Types of abortion restrictions in the United States

Abortion is the termination of human pregnancy, often performed in the first 28 weeks of pregnancy. In 1973, the United States Supreme Court in Roe v. Wade recognized a constitutional right for women in the United States to obtain an abortion without excessive government restriction, and in 1992 the Court in Planned Parenthood v. Casey invalidated restrictions that create an undue burden on women seeking abortions. Since then, there has continued to be an abortion debate in the United States, and some states have passed laws in the form of regulation of abortions but which have the purpose or effect of restricting its provision. The proponents of such laws argue they do not create an “undue burden”.[1] Some state laws that impact the availability of abortions have been upheld by courts.

Abortion clinic regulations

This map shows 60-mile access to abortion providers in Texas

An abortion clinic is a medical facility that provides abortions. Abortion clinics may be private or public medical practices or nonprofit organizations. In 27 major cities and much of rural America, most people live 100 miles or more from an abortion clinic.[2]

Regulations for abortions in the United States include state licensing requirements, federal workplace safety requirements, and association requirements. Abortion clinics may also self-impose more stringent requirements than what these regulations require.

Post Roe v. Wade, many states have passed TRAP (Targeted Regulation of Abortion Providers) laws. These regulations are designed to limit the amount of abortions performed by decreasing the number of facilities permitted to perform abortions.

One example of a TRAP law is a requirement which states that doctors performing abortions must have admitting privileges at a nearby hospital.[3] Local hospitals may choose to deny admitting privileges to medical professionals if the medical professional is known to be an abortion provider. Critics of admitting privileges laws and other TRAP laws include the American College of Obstetricians and Gynecologists, the American Public Health Association, and the American Medical Association, which have argued that such laws are medically unnecessary and that abortion is already "very safe" in the United States.[4][5]

From 2011, the crimes of Kermit Gosnell, a physician who ran an abortion clinic in Philadelphia, spurred federal and state bills to more strictly regulate abortion facilities. Opponents of the restrictions questioned whether stricter regulations would have deterred Gosnell, who was alleged to be knowingly in violation of existing regulations.[6]

In March 2020, the Supreme Court decided in a 5-4 to reverse a lower court’s ruling of allowing a Louisiana law to take effect in which abortion clinics were required to have admitting privileges within 30 miles.[7][6]

Supporters of Texas House Bill 2 (H.B. 2), which included requirements for abortion clinics to meet ambulatory surgical center regulations and for abortion clinic doctors to have hospital admitting privileges, said the bill improved health care for women and babies. Opponents of the bill said it created unnecessary regulations for the purpose of reducing access to abortions. At the time of the bill's signing into law in 2013, five of the state's forty-two abortion clinics met the law's requirements. Courts had blocked enforcement of similar laws in some other states, pending lawsuits challenging their constitutionality. A federal district judge determined this law to be unconstitutional, finding that the admitting privileges requirement placed an undue burden on a person seeking to have an abortion; however, this decision was reversed by the Fifth Circuit Court of Appeals, resulting in the immediate closure of all but seven abortion clinics in the state, all of these in urban areas. In March 2016, this case, now known as Whole Women's Health v Hellerstedt, was heard by the Supreme Court. Over eighty amicus curiae briefs were filed with the Court. The case was decided on June 27, 2016 and was reversed and remanded, 5–3, in an opinion by Justice Breyer.[8] In summary, the Supreme Court ruled that Texas cannot place restrictions on the delivery of abortion services that create an undue burden for women seeking an abortion.

In June 2020, the Supreme Court held in June Medical Services LLC v Russo that a Louisiana law requiring physicians who perform abortions to have admitting privileges at a local hospital was unconstitutional, and confirmed the Supreme Court’s ruling in Whole Woman’s Health v. Hellerstedt.[9]

In 2015, an Arkansas law required a physician who sought to provide an abortion pill to contract another physician who had admitting privileges at a nearby hospital. As a result, no providers could offer medication abortions in Arkansas and two Planned Parenthoods within the state cancelled their abortion services. Critics argued that no evidence was presented that hospital admitting privileges improve the safety of abortions.[10]

Following the passage of a 2013 Wisconsin law requiring abortion providers to have admitting privileges at a nearby hospital, three Catholic hospital systems in the state intended to deny admitting privileges to abortion providers. Wisconsin's attorney general said this intent violated the Church Amendment of 1973, which prohibits hospitals receiving federal funds from discriminating against a doctor on the basis of whether the doctor provides abortions.[11]

