States probe limits of abortion policy

Trigger laws and statements of policy:  Trigger laws ban abortion but avoid a federal lawsuit by delaying the effective date until the Supreme Court allows states to make abortion illegal again.

In 2007, Mississippi and North Dakota enacted trigger laws.

Illinois was the first to pass such a law in 1975. Louisiana followed in 1981 and Kentucky in 1982. South Dakota passed a trigger law in 2005 and, in 2006 Louisiana updated and added teeth to its 1981 trigger law.

Legal experts differ on whether trigger laws would automatically take effect if Roe v. Wade were overturned. Some say the laws-in-waiting would be subject to approval by the incumbent governor and attorney general, if not lawmakers.

Three states, Arkansas (1988), Missouri (1974 and 1986) and North Dakota (1975), passed similar but weaker laws, called statements of policy, that establish their intention to outlaw abortion if federal prohibitions are lifted. Experts agree these laws would have no legal effect if Roe v. Wade were overturned.

Pre-1973 abortion bans: Statute books in 13 states still feature abortion bans that were passed before Roe v. Wade, though all except those in Alabama and Massachusetts have been enjoined by courts.

In theory, if Roe v. Wade were overturned and state leaders wanted an invalidated abortion ban to take effect, a court injunction could be lifted. Similarly, if state leaders did not want a dormant abortion ban to take effect, the law could be voided, legal analysts say.

In some states, the existence of pre-1973 bans may be merely a housekeeping error. For example, Vermont -- among the most liberal states in the union and the only state that has failed to pass a single anti-abortion law since Roe v. Wade – still has a pre-1973 abortion ban on the books. Likewise, Massachusetts, with relatively liberal abortion laws and a Democratic Legislature, has retained the decades-old ban.

Alabama, Arizona, Arkansas, Colorado, Delaware, Michigan, Mississippi, New Mexico, Oklahoma, West Virginia and Wisconsin also have bans on the books that predate Roe v. Wade.

Laws and constitutions protecting a woman’s right to an abortion: In 2006, Hawaii joined six other states that have passed laws ensuring a woman’s right to abortion, whether Roe v. Wade stands or falls.

Nevada was the first to enact such a law in 1990, followed by Maryland (1991), Maine (1992), Washington (1992), Connecticut (1997) and California (2002).

In at least 10 states, the highest court has interpreted the state constitution as protecting a woman’s right to abortion. Those states are Alaska, California, Florida, Massachusetts, Minnesota, Montana, New Jersey, New Mexico, Tennessee and West Virginia, according to a pro-abortion research group, the Center for Reproductive Rights. 

Current state restrictions on abortion

Since 1973, state lawmakers have enacted hundreds of statutes designed to limit access to abortion. With the exception of Vermont, every state has enacted at least one restriction on abortion, regulating everything from whether abortions qualify for Medicaid, to where and by whom the procedure can be performed, to what doctors must tell women before they receive the procedure.

This roster of state laws grew over the years as a small number of state innovators passed new abortion restrictions, and other states followed, provided the model laws weren’t struck down by courts.

New in the past five years are laws that require doctors to inform women that the fetus may experience pain and to offer anesthesia for the fetus. Another new crop of laws calls on abortion providers to either offer women the chance or require women to view a sonogram picture of the fetus before undergoing the procedure.

In 2005, state lawmakers, driven by continuing passions over abortion, considered more than 500 bills aimed at limiting access to the procedure. In 2006, about 300 abortion restrictions were considered.

Following is a rundown of state laws regulating abortion:

Parental consent and notification: Among the most contentious restrictions, because they affect a large and vulnerable population of young women seeking abortions, are laws aimed at involving parents in a minor’s abortion decision. They have been proposed in nearly every state since the 1970s. 

In 1976, the U.S. Supreme Court ruled that state laws requiring parental involvement must ensure that a woman’s health is protected by including exemptions in medical emergencies and by giving girls the option of asking a judge to waive the requirement, a process called judicial bypass.

