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Abortion in the United States is legal, via the landmark case of Roe v. Wade. However, individual states can regulate/limit the use of abortion, or create "trigger laws," which is a law that makes abortion illegal within the first and second trimesters, but would only be taken into effect and enforced upon after Roe is overturned by the US Supreme Court. Currently, 6 states have trigger laws and 3 other states have laws intending on criminalizing abortion.[1]

Contents

Current legal status nationwide

Abortion laws in the U.S. prior to Roe.      Illegal      Legal in case of rape      Legal in case of danger to woman's health      Legal in case of danger to woman's health, rape or incest, or likely damaged fetus      Legal on request
Parental notification and consent laws in the U.S.      No parental notification or consent laws      One parent must be informed beforehand      Both parents must be informed beforehand      One parent must consent beforehand      Both parents must consent beforehand      Parental notification law currently enjoined      Parental consent law currently enjoined
Mandatory waiting period laws in the U.S.      No mandatory waiting period      Waiting period of less than 24 hours      Waiting period of 24 hours or more      Waiting period law currently enjoined
Abortion counseling laws in the U.S.      No mandatory counselling      Counselling in person, by phone, mail, and/or other      Counselling in person only      Counselling law enjoined
Fetal homicide laws in the fifty states      "Homicide" or "murder".      Other crime against fetus.      Depends on age of fetus.      Assaulting pregnant woman.

The current judicial interpretation of the U.S. Constitution regarding abortion in the United States, following the Supreme Court of the United States's 1973 landmark decision in Roe v. Wade, and subsequent companion decisions, is that abortion is legal but may be restricted by the states to varying degrees. States have passed laws to restrict late term abortions, require parental notification for minors, and mandate the disclosure of abortion risk information to patients prior to the procedure.[2]

The key, deliberated article of the U.S. Constitution is Article 14, Section 1, which states that

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.[3]

The official report of the U.S. Senate Judiciary Committee, issued in 1983 after extensive hearings on the Human Life Amendment (proposed by Senators Orrin Hatch and Thomas Eagleton), stated what substantially remains true today:

Thus, the [Judiciary] Committee observes that no significant legal barriers of any kind whatsoever exist today in the United States for a woman to obtain an abortion for any reason during any stage of her pregnancy.[4]

One aspect of the legal abortion regime now in place has been determining when the fetus is "viable" outside the womb as a measure of when the "life" of the fetus is its own (and therefore subject to being protected by the state). In the majority opinion delivered by the court in Roe v. Wade, viability was defined as "potentially able to live outside the woman's womb, albeit with artificial aid. Viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks." When the court ruled in 1973, the then-current medical technology suggested that viability could occur as early as 24 weeks. Advances over the past three decades have allowed fetuses that are a few weeks less than 24 weeks old to survive outside the woman's womb. These scientific achievements, while life-saving for premature babies, have made the determination of being "viable" somewhat more complicated. As of 2006, the youngest child to survive a premature birth in the United States was a girl born at the Baptist Hospital of Miami at 21 weeks and 6 days' gestational age.[5]

In comparison to other developed countries, the procedure is more available in the United States in terms of how late the abortion can legally be performed. However, in terms of other aspects such as government funding, privacy for non-adults, or geographical access, some U.S. states are far more restrictive. In Europe, abortion is usually only allowed up to 12 weeks (18 weeks in Sweden, 21 weeks in the Netherlands, 24 weeks in Great Britain). In France, unless the fetus is severely deformed or the woman's health is directly at risk, any abortion after the first twelve weeks is illegal. There are no laws or restrictions regulating abortion in Canada, while Australia places heavier restrictions on the procedure. In many countries the right to abortion has been legalized by respective parliaments, while in the U.S. the right to abortion has been deemed a part of a constitutional right to privacy by the Supreme Court.

Because of the split between federal and state law, legal access to abortion continues to vary somewhat by state. Geographic availability, however, varies dramatically, with 87 percent of U.S. counties having no abortion provider.[6] Moreover, due to the Hyde Amendment, many state health programs which poor women rely on for their health care do not cover abortions; currently only 17 states (including California, Illinois and New York) offer or require such coverage.[7] The 1992 case of Planned Parenthood v. Casey overturned Roe's strict trimester formula, but reemphasized the right to abortion as grounded in the general sense of liberty and privacy protected under the Due Process Clause of the Fourteenth Amendment to the United States Constitution: "If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." Advancements in medical technology meant that a fetus might be considered viable, and thus have some basis of a right to life, at 22 or 23 weeks rather than at the 28 that was more common at the time Roe was decided. For this reason, the old trimester formula was ruled obsolete, with a new focus on viability of the fetus.Since 1995, led by Congressional Republicans, the U.S. House of Representatives and U.S. Senate have moved several times to pass measures banning the procedure of intact dilation and extraction, also commonly known as partial birth abortion. After several long and emotional debates on the issue, such measures passed twice by wide margins, but President Bill Clinton vetoed those bills in April 1996 and October 1997 on the grounds that they did not include health exceptions. Congressional supporters of the bill argue that a health exception would render the bill unenforceable, since the Doe v. Bolton decision defined "health" in vague terms, justifying any motive for obtaining an abortion. Subsequent Congressional attempts at overriding the veto were unsuccessful.

