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What is the current policy on abortion in the US?

Abortion has been legal with restrictions in the US since the 1973 landmark Supreme Court decision in Roe v Wade, but that right is gravely under threat.

Abortion policy landscape in the US

A nearly five-decade old Supreme Court precedent set by Roe v Wade establishing the right to legally have an abortion could potentially be overturned in the very near future. In an unprecedented action, a reportedly full draft opinion offered by Justice Samuel Alito which defined the 1973 decision as “egregiously wrong from the start” was leaked.

It isn’t the final opinion that the court will hand down sometime this summer, but the five members of the Court believed to be on the majority have professed strong views against the precedent. Should the final decision go all the way in reversing the established precedent instead of simply allowing more limitations on abortion, the procedure would become immediately illegal in numerous states.

Abortion is legal with states allowed to impose some restrictions

Abortion has been legal in the US free from excessive government restriction up until fetal viability since the Supreme Court handed down the 1973 landmark decision in Roe v Wade. Over the nearly five decades since that right was established, anti-abortion activists and lawmakers have worked to chip away the precedent that made it possible with the ultimate goal of overturning it.

Their argument is that the right is not established under federal law but put in place by activist judges. Furthermore that it is up to the states to determine the legality of the procedure. However, the high court has repeatedly upheld Roe in the face of challenges such as in Planned Parenthood v Casey preventing states from putting undue burden on those who wish to seek an early termination of a pregnancy.

But more recent laws to restrict access to legal abortion coming out of the states have been designed to bypass judicial review such as a recent Texas law. The Supreme Court in a 5 to 4 decision refused to put an emergency hold on the law, essentially outlawing abortion after six weeks of pregnancy.

However, most legislation is designed as a frontal assault on Roe like the Mississippi abortion law which the Supreme Court heard a challenge to this fall and whose draft opinion was leaked. That document stated that both “Roe and Casey must be overruled” and that “it is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”

Abortion would become illegal in at least 25 states

According to the Center for Reproductive Rights, an abortion-rights advocacy group, there are 25 states and three territories they classify as “hostile” where upon Roe being overturned abortion could be immediately prohibited. Of those states 13 have “trigger laws” on the books which would either restrict or ban the procedure as soon as Roe is gone.

These states and territories include Alabama, American Samoa, Arizona, Arkansas, Georgia, Guam, Idaho, Indiana, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Nebraska, North Carolina, North Dakota, the Northern Mariana Islands, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, Wisconsin, and Wyoming.

States that ban abortion at week 6 or earlier

There are eleven states that have passed legislation that would essentially ban abortion by the sixth week of pregnancy, referred to by anti-abortion proponents as “heartbeat” and sometimes “fetal heartbeat” legislation. Two of those, Iowa and North Dakota have their laws permanently enjoined.

In Iowa, the stay on the anti-abortion law would remain unless the State Supreme Court overturns its 2018 decision when it decides on another law being challenged passed in 2020. The injunction on North Dakota’s six-week ban was upheld by the Supreme Court and could be enacted within 30 days of Roe being overruled.

According to the Guttmacher Institute, a pro-choice research organization, the other states that have banned abortion at six weeks include Georgia, Iowa, Kentucky, Mississippi, North Dakota, Ohio, South Carolina, Tennessee and Texas. The Texas law is the only one that is currently in effect while the others are being litigated. The South Carolina law is the only one that makes exceptions in instances of rape or incest.

Missouri has a law on the books that bans abortion after eight weeks of pregnancy which could go into effect if Roe is overturned. Alabama, Arkansas, Louisiana, Oklahoma and Utah all have laws that prohibit abortions from the moment of conception. Oklahoma recently passed a new law outlawing performing or attempting to perform an abortion a felony.

Of the states where the Guttmacher Institute says abortion is likely or certain to become illegal without Roe, four others, Florida, Indiana, Montana, and Nebraska, would most likely move quickly to implement a ban on abortions.

Women will need to seek abortions in states where it is protected

There are 22 states where access to abortion is protected by legislation, eight of which have “expanded access”. These include California, Connecticut, Hawaii, New Jersey, New York, Oregon, Vermont, and Washington. The other 14 allow abortions by law but have some limitations in place which are Alaska, Colorado, Delaware, the District of Columbia, Florida, Illinois, Iowa, Kansas, Maine, Maryland, Massachusetts, Minnesota, Montana, Nevada, and Rhode Island.

Three states and two territories have no protections for abortions, but access to abortion should still remain legal were Roe to be overturned. Theses include New Hampshire, New Mexico, Puerto Rico, U.S. Virgin Islands, and Virginia.

Access to abortion is considered a human right

If the Supreme Court overturns Roe and Casey and abortion were to become illegal, the US would be going against the grain. Over the past 25 years, mostly recognizing that abortion is a human right, 50 countries have expanded access to the procedure.

Several international and human rights organizations as well as legal experts submitted “friend-of-the-court” briefs in favor of upholding Roe once again. As a signatory of the United Nations convention on Human Rights, the US could find itself in breach those laws.

“Treaty body jurisprudence has indicated that denying women access to abortion can amount to violations of the rights to health, privacy and, in certain cases, the right to be free from cruel, inhumane and degrading treatment,” states the UN Office of the High Commissioner for Human Rights. “Although States parties may adopt measures designed to regulate voluntary terminations of pregnancy, such measures must not result in violation of the right to life of a pregnant woman or girl, or her other rights under the Covenant.”


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