In 2006, the high court upheld that decision, ruling in Ayotte v. Planned Parenthood of Northern New England that a New Hampshire parental notification law must allow doctors to quickly perform an abortion in medical emergencies without notifying parents. In 2007, the New Hampshire legislature repealed the parental notification law and Gov. John Lynch (D) said he would sign it.

States have passed two types of parental involvement laws. Parental consent laws require one or both parents to approve of the procedure in writing; parental notification laws simply require doctors to notify parents before performing an abortion on a minor. Most laws require 48 hours notice and set the age of a minor at 18.

In November 2006, voters in California and Oregon rejected proposals to join 35 other states in preventing teenage girls from getting abortions without a parent’s knowledge. Oregon voters had rejected a similar proposal in 1990 and California voters nixed a parental involvement law in 2005.

Florida voters approved a 2004 ballot measure requiring parental consent, and in 1998 Colorado voters approved a parental notification measure. 

Connecticut, Hawaii, New York, Oregon, Vermont and Washington are the only states with no laws requiring parental involvement in a minor’s abortion decision.

Nine states – Alaska, California, Idaho, Illinois, Montana, Nevada, New Hampshire, New Jersey and New Mexico – have passed parental involvement statutes that were immediately rejected by courts for violating privacy and equal-protection clauses in their state constitutions.

Nationwide, 22 states enforce parental consent laws requiring at least one parent to sign a statement approving the procedure. Of the 22, only Mississippi and North Dakota require both parents to approve the procedure. Twelve other states enforce parental notification laws. Utah enforces both consent and notification laws.

Maine, North Carolina, South Carolina and Wisconsin allow girls alternatives to parental consent such as the consent of a grandparent or sibling, a doctor-authorized waiver, or state-approved counseling. Colorado, Delaware, Iowa and West Virginia offer girls similar alternatives to parental notice requirements.

Consultation, including fetal pain and ultrasound: Twenty-eight states require doctors to provide some form of counseling about the risks of abortion and the availability of funding and services for women who carry their pregnancies to term.

Of the 28 states, 26 require counseling on adoption and other alternatives to abortion; three – Arkansas, Nevada and Wisconsin – require doctors to warn women of serious psychological effects from abortion; four – Arkansas, Georgia, Illinois and Minnesota – require explanations of fetal pain and offers of painkillers for the fetus; three – Minnesota, Mississippi and Texas – call on doctors to warn women that abortion can result in increased breast cancer risk, and nine  -- Alabama, Arkansas, Idaho, Indiana, Michigan, Mississippi, Oklahoma, Utah and Wisconsin -- offer or require a sonogram before an abortion.

Waiting periods: Designed to give women time to reconsider their choice of abortion, waiting periods are required in 24 states.  

Of the 24, 22 states require a 24-hour waiting period, Indiana requires an 18-hour wait, and South Carolina requires only one hour. Four other states have waiting laws that have been enjoined by courts. 

Physician and hospital requirements: Thirty-nine states require abortions to be performed by a licensed physician, 20 states require abortions to be performed in a hospital after a certain point in the pregnancy, and 18 require a second physician at certain points in a pregnancy.

All of these regulations, aimed at protecting the health of the mother, add to the cost and affect the availability of abortion.

In 2006, Ohio joined the list of states requiring licensed physicians to perform abortions. Then-Gov. Bob Taft (R) signed a measure prohibiting physician assistants from performing the procedure or prescribing a drug that would induce an abortion.

In Utah, abortions must be performed in a hospital after the first 90 days of pregnancy. Massachusetts, North Dakota and Wisconsin require hospitalization after 12 weeks, New Jersey and Rhode Island after 14 weeks, North Carolina after 20 weeks, Nevada after 24 weeks, and all others after the second trimester of pregnancy or post-viability.

North Dakota requires a second physician after 12 weeks of pregnancy, Florida and New York after 24 weeks, and all others after the third trimester or post-viability.