On October 2, 2003, with a vote of 281-142, the House again approved a measure banning the procedure, called the Partial-Birth Abortion Ban Act. Through this legislation, a doctor could face up to two years in prison and face civil lawsuits for performing such an abortion. A woman who undergoes the procedure cannot be prosecuted under the measure. The measure contains an exemption to allow the procedure if the woman's life is threatened. On October 21, 2003, the United States Senate passed the same bill by a vote of 64-34, with a number of Democrats joining in support. The bill was signed by President George W. Bush on November 5, 2003, but a federal judge blocked its enforcement in several states just a few hours after it became public law. The Supreme Court upheld the nationwide ban on the procedure in the case Gonzales v. Carhart on April 18, 2007. The 5-4 ruling said the Partial Birth Abortion Ban Act does not conflict with previous Court decisions regarding abortion.

The Supreme Court continues to grapple with cases on the subject. On April 18, 2007 it issued a ruling in the case of Gonzales v. Carhart, involving a Federal law entitled the Partial-Birth Abortion Ban Act of 2003 which President George W. Bush had signed into law. The United States Supreme Court upheld the 2003 partial-birth abortion ban by a narrow majority of 5-4. The law stipulated that anyone breaking the law would get a prison sentence up to 2.5 years. The Supreme Court voted to uphold the national ban on the procedure opponents call "partial-birth abortion" (called intact dilation and extraction by the medical establishment), marking the first time the court has allowed a ban on any type of abortion since 1973. The swing vote, which came from moderate justice Anthony Kennedy, was joined by Justices Antonin Scalia, Clarence Thomas, and the two recent appointees, Samuel Alito and Chief Justice John Roberts.

The legality of abortion in the United States is frequently a major issue in nomination battles for the U.S. Supreme Court. However, nominees typically remain silent on the issue during their hearings, because it is an issue that may come before them as judges. Various states have passed legislation on the subject of feticide.

State attempts to ban abortion

Louisiana

On June 19, 2006, Governor Kathleen Blanco signed into law a ban on most forms of abortion (unless the life of the mother was in danger or her health would be permanently damaged) once it passed the state legislature. Although she felt exclusions for rape or incest would have "been reasonable," she felt she should not veto based on those reasons. The bill would only go into effect if the United States Supreme Court reversed Roe v. Wade. Louisiana's measure would allow the prosecution of any person who performed or aided in an abortion. The penalties include up to 10 years in prison and a maximum fine of $100,000.[8]

South Dakota

In 2004, a bill outlawing abortion passed both houses of the legislature, but was vetoed by the Governor due to a technicality. The state's legislature subsequently passed five laws curtailing the legality of abortion in 2005 [1]. The majority of a legislative "task force" [2] then issued a report recommending that the Legislature illegalize all abortions, which would lead to a challenge of the constitutionality of Roe v. Wade in the United States Supreme Court. A separate minority report criticizing the process and reaching different conclusions was also released [3].

In February 2006, the Legislature passed the Women's Health and Human Life Protection Act, which was signed into law by Governor Mike Rounds on March 6, 2006. This law would have forbidden pregnancy termination under virtually every circumstance, including for victims of rape and incest, with the exception of "a medical procedure designed or intended to prevent the death of a pregnant mother." Physicians performing such procedures would have been required to "...make reasonable medical efforts under the circumstances to preserve both the life of the mother and the life of her unborn child."

The act had specifically defined pregnancy as beginning at the point of conception rather than at implantation into the uterine wall (see beginning of pregnancy controversy), which might have meant that WHHLPA applied to emergency contraception and possibly all forms of hormonal contraception.

Several members of the South Dakota legislative majority, as well as Governor Rounds, acknowledged that the overt goal of WHHLPA was to get the Supreme Court to overturn Roe [4] per the recommendation of the task force (the Supreme Court at that time was shifting in a conservative direction, one that might have been more amenable to overturning Roe).

