What You Should Know About State Abortion Laws By Katherine Slye

This is the first in a series on abortion laws in the United States.

Everyone probably knows about the historic 1973 Supreme Court case that established a right to privacy including the decision to have an abortion, Roe v. Wade. But far fewer people know much about the history of abortion since January 22, 1973. Much has happened, mostly in state governments, including the passage in many states of waiting periods and informed consent laws, the two most common types of abortion laws.

Thirty-five states currently require women receive some sort of information regarding abortion from their doctor prior to having the procedure. Some legislatures dictate what information must be provide, which can include a description of the fetal development, the risks/dangers of abortion, and ensuring a woman knows she cannot be coerced into having the procedure.

As for waiting periods, 27 states require a woman wait a set period of time, which can range from 18 to 72 hours depending on the state, between her consultative doctor/clinic visit and an additional visit where the procedure is competed. In many states, this requires the visits be on different days, which can be difficult for working and middleclass women who often must travel many hours to get to a doctor who performs the procedure; many states have only one or few providers. The most recent laws on this issue were passed in Missouri (2014), South Dakota (2013), and Utah (2012); until Utah became the first to pass a 3-day waiting period, the longest in the US was 48 hours, with most states only requiring a woman wait 24 hours.

Both of these types of laws are often challenged in state court, claiming they violate the state’s constitution. This type of challenge prohibits any appeal to the federal courts because the argument is based upon state law; other challenges in the past have used federal law, and those cases often lead to an expansion of the allowed regulations on the abortion procedure (Webster 1989; Casey, 1992). The most recent case regarding a waiting period law was in Florida, where the State Supreme Court has temporarily blocked the implementation while it works its way through the state court system; the Court believes the challenge will succeed.

Many abortion laws are introduced, and sometimes passed, in states across the country each year related to not only informed consent and waiting periods but public funding, facility requirements, hospital policies, and conscience clauses to name a few. With the election of many Republican governors and legislators across the country last November, there has especially been an uptick in bills to defund Planned Parenthood, which will be the topic of the next piece in this abortion policy series.

Since the 1980s, the battle over abortion policy has largely shifted to state legislatures. It is important to understand these state abortion policies because laws differ from state to state, thus abortion rights are dependent upon where one lives. Now a main concern of those working in this field is what laws states will pass regarding abortion access, which often challenge the core of Roe, and what they mean for women living in that state. This is not to say state and federal courts are no longer relevant, they often hear cases challenging these laws on constitutional grounds, but their role is a discussion for another time.

State abortion policy is something to watch, especially with the large party changes in state governments last November, because policy passed at the state level often has a larger, more immediate, impact on citizens than does some national policy. While everyone is wondering whether the Republican health care bill will ever get a vote or what executive order is coming next from President Trump, state legislators are hard at work passing many policies, abortion related and otherwise, that could have a large impact on citizens tomorrow.

Katherine Slye, MA is a PhD Candidate at the University at Albany working on her dissertation, which examines the past lobbying strategies of abortion interest groups, "How Choice is Made in the Choice Debate."