Public funding: In 1977, Congress passed the Hyde Amendment, limiting federal funding for abortions through Medicaid and other Health and Human Services programs to cases involving rape or incest or when a woman’s life is at risk.

All states except South Dakota meet the minimum federal funding standards under the federal-state Medicaid program for low-income women. South Dakota is stricter about which abortions it will pay for, limiting payments to abortions necessary to save the life of the mother.

Hawaii, Maryland, New York and Washington voluntarily help low-income women pay for abortions. Thirteen states are under court orders to fund all or most abortions.

Private insurance coverage: Less controversial than public funding restrictions, but representing a significant barrier to abortion, five states -- Idaho, Kentucky, Missouri, Oklahoma and North Dakota -- restrict private insurance coverage to cases involving a risk to the woman’s life.

Restrictions on insurance coverage for public employees are more common. Colorado and Kentucky prohibit any insurance coverage of abortion for public employees. Idaho, Missouri and North Dakota limit coverage to cases in which a woman's life is in danger, and six others -- Massachusetts, Mississippi, Ohio, Pennsylvania, Rhode Island and Virginia -- limit coverage to cases involving life or health risks, rape, incest or fetal abnormalities.

In April 2006, Arizona Gov. Janet Napolitano (D) vetoed a bill that would have prohibited public employee insurance from covering abortion except in cases involving life or health risks to the mother.

Refusal to provide abortion: All states except Alaska, New Hampshire, Vermont and West Virginia allow doctors to refuse to perform abortions. And all states except Alaska, New Hampshire, Vermont, West Virginia, Connecticut, New York and Rhode Island allow private and/or religious medical institutions to refrain from offering abortion services.

Partial-birth restrictions: Starting in the mid 1990s, 31 states enacted laws prohibiting so-called partial-birth abortion procedures. In 2000, the Supreme Court struck down the laws, because the justices said  the descriptions of partial-birth abortion, a term not used by the medical community, were so broad that they included many common abortion techniques used as early as 12 weeks of pregnancy. The court also said that partial-birth bans were not constitutional unless they included an exception to protect a woman’s health.

But on April 18, 2007, the Supreme Court reversed its 2000 ruling, upholding the federal Partial-Birth Abortion Ban Act of 2003, which does not include a health exception. The ruling only applied to the specific restrictions in the federal law and won’t necessarily result in the reinstatement of state bans on the procedure.

Following that decision, a federal appeals court decided in June that Michigan’s partial-birth law — which had been enjoined by a lower court — was unconstitutional because it was broader than the federal law and would prohibit certain legal abortion procedures. In Wisconsin, the attorney general decided in May 2007 not to seek reinstatement of the state’s enjoined partial-birth law. The Louisiana Legislature in June 2007 passed  a partial-birth abortion ban patterned after the federal law.

Late-term and post-viability restrictions: In Roe v. Wade and subsequent decisions, the high court allowed states to prohibit abortions after the fetus is able to live outside of the womb, with the following exceptions: States may not prohibit abortions necessary to preserve a woman’s life or physical or mental health, and states must allow the attending physician to determine when a woman’s health is at risk and when the fetus is viable, without requiring a second doctor’s opinion.

Despite the court’s stipulations, some state bans on late-term abortions violate those requirements, though not all have been enjoined by courts.

In all, 36 states prohibit abortions after a certain point in pregnancy. Of those, 23 ban abortions at viability; five ban it in the third trimester; and eight ban the procedure after 24 weeks.

In conflict with Roe v. Wade, four of the 36 states permit late-term abortions only to save a woman’s life, and four use a narrower health definition. Nine states require a second physician to treat the fetus if it is born alive, and 10 states require a second physician to certify that the abortion is medically necessary.

Targeted regulation of abortion providers (TRAP): Thirty-four states have laws subjecting abortion providers to reporting and licensing regulations and clinics to building codes that are not applied to other medical professionals or facilities. Some states have multiple laws restricting doctors and facilities, and many conduct regular inspections.