A referendum to repeal the Women's Health and Human Life Protection Act was placed on ballot for the November 2006 statewide election due to a successful petition drive by the organization South Dakota Healthy Families. On May 30, over 38,000 petition signatures were filed, more than twice the 17,000 required to place a measure on the ballot. On November 7, WHHLPA was repealed by the South Dakota electorate; the vote was 56%-44% favoring repeal. [5]

Mississippi

On February 27, 2006, Mississippi’s House Public Health Committee voted to approve a ban on abortion, and that bill died after the House and Senate failed to agree on compromise legislation.[9]

Colorado

The initiative was proposed jointly by Kristine Burton and Michael Burton[10] of Colorado for Equal Rights.[11] Colorado Amendment 48 was a proposed initiative to amend the definition of a person to "any human being from the moment of fertilization." On November 4, 2008, the initiative was turned down by 73.3% of the voters, despite the fact that Colorado is a purple state.[12]

North Dakota

North Dakota's HB 1572, otherwise known as the Personhood of Children Act, was a bill in the North Dakota Legislature which aims to "provide equality and rights to all human beings at every stage of biological development". This step could eventually eliminate all types of abortion for nearly any reason in the state of North Dakota.[13] It would allocate rights of "the pre-born, partially born." If it had passed, it would have likely been used to challenge Roe v. Wade.[14]

This legislation, sponsored by State Representative Dan Ruby, passed the North Dakota House of Representatives on February 17, 2009 by a vote of 51-41. On April 3, 2009 the North Dakota Senate defeated HB 1572 in a 29 to 16 vote.

State by State Table

State Bans of Abortion Limits on Abortion Pro-Choice Protection
Status Before "Roe" Current Status[15] General Limits Limits on Minors
Completely Illegal Illegal with Limits Trigger Law on Any Abortion Trigger Law on Late Term Abortion Waiting Period Counseling  % of Counties Without Provider At least One Parent Informed At Least One Parent Consent Freedom Act[16] Constitutional Protection[17] Grade given by NARAL[18]
Flag of Alabama.svg Alabama No Yes No Yes Yes Yes 93%[19] Yes Yes No No F
Flag of Alaska.svg Alaska No No No Yes None Yes 83%[20] No No No Yes B-
Flag of Arizona.svg Arizona Yes No No Yes None None 73%[21] Yes Yes No Yes B-
Flag of Arkansas.svg Arkansas No Yes No Yes Yes Yes 97%[22] Yes Yes No No F
Flag of California.svg California No Yes No No None None 41%[23] No No Yes Yes A+
Flag of Colorado.svg Colorado No Yes No No None None 78%[24] No No No No D+
Flag of Connecticut.svg Connecticut Yes No No No None None 25%[25] No No Yes Yes A
Flag of Delaware.svg Delaware No Yes No No None Yes 33%[26] Yes No No No C+
Flag of Florida.svg Florida No Yes No Yes None None 69%[27] Yes No No Yes D
Flag of Georgia (U.S. state).svg Georgia No Yes No No Yes Yes 92%[28] Yes No No No D
Flag of Hawaii.svg Hawaii No No No No None None 20%[29] No No Yes No A
Flag of Idaho.svg Idaho Yes No No Yes Yes Yes 93%[30] No No No No F
Flag of Illinois.svg Illinois Yes No No Yes None None 92%[31] No No No Yes B-
Flag of Indiana.svg Indiana Yes No No Yes Yes Yes 93%[32] Yes Yes No Yes F
Flag of Iowa.svg Iowa Yes No No Yes None None 93%[33] Yes No No No C+
Flag of Kansas.svg Kansas Yes No No Yes Yes Yes 96%[34] Yes No No No D-
Flag of Kentucky.svg Kentucky Yes No No Yes Yes Yes 98%[35] Yes Yes No No F
Flag of Louisiana.svg Louisiana Yes No Yes Yes Yes Yes 92%[36] Yes Yes No No F
Flag of Maine.svg Maine Yes No No No None None 63%[37] Yes Yes Yes No A
Flag of Maryland.svg Maryland No Yes No No None None 58%[38] Yes No Yes No A
Flag of Massachusetts.svg Massachusetts No Yes No No None Yes 14%[39] Yes Yes No Yes B-
Flag of Michigan.svg Michigan Yes No No Yes Yes Yes 83%[40] Yes Yes No No F
Flag of Minnesota.svg Minnesota Yes No No No Yes Yes 95%[41] Yes No No Yes C+
Flag of Mississippi.svg Mississippi No Yes No Yes Yes Yes 99%[42] Yes Yes No No F
Flag of Missouri.svg Missouri Yes No Yes Yes Yes None 96%[43] Yes Yes No No F
Flag of Montana.svg Montana Yes No No No None None 91%[44] No No No Yes A-
Flag of Nebraska.svg Nebraska Yes No No Yes Yes Yes 97%[45] Yes No No No F
Flag of Nevada.svg Nevada Yes No No No None None 88%[46] No No Yes No A-
Flag of New Hampshire.svg New Hampshire Yes No No No None None 50%[47] No No No No A-
Flag of New Jersey.svg New Jersey Yes No No Yes None None 19%[48] No No No Yes A-
Flag of New Mexico.svg New Mexico No Yes No No None None 88%[49] No No No Yes A-
Flag of New York.svg New York No No No No None None 44%[50] No No No No A-
Flag of North Carolina.svg North Carolina No Yes No No None None 86%[51] Yes Yes No No D+
Flag of North Dakota.svg North Dakota Yes No No Yes Yes Yes 98%[52] Yes Yes No No F
Flag of Ohio.svg Ohio Yes No Yes Yes Yes Yes 90%[53] Yes No No No F
Flag of Oklahoma.svg Oklahoma Yes No No Yes Yes Yes 96%[54] Yes No No No F
Flag of Oregon.svg Oregon No Yes No No None None 78%[55] No No No Yes A
Flag of Pennsylvania.svg Pennsylvania Yes No No No Yes Yes 78%[56] Yes Yes No No F
Flag of Rhode Island.svg Rhode Island Yes No No Yes No Yes 80%[57] Yes Yes No No D+
Flag of South Carolina.svg South Carolina No Yes No Yes Yes Yes 91%[58] Yes Yes No No F
Flag of South Dakota.svg South Dakota Yes No No* Yes None None 98%[59] Yes No No No F
Flag of Tennessee.svg Tennessee Yes No No Yes None None 94%[60] Yes Yes No Yes D+
Flag of Texas.svg Texas Yes No No No Yes Yes 93%[61] Yes Yes No No D+
Flag of Utah.svg Utah Yes No Yes Yes Yes Yes 93%[62] Yes No No No F
Flag of Vermont.svg Vermont Yes No No No None None 43%[63] No No No Yes A-
Flag of Virginia.svg Virginia No Yes Yes Yes Yes Yes 86%[64] Yes Yes No No F
Flag of Washington.svg Washington No No No No None None 67%[65] No No Yes No A+
Flag of West Virginia.svg West Virginia Yes No No Yes Yes Yes 96%[66] Yes No No Yes B
Flag of Wisconsin.svg Wisconsin Yes No No Yes Yes Yes 93%[67] Yes Yes No No D+
Flag of Wyoming.svg Wyoming Yes No No No None None 96%[68] Yes Yes No No D+

