number of states enacting and enforcing each type of law, with the exception of Medicaid funding restrictions. Although over time more states have chosen to enact this type of regulation, there have been several court rulings that ordered states to fund abortions for Medicaid recipients if they provide funding for other pregnancy and childbirth- related services.2
Also of interest is how the restrictiveness of states has evolved over time. In Figure 2.2, states are colored according to their change in the number of abortion restrictions enforced between 1993 and 2010. States colored a darker shade of grey have had the largest increase in the number of laws, adding up to four restrictions, while striped states have become more permissive (thicker black stripes indicate fewer restrictions enforced). A large number of states, particularly in the south and
1Abortion restrictions are often challenged in the courts. Depending on the outcome of the case, judges may choose to
temporarily or permanently enjoin laws, prohibiting them from being enforced during the designated time period. In this chapter, laws considered to be “enforced” are those which have been enacted and have not been struck down or enjoined.
2As of January 2011, four states and Washington DC voluntarily chose to fund abortions through Medicaid, while
central US, have become more restrictive in the past two decades, while a few states have become more lenient regarding the abortion regulations considered.