Federal funding of abortions

The Hyde Amendment bars the use of federal funds to pay for abortion except to save the life of the woman, or if the pregnancy arises from incest or rape.[12][13] Before the Hyde Amendment took effect in 1980, an estimated 300,000 abortions were performed annually using taxpayer funds.[14] The provision withholds federal Medicaid funding of abortions, which impacts especially low-income families.[15]

Laws targeting methods of practice

On 18 April 2007, the U.S. Supreme Court upheld a federal law that banned abortions in the second trimester, that medical doctors say is the safest time for an abortion to protect the woman’s health. The Court's decision overturned more than 30 years of precedent that put the women's health first.[15]

Mandatory ultrasounds

Ultrasounds are not medically necessary for abortions; however, some states require physicians to perform an ultrasound, and some require the woman seeking an abortion to view the ultrasound and listen to the fetus heartbeat, if any. As of May 2019, twelve states required women seeking an abortion to have an ultrasound before being allowed to have the procedure. This number was 26 in September 2020. 14 states required women to be issued with ultrasound information in May 2019.[16] Mandatory transvaginal ultrasounds have been particularly controversial.[17] In Texas, for instance, even if previous ultrasounds had indicated severe congenital defects, a woman seeking an abortion was required under a 2012 law to have another ultrasound done, "administered by her abortion doctor, and [she had to] listen to a state-mandated description of the fetus she was about to abort", though state-issued guidelines later eliminated the ultrasound requirement if the fetus had an "irreversible medical condition".[18] Some states require women to seek counseling after ultra sound to determine if they would like to continue with an abortion.

On November 12, 2013, the U.S. Supreme Court declined to hear an appeal by the state of Oklahoma to the overturning of a bill that mandated compulsory ultrasound examinations.[19]

Waiting periods

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

27 states require a woman seeking an abortion to wait up to six days, most often 1 day, after receiving counseling and before having the abortion.[20] 14 states require the woman to make two trips to the clinic before receiving an abortion as they must receive counseling in person at the clinic, wait the designated waiting period, and return to the clinic to have the procedure done.[21] South Dakota requires the woman to obtain mandatory counseling from an anti-abortion crisis pregnancy center during this time frame.[22]

Fetal heartbeat bills

Fetal heartbeat bills by state, including time limit without exceptions marked:
  Heartbeat bill passed (to go into effect)
  Law partially passed by state legislature
  Law blocked by court order

Several states have passed fetal heartbeat bills that makes abortions illegal as soon as the embryonic or fetal heartbeat can be detected.[23][24]

Physician scripts

Some states require a doctor to read a prepared script to the woman seeking an abortion to secure informed consent. These scripts may include medically inaccurate information intended to persuade the patient not to have an abortion, such as the claim that the abortion will increase the risk of breast cancer or of psychological problems, which are not supported by mainstream medical organizations or scientific consensus.[18][25] As of July 2013, 12 states require that women be given information on the ability of a fetus to feel pain.[26] In Planned Parenthood v. Rounds, the Eighth Circuit Court of Appeals ruled that a South Dakota law requiring doctors to give patients false or misleading information about the suicide risk in women who have abortions was not unconstitutional.[27] Alaska, Kansas, Mississippi, Oklahoma, and Texas mandate that before an abortion can be performed, the patient must be counseled on the link between abortion and breast cancer.[20] There is currently no evidence from scientific research that abortion has the ability to cause breast cancer.[28] Kansas, Louisiana, Mississippi, Nevada, North Carolina, South Dakota, Texas, and West Virginia mandate that patients receive counseling on the potential psychological impacts of abortion on the women who receive them before an abortion can be given.[20] Five states require that an abortion patient is counseled that personhood begins at conception.[21]

Liability

Physicians can be liable for the abortion of a fetal if the right procedures are not taken. Doctors should inform every patient of all material risk of the procedure. The doctors can not give small amount of details to patient but everything that will be done must be presented.[29] A 1997 Louisiana law creates a civil cause of action for abortion-related damages, including damage to the unborn, for up to ten years after the abortion. The same law also bars the state's Patient's Compensation Fund, which limits malpractice liability for participating physicians, from insuring against abortion-related claims.[30][31] An attorney for the Center for Reproductive Rights, which opposes the law, said the law is an attempt to drive abortion providers out of practice, and that every completed abortion imposes strict liability under the law because abortion necessarily involves damage to the unborn.[32]

Reporting

As of 2010, 46 of 50 states and the District of Columbia had either mandatory or voluntary reporting of abortion statistics. According to an associate of the Guttmacher Institute, reporting requirements were generally "benign" and treated confidentially, but the requirements in some states have become more intrusive.[33]