See also

References

  1. ^ http://www.stateline.org/live/ViewPage.action?siteNodeId=136&languageId=1&contentId=121780
  2. ^ Interactive maps comparing U.S. abortion restrictions by state, LawServer
  3. ^ "The Constitution of the United States of America: As Amended". 2007-07-25. http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110_cong_documents&docid=f:hd050.pdf. Retrieved 2009-02-17.  
  4. ^ Report, Committee on the Judiciary, U.S. Senate, on Senate Joint Resolution 3, 98th Congress, 98-149, June 7, 1983, p. 6.
  5. ^ Baptist Hospital of Miami, Fact Sheet (2006).
  6. ^ "Access to Abortion" (PDF). National Abortion Federation. 2003. http://www.prochoice.org/pubs_research/publications/downloads/about_abortion/access_abortion.pdf. Retrieved 2007-06-17.  
  7. ^ "Public Funding for Abortion" (map)
  8. ^ http://www.nytimes.com/2006/06/07/us/07abort.html?_r=1
  9. ^ MacIntyre, Krystal. "Mississippi abortion ban bill fails as legislators miss deadline for compromise", Jurist News Archive (2006-03-28). Retrieved 2007-01-23.
  10. ^ Statement of Sufficiency (pdf). Secretary of State. State of Colorado. May 29, 2008.
  11. ^ Personhood Initiative '08. Colorado for Equal Rights.
  12. ^ http://projects.rockymountainnews.com/pages/news/politics/elections/results/colorado-issue.html
  13. ^ http://www.standardnewswire.com/news/22733892.html
  14. ^ "US state's 'personhood' law would hit birth control: opponents" 2009-02-18 AFP
  15. ^ http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/maps-and-charts/map.jsp?mapID=27
  16. ^ http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/maps-and-charts/map.jsp?mapID=23
  17. ^ http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/maps-and-charts/map.jsp?mapID=24
  18. ^ http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/introduction/whodecides2009reportcard.pdf
  19. ^ http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/alabama.html
  20. ^ http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/Alaska.html
  21. ^ http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/arizona.html
  22. ^ http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/arkansas.html
  23. ^ http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/california.html
  24. ^ http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/colorado.html
  25. ^ http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/connecticut.html
  26. ^ http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/delaware.html
  27. ^ http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/florida.html
  28. ^ http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/Georgia.html
  29. ^ http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/hawaii.html
  30. ^ http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/idaho.html
  31. ^ http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/illinois.html
  32. ^ http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/indiana.html
  33. ^ http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/iowa.html
  34. ^ http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/kansas.html
  35. ^ http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/kentucky.html
  36. ^ http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/louisiana.html
  37. ^ http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/maine.html
  38. ^ http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/maryland.html
  39. ^ http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/massachusetts.html
  40. ^ http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/michigan.html
  41. ^ http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/minnesota.html
  42. ^ http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/mississippi.html
  43. ^ http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/missouri.html
  44. ^ http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/montana.html
  45. ^ http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/nebraska.html
  46. ^ http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/nevada.html
  47. ^ http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/new-hampshire.html
  48. ^ http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/new-jersey.html
  49. ^ http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/new-mexico.html
  50. ^ http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/new-york.html
  51. ^ http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/north-carolina.html
  52. ^ http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/north-dakota.html
  53. ^ http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/ohio.html
  54. ^ http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/oklahoma.html
  55. ^ http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/oregon.html
  56. ^ http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/pennsylvania.html
  57. ^ http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/rhode-island.html
  58. ^ http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/south-carolina.html
  59. ^ http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/south-dakota.html
  60. ^ http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/tennessee.html
  61. ^ http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/texas.html
  62. ^ http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/utah.html
  63. ^ http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/vermont.html
  64. ^ http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/virginia.html
  65. ^ http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/washington.html
  66. ^ http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/west-virginia.html
  67. ^ http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/wisconsin.html
  68. ^ http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/wyoming.html

