More than half the US could ban abortion without Roe v Wade. These states are protecting access

Fifteen states and Washington DC have codified abortion protections into law while other states are criminalising care, creating a patchwork of reproductive health rights across the US

Alex Woodward
New York
Saturday 25 June 2022 14:55
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New York expands abortion protections ahead of Roe ruling, Governor Hochul announces

Without constitutional protections affirming the right to an abortion, and absent federal law that codifies that right, millions of Americans will live in states where abortion care will be illegal.

Thirteen states will quickly or immediately outlaw abortion under laws designed to take effect after the US Supreme Court overturned Roe v Wade on 24 June. Seven states maintain abortion bans that have been on their books for decades, despite the 1973 ruling in the Roe case making them unconstitutional. More than two dozen states have severely restrictive laws that could be used to end legal care.

But more than a dozen states and Washington DC have laws that protect abortion rights, including explicit protections in state constitutions or laws allowing for abortion up to a certain point in pregnancy or throughout a pregnancy.

Twelve states allow an abortion prior to viability, which reflects the time at which a foetus can survive outside the womb, typically within 22 to 24 weeks of pregnancy. The Roe ruling affirmed that the Constitution protects the right to an abortion before viability.

Three states and Washington DC have codified the right to an abortion throughout a pregnancy.

Some states have expanded those protections within recent months as the Supreme Court prepares to issue its ruling in Dobbs v Jackson Women’s Health Organization, involving a Mississippi law banning abortion at 15 weeks of pregnancy.

The imbalance of abortion rights in the US – varying state by state or county by county in some states – creates a patchwork of care and criminalisation, where bodily autonomy protections depend on where one lives.

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Most states that protect abortion access are on the East and West coasts, surrounding a gulf of anti-abortion states throughout the South and Midwest where patients – like those living in Louisiana and Mississippi – will have to travel several hundred miles to access legal care.

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Providers and abortion fund organisers are bracing for an influx of patients traveling to states where abortion access is protected, fearing that an already over-burdened and fragile infrastructure of care will be tested by demand from patients driven from their states.

California

State legislators have approved a measure that will allow voters to determine whether to amend the state’s constitution to include fundamental protections for abortion care. “We know we can’t trust the Supreme Court to protect reproductive rights, so California will build a firewall around this right in our state constitution,” governor Gavin Newsom said in a statement earlier this year.

The governor has also signed legislation that bans insurance providers from requiring cost-sharing payments such as deductibles, coinsurance or copayments for abortion care in an effort to make access more affordable.

Colorado

Governor Jared Polis signed legislation this year that guarantees the right to “have an abortion and to make decisions about how to exercise that right”. It also states that “a fertilized egg, embryo, or fetus does not have independent or derivative rights” under state law.

Connecticut

The state protects the right to an abortion up until viability, after which abortion care is allowed only to protect the life or health of the patient.

Governor Ned Lamont also signed legislation that shields medical providers who perform abortions and out-of-state patients who travel to the state to receive the procedure from lawsuits in states that have criminalised care.

Delaware

The state protects the right to an abortion up until viability, after which abortion care is allowed only to protect the life or health of the patient.

Hawaii

The state protects the right to an abortion up until viability, and state law prohibits the government from denying or interfering with a person’s “right to choose or obtain an abortion of a nonviable fetus” that would protect the life or health of the patient.

Illinois

In 2019, the state recognised the “fundamental right to make autonomous decisions about one’s own reproductive health,” including to continue a “pregnancy and give birth or to have an abortion.”

The law repeals the Illinois Abortion Law of 1975 and its Partial-birth Abortion Ban Act. It also establishes “that a fertilized egg, embryo, or fetus does not have independent rights under the law of this State”.

Following the leaked draft opinion of the Dobbs case, Democratic governor JB Pritzker said at a news conference that the state will remain “a beacon of hope in an increasingly dark world”.

“Because we will fight like hell, not just for the women of Illinois, but for every person in our state and every person across the nation who believes not in limiting civil rights and human rights, but in expanding them,” he said.

Maine

The state protects the right to an abortion up until viability, after which abortion care is allowed only to protect the life or health of the patient.

Maryland

The state protects the right to an abortion up until viability, after which abortion care is allowed only to protect the life or health of the patient, or if the foetus is “affected by genetic defect or serious deformity or abnormality”.

A bill effective on 1 July also requires most health insurance providers to cover abortion care.

Massachusetts

The state protects the right to an abortion up until 24 weeks of pregnancy.

Nevada

The state protects the right to an abortion up until 24 weeks of pregnancy, after which abortion care is allowed only to protect the life or health of the patient.

New Jersey

The right to abortion is protected at all stages of pregnancy. In 2022, the state enacted protections recognising abortion as a fundamental right, affirmed by the state’s constitution and the state’s highest court as the “fundamental right of a woman to control her body and destiny”.

New York

In 2019, the state passed comprehensive abortion protections and removed abortion from the state’s criminal code. The state protects the right to an abortion up until 24 weeks of pregnancy, after which abortion care is allowed only to protect the life or health of the patient or if the foetus is no longer viable.

A legislative package in 2022 includes legal protections for abortion providers and out-of-state patients seeking an abortion in New York, which would block state courts from pursuing cases related to anti-abortion laws in other states.

The measures also protect abortion providers from arrest, extradition and legal action in other states by prohibiting state and local courts and law enforcement from cooperating with anti-abortion cases in those states. Another law allows people to sue for unlawful interference with their right to abortion care if they face civil or criminal charges for seeking or providing abortions.

The state also will prevent health insurance providers from taking action against New York-based providers who provide reproductive health services that are illegal in other states.

Oregon

Legislators passed a bill in 2017 that prohibits government bodies from interfering in patients’ right to an abortion.

Rhode Island

The state protects the right to an abortion up until viability, after which abortion care is allowed only to protect the life or health of the patient.

Vermont

State law passed in 2019 recognises “the fundamental right of every individual who becomes pregnant” to seek an abortion and bars government bodies from interfering with that right.

Washington

In June, state legislators strengthened abortion protections by guaranteeing the right to access to reproductive health measures regardless of gender identity.

Washington DC

The right to abortion is protected at all stages of pregnancy.

This story was originally published on 22 June and has been updated

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