“According to the Guttmacher Institute . . . the pace of restrictions enacted so far this year puts 2021 on track to see historic high numbers of abortion restrictions,” says the Associated Press. “At this point in 2011, regarded by the research institute as the most restrictive year for abortion rights since Roe v. Wade was decided, 42 restrictions had been enacted; this year, the nation is up to 61 restrictions enacted across 13 states.” As the Guttmacher report notes, “Since January, there have been 549 abortion restrictions, including 165 abortion bans, introduced across 47 states (all counts current as of May 16, 2021).”
Based on the language used in reporting on pro-life legislation, you’d think abortion has been all but outlawed in the United States. But one question is rarely asked, by either pro-lifers or abortion-rights advocates: “Which restrictions actually restrict abortion?” That is, which anti-abortion laws put a true limitation on access to abortion?
For example, it is unlikely any of the “165 abortion bans” will actually prohibit a woman from having an abortion and most of the “549 abortion restrictions” don’t restrict abortion at all. The reality is that pro-life legislation is hampered because federal law treats access to abortion as nearly sacrosanct, at least during the early stages of pregnancy. The more ambitious attempts to restrict abortion are therefore almost always blocked by federal courts. The result is that pro-life lawmakers are pressured to “do something” even when they know the laws they pass will have no effect—at least until Roe v. Wade is overturned or made irrelevant.
While it may currently be an exercise in futility, there is still considerable value in passing pro-life legislation. Our dedication to pursuing justice for the unborn should not be abandoned simply because we have been losing the fight for half a century. Each time a federal court blocks newly passed pro-life laws, it highlights once again how abortion precedents are not only unjust but often opposed by the public. We should keep passing just laws, even if it’s only to signal to future generations that not everyone in our country endorsed the killing of unborn children.
Still, it is useful to know which types of laws currently impose actual limitations on abortion and which do not. For the purpose of this article, a restriction will refer to a currently enforceable law that regulates or limits whether, when, and under what circumstances an abortion may be obtained. A direct restriction is a restriction that could possibly prevent an abortion from occurring within 24 hours, while an indirect restriction is one that merely makes it potentially harder to obtain an abortion. The list of restrictions is based on legislation tracking done by the Guttmacher Institute, an organization that, despite being pro-abortion, tends to collect reliable data on this issue.
Direct Restrictions
Gestational Limits: Federal abortion law prevents almost any gestational limit restriction prior to viability (the stage of development at which an unborn child is capable of living, under normal conditions, outside the uterus). In the United States, viability is usually defined as occurring at approximately 20 to 24 weeks of gestational age. Almost all states—43 of 50—prohibit abortion after viability. Many states have an exception that allows an abortion when it is deemed “necessary to protect the patient’s life or health.”
Waiting Periods: Half of all states require a woman seeking an abortion to wait a specified period of time, usually 24 hours, between when she receives counseling and when the procedure is performed. Twelve of these states have laws that effectively require the woman make two separate trips to the clinic to obtain the abortion.
Partial-Birth Abortion: A partial-birth abortion is any abortion in which the death of the fetus occurs when the entire fetal head or any part of the fetal trunk past the navel is outside the body of the mother. The Supreme Court ruled in 2007 that the particular procedure could be banned because it did not interfere with a “woman’s right to an abortion.” Twenty-one states have laws in effect that prohibit partial-birth abortion, with three of these laws applying only to post-viability abortions.
Parental Involvement: 37 states require some type of parental involvement in a minor’s decision to have an abortion, with 27 states requiring one or both parents to consent to the procedure, and 10 requiring one or both parents be notified.
Indirect Restrictions
Physician and Hospital Requirements: Limitations on who can perform abortions and where they can be done is the most basic of restrictions. Yet, surprisingly, only two-thirds of states require abortion to be performed by a licensed physician, and fewer than half require an abortion to be performed in a hospital after a specified point in the pregnancy. That point is usually viability, with the earliest being 14 weeks (in New Jersey).
Restrictions on Public Funding and Private Insurance: 33 states and the District of Columbia prohibit the use of state funds except in cases when the patient’s life is in danger or the pregnancy is the result of rape or incest. Despite a court order, the state Medicaid program in South Dakota does not pay for abortions even in those situations. Twelve states restrict coverage of abortion in private insurance plans.
Right of Refusal: 45 states allow individual health care providers to refuse to participate in an abortion; 42 states allow institutions to refuse to perform abortions, 16 of which limit refusal to private or religious institutions.
State-Mandated Counseling: 18 states mandate that individuals be given counseling before an abortion that includes information on at least one of the following: the link between abortion and breast cancer (five states), the ability of the unborn child to feel pain (13 states), or long-term mental health consequences for the patient (eight states).
