By Priyal Thakkar
In 2021 alone, nearly 600 anti-abortion laws have been introduced in forty-seven states so far. Among the restrictive laws passed this year are gestational bans, method bans, parental involvement laws, reason bans, trigger bans, and TRAP laws.[1] Gestational bans ban abortions after a certain point in pregnancy—such as at six weeks like SB8 does in Texas.[2] Method bans ban particular methods of abortion care, while parental involvement laws require parental consent or notification, or judicial approval for minors seeking abortion care.[3] Reason bans restrict abortion if the pregnant person’s decision is based on a fetus’s sex or race or on fetal diagnosis, and trigger bans put laws on the books in states to ban abortion if, and as soon as, Roe is overturned.[4] Lastly, Targeted Restriction of Abortion Provider (or “TRAP”) laws, single out the medical practices of doctors who provide abortions and impose on them requirements that are more burdensome than those imposed on other medical practices.
In Arizona, Governor Doug Ducey (R) signed a bill in April that bans abortion if a fetus has or is presumed to have a genetic anomaly. Providers who terminate pregnancies because of a fetal abnormality, barring medical emergency or lethal fetal conditions, could face a felony charge and prison time of up to two years. The law is scheduled to take effect on September 29, 2021. Similarly, a federal court ruled in April that Ohio can enforce a 2017 law banning abortions when medical tests show that a fetus has Down syndrome.[5] Additionally, Ohio approved a bill in 2020 that requires fetal tissues to be cremated or buried.[6] South Dakota also signed into law a measure barring abortion based on a fetus’s suspected or confirmed diagnosis of Down Syndrome.[7]
Governor Kay Ivey (R) signed HB237 in Alabama that requires providers to “preserve the life of a child who is born alive” after an abortion or attempted abortion.[8] It grants the “same right, powers, and privileges” given to “any other child born alive at any location” in the state.[9] Montana passed a bill that bans abortion after twenty weeks of gestation, stating that it would protect fetuses capable of “feeling pain.”[10] However, several medical organizations have said that a fetus cannot experience pain until at least twenty-four weeks of gestation.[11] Like SB8 in Texas, an Idaho bill passed by Governor Brad Little (R), and an Oklahoma Bill passed by Governor Kevin Stitt (R) requires providers to perform ultrasound tests to check for cardiac activity and if detected, only permits abortion in case of risk to life, rape, or incest.[12]
In sum, thirty-eight states require an abortion to be performed by a licensed physician; nineteen states require it to be performed in a hospital; and seventeen states require the involvement of a second physician.[13] Forty-three states prohibit abortions after a specified point in pregnancy; twenty-one states have laws in effect that prohibit “partial-birth” abortions; and eighteen states mandate that individuals be given counseling before an abortion that includes information on at least one of the following: the purported link between abortion and breast cancer, the ability of a fetus to feel pain, or long-term mental health consequences for the patient.[14] Twenty-five states require a person seeking an abortion to wait a specified amount of time; twelve of which effectively require the patient to make two separate trips to the clinic to obtain the procedure.[15] Lastly, thirty-seven states require some type of parental involvement in a minor’s decision to have an abortion; and twenty-seven states require one or both parents to consent, while ten require that one or both parents be notified.[16]
[1] https://www.americanprogress.org/issues/women/reports/2020/08/27/489786/state-actions-undermining-abortion-rights-2020/
[2] Id.
[3] Id.
[4] Id.
[5] https://news.trust.org/item/20201231112641-qfynt/
[6] Id.
[7] Id.
[8] https://www.usnews.com/news/best-states/articles/a-guide-to-abortion-laws-by-state
[9] Id.
[10] https://www.nbcnews.com/news/us-news/what-u-s-abortion-access-looks-graphics-n1274859
[11] Id.
[12] Id.
[13] https://www.guttmacher.org/state-policy/explore/overview-abortion-laws#
[14] Id.
[15] Id.
[16] Id.
Priyal Thakkar is currently a 3L at Arizona State University’s Sandra Day O’Connor College of Law and works at the Academy for Justice as a Research Associate.
Law Journal for Social Justice 