A 2009 Oklahoma law, overturned by a federal court in 2010, would have required doctors to report information from a 37-question form about every woman receiving an abortion to the state health department for publication in an online registry.[33] A lawyer for the Center for Reproductive Rights, a co-plaintiff in the lawsuit challenging the law, said the law would have made public potentially identifying details about women, and was intended to dissuade women from seeking abortions.[34] Todd Lamb, who sponsored the law as a state senator, called it "essential in protecting the sanctity of life" and "pro-life".[33]

Transportation Issues to accessing abortion:

In states such as Alabama and Mississippi women often have the challenge of traveling far distances to obtain a medical abortion. As of 2019, there are only 3 healthcare clinics in the state that offer abortion. According to Guttmacher Institute, about one-third of women seeking an abortion in Alabama must travel more than 25 miles to receive the procedure.[35] Furthermore, only 7% of counties in Alabama have a medical provider in the county that offers abortion.[35] Women often must seek 2 trips to an abortion provider due to a waiting period. The waiting period is typically 48 hours before the scheduled abortion.

           Organizations such as Yellowhammer Fund, help women seeking an abortion. They provide financial costs and transportation for women in Alabama, Mississippi, and the Florida panhandle area. On the other hand, most clinics do not offer transportation or financial resources to patients. Most of the time, it is the responsibility of a patient to find their means of transportation and finances to fund the abortion.[35]

Language Barriers/Immigrant Issues related to Abortion:

An issue that can arise among non-native English speakers or immigrant women is the lack of access to a translator while attempting to seek an abortion.  Under federal law, citing the Title VI of the Civil Rights Act of 1964 and the Affordable Care Act requires that providers who receive federal funding provide an oral interpreter and translated material.[36] According to the American Civil Liberties Union, in 1976, Congress passed a bill called the Hyde Amendment which purposely excludes abortion from being included in healthcare services provided to people through Medicaid.[36] The only exception to this rule is if a woman's life is in danger due to pregnancy, cases of rape or incest, illness, or injury. This results in many healthcare clinics that offer abortion, not be able to accommodate non-English speaking patients. Due to the limitations set by the federal government. There are limited resources for non-English speaking patients when it comes to abortion.[36]

Additionally, when it comes to organizations such as the United States Immigration and Customs Enforcement, abortion is heavily regulated. ICE complies with the Hyde Amendment from 1976, and only offers abortion for reasons related to incest, rape, or the endangerment of a mother's life due to pregnancy.[37] According to the National Latina Institute for Reproductive Justice, around 80% of women attempting to enter the United States through illegal means, get sexually assaulted. Thus, a high number of women in ICE detention centers often seek medical abortions. Furthermore, there have been proposals by Alabama Representative Robert Aderholt to attempt to allow ICE employees to refused to conduct an abortion.[37] Such proposals have so far not passed in congress.

Under the Trump administration, minors who were held in ICE custody were unable to seek an abortion. According to PBS, a federal appeals court ruled against the Trump administration on June 14, 2019. The three federal judges cited that the Trump administration could not regulate a minor’s decision to receive a medical abortion.[37] Furthermore, the policy dates to 2017, when the ban was supposed to take effect. The ban specifically targets immigrant minors attempting to enter the country, which is then held by the United States government for attempting to illegally enter the US. At the time, the Trump administration could have attempted to ask the United States Court of Appeals to hear the case, but that seems to have never gone through.[37]

How COVID-19 impacted access to abortion in the United States

In March 2020, COVID-19 impacted the United States, forcing the CDC to declare COVID-19 as a national epidemic. During this time, numerous conservative states began issuing orders to postpone any non-essential medical produces, specifically abortion.[38][39] The few conservative states to do so was Texas on March 23, 2020. The reasoning for Texas’ ban on non-essential medical produces was cited as the ongoing situation with SARS-CoV-2 (COVID-19).[39] In the following weeks, more conservative states such as Ohio, Alabama, Iowa, and Oklahoma followed Texas in the same ban on non-essential produces.  In a press conference on March 27, 2020, Iowa Governor Kim Reynold clarified that surgical abortion procedures would be included in the temporary hold on all non-essential surgeries.[40]