External links

Legal

Abortion in the United States is legal, via the landmark case of Roe v. Wade. However, individual states can regulate/limit the use of abortion, or create "trigger laws," which is a law that makes abortion illegal within the first and second trimesters, but would only be taken into effect and enforced upon after Roe is overturned by the US Supreme Court. Currently, 6 states have trigger laws and 3 other states have laws intending on criminalizing abortion.[1]

Contents

Current legal status nationwide


The current judicial interpretation of the U.S. Constitution regarding abortion in the United States, following the Supreme Court of the United States's 1973 landmark decision in Roe v. Wade, and subsequent companion decisions, is that abortion is legal but may be restricted by the states to varying degrees. States have passed laws to restrict late term abortions, require parental notification for minors, and mandate the disclosure of abortion risk information to patients prior to the procedure.[2]

The key, deliberated article of the U.S. Constitution is Article 14, Section 1, which states that

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.[3]

The official report of the U.S. Senate Judiciary Committee, issued in 1983 after extensive hearings on the Human Life Amendment (proposed by Senators Orrin Hatch and Thomas Eagleton), stated what substantially remains true today:

Thus, the [Judiciary] Committee observes that no significant legal barriers of any kind whatsoever exist today in the United States for a woman to obtain an abortion for any reason during any stage of her pregnancy. [4]

One aspect of the legal abortion regime now in place has been determining when the fetus is "viable" outside the womb as a measure of when the "life" of the fetus is its own (and therefore subject to being protected by the state). In the majority opinion delivered by the court in Roe v. Wade, viability was defined as "potentially able to live outside the woman's womb, albeit with artificial aid. Viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks." When the court ruled in 1973, the then-current medical technology suggested that viability could occur as early as 24 weeks. Advances over the past three decades have allowed fetuses that are a few weeks less than 24 weeks old to survive outside the woman's womb. These scientific achievements, while life-saving for premature babies, have made the determination of being "viable" somewhat more complicated. As of 2006, the youngest child to survive a premature birth in the United States was a girl born at the Baptist Hospital of Miami at 21 weeks and 6 days' gestational age.[5]

In comparison to other developed countries, the procedure is more available in the United States in terms of how late the abortion can legally be performed. However, in terms of other aspects such as government funding, privacy for non-adults, or geographical access, some U.S. states are far more restrictive. In Europe, abortion is usually only allowed up to 12 weeks (18 weeks in Sweden, 21 weeks in the Netherlands, 24 weeks in Great Britain). In France, unless the fetus is severely deformed or the woman's health is directly at risk, any abortion after the first twelve weeks is illegal. There are no laws or restrictions regulating abortion in Canada, while Australia places heavier restrictions on the procedure. In many countries the right to abortion has been legalized by respective parliaments, while in the U.S. the right to abortion has been deemed a part of a constitutional right to privacy by the Supreme Court.

