Summary
- The U.S. Supreme Court reversed 49 years of precedent in Dobbs v. Jackson
- The ruling gives states the freedom to regulate abortions as they see fit
- As a result, the country now has a wide variation in abortion laws by state
U.S. Supreme Court Abortion Rulings
The issue of abortion has been a political football since the Supreme Court’s landmark decision in Roe v. Wade in 1973, which established nationwide protections for women and unborn fetuses. Under Roe, state regulations had to respect a trimester framework that balanced competing interests at each pregnancy stage.
During the first trimester, wherein the fetus is fully dependent on its mother, the woman’s right to end her pregnancy would take precedence. States could not stop or unduly burden her right to an abortion.
During the second trimester, states needed to balance the woman’s and fetus’s interests. They could regulate abortions, but they could not outlaw them altogether at this stage.
It is during the third trimester that a fetus achieves viability, meaning it can survive without its mother. The fetus’s right to life took precedence here over the mother’s right to end the pregnancy, except in instances when her life or health were endangered.
The court’s decision in Dobbs v. Jackson in 2022 overturned Roe, completely unending that system. States are now allowed to adopt whatever framework fulfills their interests. In other words, they have the freedom to establish whatever abortion bans (or protections) a majority of their legislators can pass.
Many states moved quickly to exercise their newfound autonomy, causing abortion laws to vary widely by state. These new regulations have not been passed because of concerns over falling birth rates; they are based strictly on moral grounds.
Abortion Laws by State
Even before the Dobbs decision, states had varying abortion laws, and they would propose restrictions and file court cases every year in attempts to invalidate the framework established by Roe. Many states had specific parental notification requirements, waiting periods, and mandatory counseling in place. However, they could not completely ban abortions during the first or second trimesters before Dobbs.
Since then, states have passed laws that range from banning all abortions (and even threatening to ban travel to obtain an abortion) to enshrining the Roe protections in state constitutions.
With that in mind, the following legal restrictions exist in 2024:
Where Is Abortion Illegal?
During its time, the Roe v. Wade framework was often mischaracterized (both deliberately and unintentionally) as prohibiting all state action on abortion. However, that wasn’t the case; states could ban third-trimester abortions so long as they provided exceptions for threats to the life or health of the mother.
Dobbs has been similarly mischaracterized. It is sometimes presented as a triumph of states’ rights, allowing them to permit or restrict abortions as they see fit. In practice, though, states were always free to permit abortions as they saw fit.
The things Dobbs allows states to do are as follows, neither of which were permitted under Roe:
- Restrict or ban abortions during the first and second trimesters
- Enact total bans without exceptions
Thus, in characterizing abortions as illegal, legal experts typically look at bans that start during the first trimester (even before the mother realizes she is pregnant) that either literally or effectively prevent abortions in the state.
On that note, the following 14 states have made all abortions illegal:
- Alabama
- Arkansas
- Idaho
- Indiana
- Kentucky
- Louisiana
- Mississippi
- Missouri
- North Dakota
- Oklahoma
- South Dakota
- Tennessee
- Texas
- West Virginia
Another six states have total bans that occur before or at the end of the first trimester:
- Florida
- Georgia
- Iowa
- Nebraska
- North Carolina
- South Carolina
Another two states, Arizona and Utah, have total bans that occur during the second trimester. These bans would have also been invalid under Roe because they burden a woman’s rights and her relationship with her doctors and nurses.
Where Is Abortion Legal?
Nine other states (and Washington D.C.) have abortion laws that might have passed scrutiny under the Roe framework. These states impose either no restrictions on abortion or restrictions that occur at or after viability:
- Alaska
- Colorado
- Maryland
- Michigan
- Minnesota
- New Jersey
- New Mexico
- Oregon
- Vermont
The remaining states have stuck with the Roe framework, allowing abortions up to the third trimester or viability:
- California
- Connecticut
- Delaware
- Hawaii
- Illinois
- Kansas
- Maine
- Massachusetts
- Montana
- Nevada
- New Hampshire
- New York
- Ohio
- Pennsylvania
- Rhode Island
- Virginia
- Washington
- Wisconsin
- Wyoming
These states also provide exceptions to the bans at viability or during the third trimester for the mother’s life or health.
Steps Toward Uniformity
One of the benefits of Roe was that it established a basic, inviolable right that all states had to respect. Even when states placed conditions on second-trimester abortions, they still had to allow them. There was value in that level of uniformity, to the point that advocates and lawyers on both sides have argued for a reestablishment of that uniformity through a federal abortion law.
Advocates against abortion access have proposed a national abortion ban. However, such a ban would be logically inconsistent with their prior insistence that Roe was invalid because it violated states’ rights.
The thing is, such a ban could still gain traction in Congress simply because less populous states, like West Virginia, have the same number of senators as those with greater populations, like California.
Similarly, advocates for women’s rights have proposed a federal abortion law that would restore the Roe framework across all states. But again, the legal basis for a national law is murky given that the Dobbs decision puts matters into the hands of state legislators, not the federal government.
Contact ConsumerShield to Learn More
Many questions still abound regarding how far states can go in restricting abortion access and enforcing such laws. ConsumerShield helps families and doctors understand their legal rights and find an attorney that will protect them. Contact us for a free case review and attorney referral.
