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June 14, 2010 Print

Abortion Law in the United States

by Carrie Gordon Earll

For more than 30 years — since the U.S. Supreme Court declared unconstitutional state laws prohibiting abortion — abortion opponents have debated, protested and worked to reverse the legal status of abortion. During this time, the Supreme Court has granted states latitude to enact a variety of laws including parental involvement for minors and uniform counseling before an abortion.

In 1973, two Supreme Court decisions, Roe v. Wade and Doe v. Bolton, radically changed the legal landscape of American abortion law by striking down all then-existing state laws prohibiting abortion. The combined effect of the rulings required abortion to be:

1) legal for any woman, regardless of her age
2) legal for any reason through the first six months of pregnancy, and for virtually any reason thereafter

Reversal of the Roe and Doe court rulings would return the issue of abortion to state jurisdictions but would not automatically make abortion illegal in all states. In this event, the status of legal abortion would vary from state to state, depending on pre- and post-1973 laws and court rulings. For instance, 15 states have not repealed pre-Roe abortion bans, which would presumably be activated by the overturning of Roe and Doe. However, court rulings in 17 states (including seven of those with pre-Roe laws prohibiting abortion) declare that their state constitutions permit abortion, above and beyond the federal Constitution.

This potential patchwork of laws in a post-Roe and Doe era prompts many in the cause for life to seek an amendment to the U.S. Constitution prohibiting abortion.

Since 1973, the Supreme Court has issued more than 30 abortion-related rulings, including several that have upheld the constitutionality of state laws that regulate and limit abortion in the following ways:

Parental Involvement laws requiring a parent to be notified or give consent before their minor daughter has an abortion, subject to a judicial bypass option which allows a teenage girl to involve a judge rather than her parent(s); 43 states have passed such laws with 37 of those laws in effect.

Informed Consent laws requiring that women receive full medical disclosure of possible risks associated with and alternatives to abortion; 32 states have passed these laws with most in effect.

Waiting or Reflection Period laws requiring that after receiving such information, women wait a period of time (usually 24 to 48 hours) before having an abortion; 25 states have passed these laws.

Ultrasound laws offering women the opportunity to view ultrasounds before abortions are performed are in place in 20 states.

State legislatures are also considering and enacting laws in the following areas of abortion (and related) law:

Abortion and Breast Cancer legislation to inform women that abortion may increase their risk of breast cancer.

Abortion Clinic Regulations legislation to raise the level of safety and sanitation in clinics where abortions are performed.

Fetal Homicide laws in 36 states recognize two victims (mother and preborn child) when a criminal act is committed against a pregnancy woman (excluding abortion) causing the death of the preborn child.

For more information on the status of abortion law in your state, see Americans United for Life’s “Your State

This page was originally posted September 9, 2003.

Carrie Gordon Earll is the Senior Policy Analyst for Bioethics at CitizenLink (an affiliate of Focus on the Family) and a fellow with the Center for Bioethics and Human Dignity.