Because of the split between federal and state law, legal access to abortion continues to vary somewhat by state. Geographic availability, however, varies dramatically, with 87 percent of U.S. counties having no abortion provider.[6] Moreover, due to the Hyde Amendment, many state health programs which poor women rely on for their health care do not cover abortions; currently only 17 states (including California, Illinois and New York) offer or require such coverage.[7] The 1992 case of Planned Parenthood v. Casey overturned Roe's strict trimester formula, but reemphasized the right to abortion as grounded in the general sense of liberty and privacy protected under the Due Process Clause of the Fourteenth Amendment to the United States Constitution: "If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." Advancements in medical technology meant that a fetus might be considered viable, and thus have some basis of a right to life, at 22 or 23 weeks rather than at the 28 that was more common at the time Roe was decided. For this reason, the old trimester formula was ruled obsolete, with a new focus on viability of the fetus.Since 1995, led by Congressional Republicans, the U.S. House of Representatives and U.S. Senate have moved several times to pass measures banning the procedure of intact dilation and extraction, also commonly known as partial birth abortion. After several long and emotional debates on the issue, such measures passed twice by wide margins, but President Bill Clinton vetoed those bills in April 1996 and October 1997 on the grounds that they did not include health exceptions. Congressional supporters of the bill argue that a health exception would render the bill unenforceable, since the Doe v. Bolton decision defined "health" in vague terms, justifying any motive for obtaining an abortion. Subsequent Congressional attempts at overriding the veto were unsuccessful.

On October 2, 2003, with a vote of 281-142, the House again approved a measure banning the procedure, called the Partial-Birth Abortion Ban Act. Through this legislation, a doctor could face up to two years in prison and face civil lawsuits for performing such an abortion. A woman who undergoes the procedure cannot be prosecuted under the measure. The measure contains an exemption to allow the procedure if the woman's life is threatened. On October 21, 2003, the United States Senate passed the same bill by a vote of 64-34, with a number of Democrats joining in support. The bill was signed by President George W. Bush on November 5, 2003, but a federal judge blocked its enforcement in several states just a few hours after it became public law. The Supreme Court upheld the nationwide ban on the procedure in the case Gonzales v. Carhart on April 18, 2007. The 5-4 ruling said the Partial Birth Abortion Ban Act does not conflict with previous Court decisions regarding abortion.

The Supreme Court continues to grapple with cases on the subject. On April 18, 2007 it issued a ruling in the case of Gonzales v. Carhart, involving a Federal law entitled the Partial-Birth Abortion Ban Act of 2003 which President George W. Bush had signed into law. The United States Supreme Court upheld the 2003 partial-birth abortion ban by a narrow majority of 5-4. The law stipulated that anyone breaking the law would get a prison sentence up to 2.5 years. The Supreme Court voted to uphold the national ban on the procedure opponents call "partial-birth abortion" (called intact dilation and extraction by the medical establishment), marking the first time the court has allowed a ban on any type of abortion since 1973. The swing vote, which came from moderate justice Anthony Kennedy, was joined by Justices Antonin Scalia, Clarence Thomas, and the two recent appointees, Samuel Alito and Chief Justice John Roberts.

The legality of abortion in the United States is frequently a major issue in nomination battles for the U.S. Supreme Court. However, nominees typically remain silent on the issue during their hearings, because it is an issue that may come before them as judges. Various states have passed legislation on the subject of feticide.

State attempts to ban abortion

Louisiana

On June 19, 2006, Governor Kathleen Blanco signed into law a ban on most forms of abortion (unless the life of the mother was in danger or her health would be permanently damaged) once it passed the state legislature. Although she felt exclusions for rape or incest would have "been reasonable," she felt she should not veto based on those reasons. The bill would only go into effect if the United States Supreme Court reversed Roe v. Wade. Louisiana's measure would allow the prosecution of any person who performed or aided in an abortion. The penalties include up to 10 years in prison and a maximum fine of $100,000.[8]

South Dakota

Main Article: Women's Health and Human Life Protection Act

In 2004, a bill outlawing abortion passed both houses of the legislature, but was vetoed by the Governor due to a technicality. The state's legislature subsequently passed five laws curtailing the legality of abortion in 2005 [1]. The majority of a legislative "task force" [2] then issued a report recommending that the Legislature illegalize all abortions, which would lead to a challenge of the constitutionality of Roe v. Wade in the United States Supreme Court. A separate minority report criticizing the process and reaching different conclusions was also released [3].

In February 2006, the Legislature passed the Women's Health and Human Life Protection Act, which was signed into law by Governor Mike Rounds on March 6, 2006. This law would have forbidden pregnancy termination under virtually every circumstance, including for victims of rape and incest, with the exception of "a medical procedure designed or intended to prevent the death of a pregnant mother." Physicians performing such procedures would have been required to "...make reasonable medical efforts under the circumstances to preserve both the life of the mother and the life of her unborn child."

The act had specifically defined pregnancy as beginning at the point of conception rather than at implantation into the uterine wall (see beginning of pregnancy controversy), which might have meant that WHHLPA applied to emergency contraception and possibly all forms of hormonal contraception.

Several members of the South Dakota legislative majority, as well as Governor Rounds, acknowledged that the overt goal of WHHLPA was to get the Supreme Court to overturn Roe [4] per the recommendation of the task force (the Supreme Court at that time was shifting in a conservative direction, one that might have been more amenable to overturning Roe).