The Supreme court accepted a request from the Food and Drug Administration to once again restrict the use of the “abortion pill” by not allowing medical providers to send the pill via mail. The “abortion pill” or otherwise known as mifepristone or misoprostol, includes cramping and bleeding of the uterus to extract the fetus from a woman’s body.[41] This form of medical abortion is primarily used for ending pregnancies that are within the first trimester. The rule was suspended by a federal judge in the summer of 2020 due to the ongoing pandemic.[41] The reinstated rule forces women seeking an abortion to go into a medical providers' office and have an in-person visit to receive the pill. The Food and Drug Administration attempted to appeal the original decision on August 26, 2020, to the Supreme Court. The Supreme Court responded with a denial to the Food and Drug Administration to overturn the order. The Supreme Court cited that the Food and Drug Administration needed to provide more information as to why Judge Chuang’s order needed to be overturned. Finally, on January 12, 2021 the Trump Administration submitted a more detailed request, which was granted by the Supreme court to lift the suspension on not requiring in-person visits and mailing of the abortion pill.[41]

Limitations for Minors Under 18

In around 37 states, a parental figure is required to have a say in a minor’s decision related to abortion. Furthermore, in 27 states, one or both parents are required to give their permission to the minor. 10 states require both parents to consent to medical abortion. Furthermore, a minor may not have the finances or transportation to seek an abortion. Since most minors are labeled as dependent on their parents' or guardians' tax forms, they are most likely do not have the money to obtain an abortion. Also, if the minor is on their guardian's insurance, the guardian has access to the health insurance and information of the minor. It is estimated that around 350,000 United States teenagers under the of 18 become pregnant each year. From that population, around 31% of them have a medical abortion.[42]

Insurance Limitations

In 12 states, private insurance is restricted from covering abortion under their plans. In most cases, insurance only covers abortion if a woman's life is endangered by a medical professional. If an underinsured or uninsured woman seeks an abortion, she may need to pay out-of-pocket costs to receive the treatment needed. These limitations of the lack of insurance coverage greatly affect mostly low-income women of color. The average "abortion pill" cost around USD 500.  On top of that, under the Affordable Care Act passed in 2010 by congress, abortion is not required to be covered under the 10 essential coverages. Government-run health insurances, such as Medicaid, can provide coverage for medical abortion.[43]

