Abortion Access in the United States: What to Know

A room where abortions were performed at the Trust Women clinic in Oklahoma City. A law that came into effect in Oklahoma in May outlaws abortion in all but a few limited circumstances.
Credit…Nick Oxford for The New York Times

Abortion remains legal in some form in every state, though a law that came into effect in Oklahoma in May outlaws abortion in all but a few limited circumstances.

The new Oklahoma law, the most restrictive abortion ban in the country, bans nearly all abortions starting at fertilization and makes exceptions only in cases where an abortion is necessary to save the life of the mother, or in cases of rape or incest that have been reported to law enforcement. The law relies on everyday residents — neighbors, family, friends — to enforce it by filing lawsuits in civil court against abortion providers or anyone who helps a woman get an abortion. State officials cannot bring criminal charges.

Roe v. Wade established the constitutional right to an abortion before the fetus is viable outside the womb, or about 23 to 24 weeks of pregnancy. Some states have since restricted the procedure to a few weeks earlier in pregnancy.

Texas and Oklahoma are the only states whose abortion bans take effect within the first trimester of a pregnancy, and both states have used a novel technique of civilian enforcement to circumvent legal challenges.

If Roe were overturned, other state laws would take effect. Some states would outlaw abortion immediately while others have laws in place that would keep access to abortion legal.

A ‘Bans Off Our Bodies’ rally in Washington, D.C. in May.
Credit…Kenny Holston for The New York Times

Abortion would probably become illegal in about half of the states, although forecasts differ.

According to the Center for Reproductive Rights, a group that fights abortion restrictions in court and closely tracks state laws, 25 states are likely to ban most abortions if they are allowed to. Those states are: Alabama, Arizona, Arkansas, Georgia, Idaho, Indiana, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Nebraska, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, Wisconsin and Wyoming.

The Guttmacher Institute, a research group focused on reproductive health care, says a slightly different group of states is likely to substantially limit abortion access: Its list of 26 states excludes North Carolina and Pennsylvania, but includes Florida, Iowa and Montana.

Demonstrators outside the Supreme Court in December as the justices heard arguments over a Mississippi law banning most abortions after 15 weeks of pregnancy.
Credit…Gabriela Bhaskar/The New York Times

California, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Nevada, New Jersey, New York, Oregon, Rhode Island, Vermont and Washington, as well as the District of Columbia, have laws that preserve access to abortion, according to the Guttmacher Institute, a reproductive health research group that supports abortion rights.

Some states have also been positioning themselves as “refuges” for abortion rights, by offering support and legal aid to women who travel to their state for an abortion.

Gov. Gavin Newsom has said California would offer tax breaks to companies seeking to move from states where abortion may become illegal. In Oregon, the Legislature approved $15 million in March to help pay for abortion expenses for patients coming from outside the state.

In New York, Democratic lawmakers have been working on a package of bills that would strengthen the state’s already robust abortion access laws. Some of those efforts have been focused on shielding providers from liability for patients coming from states where abortion has been criminalized. Others seek to help patients who travel to New York for reproductive health care.

Jackson Women’s Health Organization is the only abortion clinic in Mississippi, which passed a law banning abortions after 15 weeks of pregnancy.
Credit…Gabriela Bhaskar/The New York Times

If the Supreme Court overturns Roe v. Wade, it would not outlaw abortion. Instead, states would be able to individually determine the procedure’s legality.

Thirteen states across the country have signaled their readiness to ban abortion by passing so-called trigger laws, which would ban most abortions almost immediately if they are allowed to by the Supreme Court.

“Some states that are very strongly anti-abortion, having been frustrated that they couldn’t ban abortion because of Roe v. Wade, decided to pass laws that would be on the books and operative immediately in the future event that the court ever removed the protections of Roe,” said Donna Crane, an adjunct professor at San Jose State University with an expertise in women’s rights and reproductive rights.

The 13 states that have trigger laws all have Republican-controlled legislatures: Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah and Wyoming.

A woman at a Texas clinic holding an ultrasound indicating that she was less than six weeks pregnant and therefore eligible for an abortion under state law.
Credit…Evelyn Hockstein/Reuters

A current Texas law bans abortion after six weeks of pregnancy, and other states like Georgia, Ohio and South Carolina have passed legislation with the intent of prohibiting abortion after six weeks if Roe v. Wade were to be overturned. These bills use the six-week mark as the point when an ultrasound may be able to detect the pulsing of what will become the fetus’s heart.

However, at six weeks many women have no idea they are pregnant.

Doctors measure the beginning of a pregnancy as being the first day of a woman’s last period. Why? They are tracking the length of pregnancy using a nearly 200-year-old calculation called Naegele’s Rule, named after Franz Karl Naegele, the German obstetrician who is credited with creating it in the 1800s.

The rule is somewhat confusing because conception usually does not occur until around 14 days after the first day of a woman’s period, assuming she has a 28-day cycle (which many women do not for a variety of reasons). The reason doctors still use the last menstrual cycle as a benchmark is because it is difficult to know exactly when the sperm fertilized the egg.

So when doctors say a woman is six weeks pregnant, it typically means the embryo started developing about four weeks earlier.

The heart, which can be seen flickering on an ultrasound, is still maturing and cannot be heard until several weeks later.

Perhaps this is the simplest way to say it: Six weeks pregnant is two weeks after a woman misses her period.

One concern that has been raised is whether laws that ban abortion from the moment of fertilization would also outlaw intrauterine devices, or IUDs.
Credit…Michelle Gustafson for The New York Times

Yes, birth control remains legal everywhere in the United States, though several states allow doctors and pharmacists to refuse to prescribe or dispense contraceptives, according to the Guttmacher Institute. The leaked draft of a Supreme Court opinion that would overturn Roe v. Wade does not indicate that the court would revisit past decisions about birth control.

However, some legal experts have raised concerns that justices could apply the argument for overturning Roe to limiting access to contraceptives. As a result, those who support birth control access worry that legislators could use a ban on abortion to make birth control less available.

“We’ve seen folks falsely equating emergency contraceptives and IUDs with abortion,” said Mara Gandal-Powers, director of birth control access and senior counsel at the National Women’s Law Center. “That’s certainly something I’m concerned about.”

One concern that has been raised is whether laws, like one in Oklahoma, that ban abortion from the moment of fertilization would also outlaw intrauterine devices, or IUDs, which prevent a fertilized egg from implanting in the uterus. (The Oklahoma law specifies that it does not apply to contraception, including Plan B or morning-after pills.)

The two forms of emergency contraception pills, Plan B and Ella, work in a different way than IUDs and prevent fertilization from occurring. Both delay or prevent ovulation and allow sperm in the reproductive tract to die out.

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