A referendum to repeal the Women's Health and Human Life Protection Act was placed on ballot for the November 2006 statewide election due to a successful petition drive by the organization South Dakota Healthy Families. On May 30, over 38,000 petition signatures were filed, more than twice the 17,000 required to place a measure on the ballot. On November 7, WHHLPA was repealed by the South Dakota electorate; the vote was 56%-44% favoring repeal. [5]

Mississippi

On February 27, 2006, Mississippi’s House Public Health Committee voted to approve a ban on abortion, and that bill died after the House and Senate failed to agree on compromise legislation.[9]

Colorado

Main Article: Colorado Amendment 48 (2008)

The initiative was proposed jointly by Kristine Burton and Michael Burton[10] of Colorado for Equal Rights.[11] Colorado Amendment 48 was a proposed initiative to amend the definition of a person to "any human being from the moment of fertilization." On November 4th, 2008, the initiative was turned down by 73.3% of the voters, despite the fact that Colorado is a purple state.[12][dead link]

North Dakota

Main Article: North Dakota HB 1572

North Dakota's HB 1572, otherwise known as the Personhood of Children Act, was a bill in the North Dakota Legislature which aims to "provide equality and rights to all human beings at every stage of biological development". This step could eventually eliminate all types of abortion for nearly any reason in the state of North Dakota.[13] It would allocate rights of "the pre-born, partially born." If it had passed, it would have likely been used to challenge Roe v. Wade.[14]

This legislation, sponsored by State Representative Dan Ruby, passed the North Dakota House of Representatives on February 17, 2009 by a vote of 51-41. On April 3, 2009 the North Dakota Senate defeated HB 1572 in a 29 to 16 vote.

State by State Table

State Bans of Abortion Limits on Abortion Pro-Choice Protection
Status Before "Roe" Current Status[15] General Limits Limits on Minors
Completely Illegal Illegal with Limits Trigger Law on Any Abortion Trigger Law on Late Term Abortion Waiting Period Counseling  % of Counties Without Provider At least One Parent Informed At Least One Parent Consent Freedom Act[16] Constitutional Protection[17] Grade given by NARAL[18]
Alabama No Yes No Yes Yes Yes 93%[19] Yes Yes No No F
Alaska No No No Yes None Yes 83%[20] No No No Yes B-
Arizona Yes No No Yes None None 73%[21] Yes Yes No Yes B-
Arkansas No Yes No Yes Yes Yes 97%[22] Yes Yes No No F
California No Yes No No None None 41%[23] No No Yes Yes A+
Colorado No Yes No No None None 78%[24] No No No No D+
Connecticut Yes No No No None None 25%[25] No No Yes Yes A
Delaware No Yes No No None Yes 33%[26] Yes No No No C+
Florida No Yes No Yes None None 69%[27] Yes No No Yes D
Georgia No Yes No No Yes Yes 92%[28] Yes No No No D
Hawaii No No No No None None 20%[29] No No Yes No A
Idaho Yes No No Yes Yes Yes 93%[30] No No No No F
Illinois Yes No No Yes None None 92%[31] No No No Yes B-
Indiana Yes No No Yes Yes Yes 93%[32] Yes Yes No Yes F
Iowa Yes No No Yes None None 93%[33] Yes No No No C+
Kansas Yes No No Yes Yes Yes 96%[34] Yes No No No D-
Kentucky Yes No No Yes Yes Yes 98%[35] Yes Yes No No F
Louisiana Yes No Yes Yes Yes Yes 92%[36] Yes Yes No No F
Maine Yes No No No None None 63%[37] Yes Yes Yes No A
Maryland No Yes No No None None 58%[38] Yes No Yes No A
Massachusetts No Yes No No None Yes 14%[39] Yes Yes No Yes B-
Michigan Yes No No Yes Yes Yes 83%[40] Yes Yes No No F
Minnesota Yes No No No Yes Yes 95%[41] Yes No No Yes C+
Mississippi No Yes No Yes Yes Yes 99%[42] Yes Yes No No F
Missouri Yes No Yes Yes Yes None 96%[43] Yes Yes No No F
Montana Yes No No No None None 91%[44] No No No Yes A-
Nebraska Yes No No Yes Yes Yes 97%[45] Yes No No No F
Nevada Yes No No No None None 88%[46] No No Yes No A-
New Hampshire Yes No No No None None 50%[47] No No No No A-
New Jersey Yes No No Yes None None 19%[48] No No No Yes A-
New Mexico No Yes No No None None 88%[49] No No No Yes A-
New York No No No No None None 44%[50] No No No No A-
North Carolina No Yes No No None None 86%[51] Yes Yes No No D+
North Dakota Yes No No Yes Yes Yes 98%[52] Yes Yes No No F
Ohio Yes No Yes Yes Yes Yes 90%[53] Yes No No No F
Oklahoma Yes No No Yes Yes Yes 96%[54] Yes No No No F
Oregon No Yes No No None None 78%[55] No No No Yes A
Pennsylvania Yes No No No Yes Yes 78%[56] Yes Yes No No F
Rhode Island Yes No No Yes No Yes 80%[57] Yes Yes No No D+
South Carolina No Yes No Yes Yes Yes 91%[58] Yes Yes No No F
South Dakota Yes No No* Yes None None 98%[59] Yes No No No F
Tennessee Yes No No Yes None None 94%[60] Yes Yes No Yes D+
Texas Yes No No No Yes Yes 93%[61] Yes Yes No No D+
Utah Yes No Yes Yes Yes Yes 93%[62] Yes No No No F
Vermont Yes No No No None None 43%[63] No No No Yes A-
Virginia No Yes Yes Yes Yes Yes 86%[64] Yes Yes No No F
Washington No No No No None None 67%[65] No No Yes No A+
West Virginia Yes No No Yes Yes Yes 96%[66] Yes No No Yes B
Wisconsin Yes No No Yes Yes Yes 93%[67] Yes Yes No No D+
Wyoming Yes No No No None None 96%[68] Yes Yes No No D+