See also

References

  1. ↑ "undue burden". LII / Legal Information Institute. Retrieved 2021-04-07.
  2. ↑ "10 things you need to know about abortion laws in the US". www.amnesty.org. Retrieved 2021-04-07.
  3. ↑ "Abortion, Hospital Admitting Privileges, and Whole Woman's Health v. Cole" (PDF). Retrieved October 1, 2015.
  4. ↑ Grossman, Daniel; Baum, Sarah; Fuentes, Liza; White, Kari; Hopkins, Kristine; Stevenson, Amanda; Potter, Joseph E. (November 2014). "Change in abortion services after implementation of a restrictive law in Texas". Contraception. 90 (5): 496–501. doi:10.1016/j.contraception.2014.07.006. PMC 4179978. PMID 25128413.
  5. ↑ "Opposition to Requirements for Hospital Admitting Privileges and Transfer Agreements for Abortion Providers". APHA Policy Statement. Retrieved 14 March 2016.
  6. 1 2 Caplan-Bricker, Nora (May 1, 2013). "The Kermit Gosnell Effect". The New Republic.
  7. ↑ Sheppard, Kate (June 27, 2011). "Abortion Foes' Latest Backdoor Ban". Mother Jones.
  8. ↑ "Whole Woman's Health v. Hellerstedt". SCOTUSblog. Retrieved 2020-04-27.
  9. ↑ "Russo v. June Medical Services LLC". SCOTUSblog. Retrieved 2020-04-27.
  10. ↑ "Medication Abortion". The Henry J. Kaiser Family Foundation. 2018-06-01. Retrieved 2020-05-09.
  11. ↑ Ahmed, Akbar (August 7, 2013). "Hospitals can't deny admitting privileges to abortion doctors, AG says". Milwaukee Journal Sentinel. Retrieved October 4, 2013.
  12. ↑ "Abortion Funding Ban Has Evolved Over The Years". NPR.org. Retrieved 2019-03-10.
  13. ↑ "Archived copy". Archived from the original on March 7, 2016. Retrieved February 23, 2016.{{cite web}}: CS1 maint: archived copy as title (link)
  14. ↑ Rovner, Julie (15 December 2009). "Abortion Funding Ban Has Evolved Over The Years". National Public Radio Inc. Retrieved 7 June 2019.
  15. 1 2 "Federal and State Bans and Restrictions on Abortion". www.plannedparenthoodaction.org. Retrieved 2021-04-08.
  16. ↑ "State Ultrasound Requirements in Abortion Procedure". The Henry J. Kaiser Family Foundation. 28 May 2019. Retrieved 15 March 2020.
  17. ↑ Sheppard, Kate (March 5, 2012). "Mandatory Transvaginal Ultrasounds: Coming Soon to a State Near You". Mother Jones.
  18. 1 2 "'We Have No Choice': A Story Of The Texas Sonogram Law". NPR. January 22, 2013.
  19. ↑ Court lets stand an Oklahoma ruling that a state abortion law is unconstitutional', Washington Post, Juliet Eilperin, 12 November 2013. Retrieved 12 November 2013.
  20. 1 2 3 "An Overview of Abortion Laws". Guttmacher Institute. 2016-03-09. Retrieved 2020-05-09.
  21. 1 2 "Counseling and Waiting Periods for Abortion". Guttmacher Institute. 2016-03-14. Retrieved 2020-05-09.
  22. ↑ "South Dakota governor signs extended abortion wait period law". Reuters. 2013-03-08. Retrieved 2020-05-09.
  23. ↑ Lithwick, Dahlia (July 23, 2015). "A Regrettable Decision". Slate. Retrieved August 11, 2015.
  24. ↑ Glenza, Jessica (June 5, 2019). "Doctors' organization: calling abortion bans 'fetal heartbeat bills' is misleading". The Guardian. ISSN 0261-3077. Retrieved June 7, 2019.
  25. ↑ Lazzarini, Zita (November 20, 2008). "South Dakota's Abortion Script — Threatening the Physician–Patient Relationship". New England Journal of Medicine. 359 (21): 2189–91. doi:10.1056/NEJMp0806742. PMID 19020321.
  26. ↑ "State Policies in Brief: An Overview of Abortion Laws" (PDF). Guttmacher Institute. Retrieved 2 July 2013.
  27. ↑ Can the Government Require Doctors to Provide Misleading Information to Patients Seeking Abortions?
  28. ↑ "Abortion and Cancer Risk". www.cancer.org. Retrieved 2020-05-09.
  29. ↑ "Abortion, information & the law: what every doctor needs to know". Issues in Law & Medicine. 16 (3): 283–284. 2001. ISSN 8756-8160. PMID 11285863.
  30. ↑ Cassens Weiss, Debra (September 6, 2013). "5th Circuit finds no undue burden in law curbing liability protection for abortion providers". ABA Journal. Retrieved October 8, 2013.
  31. ↑ Catalanello, Rebecca (September 5, 2013). "Abortion providers challenging Louisiana law suffer setback at 5th Circuit". Times-Picayune. Retrieved October 8, 2013.
  32. ↑ Mcconnaughey, Janet (March 29, 2012). "Judge forbids La to enforce abortion liability law". Deseret News. Associated Press. Retrieved October 8, 2013.
  33. 1 2 3 Donaldson James, Susan (February 19, 2010). "Okla. Strikes Down Law That Would Have 'Undressed' Women". ABC News. Retrieved October 8, 2013.
  34. ↑ "Oklahoma abortion law to force women to list personal details online". Daily Telegraph. October 19, 2009. Retrieved October 8, 2013.
  35. 1 2 3 "State Facts About Abortion: Alabama". Guttmacher Institute. 2016-01-26. Retrieved 2021-08-04.
  36. 1 2 3 "Public Funding for Abortion". American Civil Liberties Union. Retrieved 2021-08-04.
  37. 1 2 3 4 "Detained Immigrant Women Are Facing A Grueling Abortion Struggle". National Latina Institute for Reproductive Justice (in Spanish). 2017-05-24. Retrieved 2021-08-04.
  38. ↑ "Timeline: Our Fight Against Opportunistic Abortion Bans During the COVID-19 Pandemic". www.plannedparenthoodaction.org. Retrieved 2021-08-06.
  39. 1 2 "Court rules against Trump's abortion policy for immigrant teens in government shelters". PBS NewsHour. 2019-06-14. Retrieved 2021-08-04.
  40. ↑ Cummings, Caroline (2020-03-27). "Gov. Reynolds office: Order halting non-essential surgeries includes surgical abortions". KGAN. Retrieved 2021-08-04.
  41. 1 2 3 "Justices grant FDA request to block mail delivery of abortion pills". SCOTUSblog. 2021-01-12. Retrieved 2021-08-04.
  42. ↑ "Laws Restricting Teenagers' Access to Abortion". American Civil Liberties Union. Retrieved 2021-08-04.
  43. ↑ 2019 (2019-06-24). "Coverage for Abortion Services in Medicaid, Marketplace Plans and Private Plans". KFF. Retrieved 2021-08-04.{{cite web}}: CS1 maint: numeric names: authors list (link)
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