Almost one year after the Supreme Court overturned Roe v. Wade and Planned Parenthood v. Casey, abortion laws and access to abortion are uneven across the country. With both Casey and Roe no longer the legal standard, many states have banned abortion. However, the legality of abortion in a state does not tell the whole story. Many states without bans still have abortion regulations that create significant barriers to access. State abortion regulations such as gestational limits early in pregnancy, mandatory waiting periods and ultrasounds, bans on telehealth for abortion care, parental consent requirement for minors, and restricting the pool of providers to licensed physicians serve to limit access to abortions in states that have not instituted outright bans.
Five states have gestational limits early in pregnancy. In Georgia, abortion is banned after 6 weeks from the last menstrual period (LMP), before most people know they are pregnant. A 12-week LMP ban recently passed and went into effect in Nebraska, and North Carolina has a 12-week ban slated to go in effect on July 1st, 2023. Florida and Arizona ban abortion after 15 weeks LMP. Florida’s Governor has also signed a 6 -week LMP ban which may go in effect after the Florida Supreme Court rules on whether the 15-week ban is permissible under the state constitution. Although most abortions happen before 10 weeks of pregnancy, states with gestational limits earlier in pregnancy also have other restrictions in place that constrain access to abortion by delaying it. For instance, in states where telemedicine for abortion is banned and there are waiting periods in place, a pregnant patient may no longer meet the gestational limit by the time they are able to get an appointment to get their abortion.
Seven more states have gestational limits later in pregnancy, but before viability, a point that varies from person to person and also by the medical resources that are offered in their community, but is generally estimated to be at around 24 weeks LMP. States with these gestational limits are Utah, which bans abortions after 18 weeks LMP and Indiana, Iowa, Kansas, North Carolina, Ohio, and South Carolina, which currently ban abortion after 22 weeks LMP.
Waiting Periods and Ultrasound Requirements
Seven states – Arizona, Florida, Georgia, Indiana, Iowa, Kansas, and North Carolina, all of which have pre-viability gestational limits – also require clinicians to perform ultrasounds before providing abortion care. These laws often require that the ultrasound be performed by the same clinician that will be providing the abortion care, even though there is no medical rationale for this requirement. Thirteen states have mandatory waiting periods between the initial required counseling session (at which an ultrasound may also be required) and the appointment where the pregnancy will be terminated. These waiting periods range from 24 to 72 hours in duration. All states that have ultrasound requirements also have mandatory waiting periods. In conjunction, these requirements often result in the pregnant person having to attend two separate in-person appointments with their abortion provider. In states with early gestational limits, such as Florida, which currently bans abortions after 15 weeks LMP, these requirements may push abortion care out of reach for pregnant people.
Medication Abortion Restrictions
Restrictions on Telehealth for Abortion
Nine states that do not ban abortions generally have laws that effectively outlaw telehealth for medication abortion. Several states have laws that explicitly ban telehealth for abortion. Others have restrictions requiring medication abortions to take place in clinics or for the prescribing clinician to be present when the pregnant person takes the first medication in the regimen, despite the elimination of the FDA in-person requirement for medication abortion. States that require an ultrasound effectively block telehealth for abortion, since the pregnant patient must have at least one in-person visit to get the ultrasound. Regardless of the mechanisms these laws employ, their results are the same: they prevent people from accessing abortion care via telehealth. This can be especially burdensome for people who live in rural areas far from an abortion clinic, people who need to arrange child care and/or need to take time off from work for appointments, and people traveling to other states to receive abortion care.
Many states only authorize physicians to provide abortion care, while others allow advanced practice clinicians (such as physician assistants and some nurses) to provide abortion care that is within their scope of practice. Laws requiring licensed physicians to provide abortion care restrict the number of providers available, despite research demonstrating that medication abortion (and aspiration abortions) are just as safe when provided by an advanced practice clinician. Currently, 15 states only authorize physicians to provide medication abortions, of these, 11 have pre-viability gestational bans. This restriction limits the credentialing of the providers that are permitted to offer abortion, and ultimately impacts access for people seeking abortions within the limited gestational period abortions are not banned.
Restrictions on Minors’ Ability to Access Abortion Care
In 15 states where abortion is not completely banned, minors must obtain the consent of their parents or legal guardian to receive abortion care. Six other states require that the parents or legal guardian of the minor be notified before the minor receives abortion care. Most states with these requirements contain provisions that allow a judge to waive the consent or notification requirement. In states with consent requirements, this leaves the determination of whether or not the minor can receive an abortion up to a judge. Judges use different criteria for judicial bypass of the consent requirement, often to the detriment of the minor. For instance, judges have prevented minors from receiving an abortion, deeming them not mature enough to make such a medical decision for themselves, despite their assertions that they do not wish to continue their pregnancies.
Even in cases where a minor is able to receive judicial bypass, the process is time-consuming and can result in delays in the timing of the abortion, even when the minor is ultimately permitted to obtain an abortion. Additionally, these restrictions have their own waiting periods, for example, requiring that notice or consent be given 24-48 hours prior to the minor receiving an abortion. Even when the minor’s parents or legal guardian grant consent, these waiting periods can delay care.
New State Law that May not Have Been Permitted Under Casey
Some states have turned to restrictions that ban certain types of abortions without directly banning abortion care. For instance, after having their abortion ban blocked in court, the Utah legislature passed a law that would have banned all abortions not provided in a hospital, effectively banning all clinic-based abortions. This ban was temporarily blocked by a state court in May 2023. Similarly, after having an abortion ban blocked in court, the Wyoming legislature passed a ban on medication abortion, which is slated to go in effect July 1st, 2023. And in Montana – where the state Supreme Court recognized in a 1999 opinion that their constitution protects the right to abortion – the legislature enacted a law banning D&E procedures (the most common abortion method after 15 weeks LMP). Enforcement of this ban has also been blocked by a state court.
The accessibility of abortion in any given state does not rest entirely on whether or not it is banned. In many states where abortion is not fully banned, state laws nevertheless restrict access to it. These restrictions typically sharply curtail access to abortion, and in states with several restrictions in place, they can push access to abortion effectively out of reach.