References

  1. http://www.stateline.org/live/ViewPage.action?siteNodeId=136&languageId=1&contentId=121780
  2. Interactive maps comparing U.S. abortion restrictions by state, LawServer
  3. "The Constitution of the United States of America: As Ammended". 2007-7-25. http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110_cong_documents&docid=f:hd050.pdf. Retrieved on 2009-2-17. 
  4. Report, Committee on the Judiciary, U.S. Senate, on Senate Joint Resolution 3, 98th Congress, 98-149, June 7, 1983, p. 6.
  5. Baptist Hospital of Miami, Fact Sheet (2006).
  6. "Access to Abortion" (PDF). National Abortion Federation. 2003. http://www.prochoice.org/pubs_research/publications/downloads/about_abortion/access_abortion.pdf. Retrieved on 2007-06-17. 
  7. "Public Funding for Abortion" (map)
  8. http://www.nytimes.com/2006/06/07/us/07abort.html?_r=1
  9. MacIntyre, Krystal. "Mississippi abortion ban bill fails as legislators miss deadline for compromise", Jurist News Archive (2006-03-28). Retrieved 2007-01-23.
  10. Statement of Sufficiency (pdf). Secretary of State. State of Colorado. May 29, 2008.
  11. Personhood Initiative '08. Colorado for Equal Rights.
  12. http://projects.rockymountainnews.com/pages/news/politics/elections/results/colorado-issue.html
  13. http://www.standardnewswire.com/news/22733892.html
  14. "US state's 'personhood' law would hit birth control: opponents" 2009-02-18 AFP
  15. http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/maps-and-charts/map.jsp?mapID=27
  16. http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/maps-and-charts/map.jsp?mapID=23
  17. http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/maps-and-charts/map.jsp?mapID=24
  18. http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/introduction/whodecides2009reportcard.pdf
  19. http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/alabama.html
  20. http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/Alaska.html
  21. http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/arizona.html
  22. http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/arkansas.html
  23. http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/california.html
  24. http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/colorado.html
  25. http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/connecticut.html
  26. http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/delaware.html
  27. http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/florida.html
  28. http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/Georgia.html
  29. http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/hawaii.html
  30. http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/idaho.html
  31. http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/illinois.html
  32. http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/indiana.html
  33. http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/iowa.html
  34. http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/kansas.html
  35. http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/kentucky.html
  36. http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/louisiana.html
  37. http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/maine.html
  38. http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/maryland.html
  39. http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/massachusetts.html
  40. http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/michigan.html
  41. http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/minnesota.html
  42. http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/mississippi.html
  43. http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/missouri.html
  44. http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/montana.html
  45. http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/nebraska.html
  46. http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/nevada.html
  47. http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/new-hampshire.html
  48. http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/new-jersey.html
  49. http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/new-mexico.html
  50. http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/new-york.html
  51. http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/north-carolina.html
  52. http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/north-dakota.html
  53. http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/ohio.html
  54. http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/oklahoma.html
  55. http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/oregon.html
  56. http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/pennsylvania.html
  57. http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/rhode-island.html
  58. http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/south-carolina.html
  59. http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/south-dakota.html
  60. http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/tennessee.html
  61. http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/texas.html
  62. http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/utah.html
  63. http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/vermont.html
  64. http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/virginia.html
  65. http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/washington.html
  66. http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/west-virginia.html
  67. http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/wisconsin.html
  68. http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/wyoming.html

See also

External links

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