Though individual states have retained some narrow, legal outlets for regulating abortion, Roe vs. Wade forbids them from outlawing abortion during the first trimester and binds them to an extremely broad "health" exception during the second and third trimester.
Ever since the passage of Roe v. Wade, abortion has been a federally-protected practice. Should Roe be overturned in the future, abortion would not thereby be outlawed—unless the Constitution was concurrently amended to explicitly recognize unborn human beings as persons under the law. Barring such an amendment, jurisdiction over abortion would be returned to the states. Prior to Roe, most abortions were illegal in most states. In the late 1960’s, California and Colorado became the first states to legalize abortion in selective circumstances—such as rape, incest, or severe handicap. In 1970, New York, Alaska, Washington, and Hawaii became the only states to offer an "unrestricted" abortion policy similar to the one established by the Supreme Court. When Roe was decided in 1973, all state abortion prohibitions were thereby invalidated. Though Roe forbids states from outlawing abortion during the first and second trimester, the Planned Parenthood v. Casey decision did provide them with some narrow legal outlets for regulating abortion.
Parental Involvement Laws
Parental notification and parental consent laws exist in many states as a means of regulating abortion among minors. Notification laws require that a parent is notified before their minor daughter can receive an abortion; consent laws require parental permission before an abortion can take place. The Guttmacher Institute—which began as the research arm of Planned Parenthood—reports that as of 2019, 26 states require parental consent; eleven more require parental notification.1 The remaining 13 states either don’t enforce their parental involvement laws (Alaska, California, Montana, Nevada, New Jersey & New Mexico), don’t have parental involvement laws (Hawaii, New York, Oregon, Vermont & Washington), or have explicitly given minors the right to consent to their own abortions (Connecticut, DC & Maine).2 Nationally, less than 5% of all abortions are performed on minors.3
Mandated Counseling Requirements4
Thirty-four states require women to receive some form of verbal or written counseling prior to an abortion. Only 11 states require that this information be given to all women seeking an abortion; the other 19 only mandate that it be offered. Thirty-two states require the mother to be told the age of her baby. Twenty-nine states detail the information that must be given or offered to a woman prior to an abortion. Some of those various requirements are listed below:
- 28 states mandate the inclusion of information on prenatal development.
- 28 states mandate the inclusion of information on the risks of abortion.
- 26 states mandate the inclusion of information on the specific abortion procedure.
- 24 states mandate the inclusion of information on all abortion procedures.
- 22 states mandate the inclusion of information on abortion risks to future fertility.
- 13 states mandate the inclusion of information on fetal pain.
- 8 states mandate the inclusion of information on abortion’s potential to cause psychological trauma.
- 6 states mandate the declaration that life begins at conception.
- 5 states mandate the inclusion of information detailing abortion’s link to breast cancer.
Mandated Waiting Periods
Before an abortion can be legally performed, formal consent must be given—either by the woman herself or by her parent. Twenty-seven states mandate that once consent is given, a specific-waiting period must elapse before the abortion can take place5—somewhere between 18 and 72 hours. The most common waiting period is 24 hours. Fourteen of these states require that consent be given in person (Arizona, Arkansas, Indiana, Kentucky, Louisiana, Mississippi, Missouri, Ohio, South Dakota, Tennessee, Texas, Utah, Virginia, and Wisconsin)6—necessitating two trips to the abortion clinic. All 14 of these states have abortion percentages below the national average.
Thirty-six states and districts do not use public funds to pay for abortions—except where federally mandated to do so.7 This would be when the mother’s life is in danger or the pregnancy resulted from rape. Twelve states do not allow private insurance plans to cover abortion, unless the mother’s life is in danger. Eleven states do not allow family planning funds to be paid out to abortion providers.8
State-Level Abortion Bans
Six states have enacted “trigger laws” which would automatically ban abortion within the state should Roe v. Wade be reversed (Arkansas, Kentucky, Louisiana, Mississippi, North Dakota & South Dakota).9 Nine more states have similar legislation in process (Alabama, Georgia, Indiana, Missouri, Oklahoma, South Carolina, Tennessee, Texas & Washington).10 Seven others still have old abortion bans on the books which would theoretically go into effect at Roe’s reversal (Arizona, Massachusetts, Michigan, New Mexico, Rhode Island, West Virginia & Wisconsin).11 Three states have gone the other way (New York, Vermont, and Illinois)—passing laws which would keep abortion legal even in the absence of Roe.12 Finally, seven states passed early abortion bans in 2019 (Alabama, Georgia, Kentucky, Louisiana, Mississippi, Missouri & Ohio).13 Because these bans are in defiance of federal mandate, they are essentially unenforceable—but they could wind up forcing the Supreme Court to again revisit Roe v. Wade. Most of the 2019 abortion bans prohibit abortion after 6-weeks gestation. Alabama is the only state to ban abortion at all stages of pregnancy.
State-by-State Abortion Restrictions:
|State||Parental Consent Required||Counseling Required||Mandatory Waiting Period||Does Not Publicly Fund Abortion||Abortion Ban Passed or in Process|
This page was last updated on July 24, 2019. To cite this page in a research paper, visit: "Citing Abort73 as a Source."
- The Guttmacher Institute. “An Overview of Consent to Reproductive Health Services by Young People,” (July 1, 2019) https://www.guttmacher.org/state-policy/explore/overview-minors-consent-law.
- Among reporting states and districts, 557,742 abortions occurred in 2015; only 26,575 were performed on women aged 18 or younger: https://www.cdc.gov/mmwr/volumes/67/ss/ss6713a1.htm#F2_down (Tables 3 & 5)
- The Guttmacher Institute. “Counseling and Waiting Periods for Abortion,” (July 1, 2019) https://www.guttmacher.org/state-policy/explore/counseling-and-waiting-periods-abortion.
- The Guttmacher Institute. “State Family Planning Funding Restrictions,” (July 1, 2019) https://www.guttmacher.org/state-policy/explore/state-family-planning-funding-restrictions.
- The Guttmacher Institute. “State Funding of Abortion Under Medicaid,” (July 1, 2019) https://www.guttmacher.org/state-policy/explore/state-funding-abortion-under-medicaid.
- Kate Smith. “Abortion would automatically be illegal in these states if Roe v. Wade is overturned,” (CBS News, April 22, 2019) https://www.cbsnews.com/news/new-abortion-law-abortion-clinic-automatically-illegal-roe-v-wade-overturned-2019-04-22/.
- Associated Press. “States With Laws Still on the Books That Would Ban Abortion,” (U.S. News & World Report, July 12, 2018) https://www.usnews.com/news/politics/articles/2018-07-12/states-with-laws-still-on-the-books-that-would-ban-abortion.
- Mara Gordon & Alyson Hurt. “Early Abortion Bans: Which States Have Passed Them?,” (NPR, June 5, 2019) https://www.npr.org/sections/health-shots/2019/06/05/729753903/early-abortion-bans-which-states-have-passed-them.
- U.S. Abortion Law: An overview of federal abortion rulings in the United States.
- Roe v. Wade | Constitution | Supreme Court | Planned Parenthood | Prenatal Development | Abortion Risks | Fetal Pain | Conception