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State policies on late-term abortions

State policies on late-term abortions

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Published by Ryan Chatelain
Report by the Guttmacher Institute
Report by the Guttmacher Institute

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Categories:Types, Research
Published by: Ryan Chatelain on Feb 11, 2013
Copyright:Attribution Non-commercial

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09/16/2013

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GUTTMACHER INSTITUTE
State Policies on Later Abortions
 
BACKGROUND:
In its landmark 1973 abortion cases, the U.S. Supreme Court held that a woman’s right toan abortion is not absolute and that states may restrict or ban abortions after fetal viability, provided that their  policies meet certain requirements. In these and subsequent decisions, the Court has held that
 
even after fetal viability, states may not prohibit abortions “necessary to preserve the life or health” of thewoman;
 
“health” in this context includes physical and mental health;
 
only the physician, in the course of evaluating the specific circumstances of an individual case, can definewhat constitutes “health” and when a fetus is viable; and
 
states may not require additional physicians to confirm the attending physician’s judgment that the woman’slife or health is at risk in cases of medical emergency.Although the vast majority of states restrict later-term abortions, many of these restrictions have been struck down. Most often, courts have voided the limitations because they do not contain a health exception; contain anunacceptably narrow health exception; or do not permit a physician to determine viability in each individual case, but rather rely on a rigid construct based on specific weeks of gestation or trimester. Nonetheless, statutes conflicting with the Supreme Court’s requirements remain on the books in some states. For example, the law in Michigan permits a postviability abortion only if the woman’s life is endangered and laws inseveral other states ban abortion at a specific point in gestation. Most recently, several states have enacted lawsthat ban abortion at 20 weeks’ post-fertilization—well before viability—based on the spurious assertion that afetus can feel pain at that point. Dating a pregnancy from fertilization goes against convention. When discussing pregnancy, medical professionals customarily date a pregnancy from the first day of the woman’s last menstrual period, because that is the date most women can pinpoint. Fertilization commonly takes place two weeks after thefirst day of a woman’s last menstrual period. Accordingly, a pregnancy of normal gestational length is consideredto last approximately 40 weeks from the beginning of a woman’s last menstrual period—or 38 weeks’ post-fertilization.
CONTINUED
Advancing sexual and reproductive health worldwide through research, policy analysis and public education.
125 Maiden Lane 1301 Connecticut Avenue, N.W. New York, NY 10038 Washington, DC 20036212.248.1111 202.296.4012www.guttmacher.org www.guttmacher.orginfo@guttmacher.org policyworks@guttmacher.org© 2013, Guttmacher Institute
 
S
TATE
P
OLICIES IN
B
RIEF
 
As of FEBRUARY 1, 2013
 
GUTTMACHER INSTITUTE FEBRUARY 1, 2013
HIGHLIGHTS:
 
41 states prohibit some abortions after a certain point in pregnancy.
 
22 states impose prohibitions at fetal viability.
 
4 states impose prohibitions in the third trimester.
 
15 states impose prohibitions after a certain number of weeks, generally 24; 7 of these states banabortion at 20 weeks post-fertilization or its equivalent of 22 weeks after the woman’s last menstrual period on the grounds that the fetus can feel pain at that point in gestation.
 
The circumstances under which later abortions are permitted vary from state to state.
 
29 states permit later abortions to preserve the life or health of the woman.
 
9 states unconstitutionally ban later abortions, except those performed to save the life or physical healthof the woman.
 
3 states unconstitutionally limit later abortions to those performed to save the life of the woman.
 
Some states require the involvement of a second physician when a later-term abortion is performed.
 
13 states require that a second physician attend the procedure to treat a fetus if it is born alive in all or some circumstances.
 
10 states unconstitutionally require that a second physician certify that the abortion is medicallynecessary in all or some circumstances.
CONTINUED
 
GUTTMACHER INSTITUTE FEBRUARY 1, 2013
L
ATER 
A
BORTION
P
OLICIES
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Alabama 20 weeks postfertilization
*
X POSTVIABILITY POSTVIABILITY
 
Arizona X
X
POSTVIABILITYArkansas X X XCalifornia X XConnecticut X XDelaware X X
ź
 Florida 24 weeks LMP X XGeorgia X
X
†,
 Hawaii X XIdaho 20 weeks postfertilization X POSTVIABILITYIllinois X X XIndiana 20 weeks postfertilization X XIowa 3rd trimester LMP
 
XKansas 22 weeks LMP X POSTVIABILITYKentucky X XLouisiana 20 weeks postfertilization X POSTVIABILITYMaine X XMaryland X XMassachusetts 24 weeks LMP XMichigan X XMinnesota X X XMissouri X X XMontana X X
Ȍ
X Nebraska 20 weeks postfertilization X Nevada 24 weeks postfertilization X New York 24 weeks LMP X X North Carolina 20 weeks LMP X North Dakota X X X XOhio X X X XOklahoma 20 weeks postfertilization X POSTVIABILITYPennsylvania 24 weeks LMP
 
X
Ȍ
X XRhode Island 24 weeks LMP XSouth Carolina 3rd trimester postfertilization
 
X XSouth Dakota 24 weeks LMP XTennessee X XTexas 3rd trimester LMP X
ȟ
 Utah X X
,,
Ȍ
 Virginia 3rd trimester LMP X XWashington X XWisconsin X XWyoming X X
TOTAL 22 19 29 9 3 13 10
LMP- Calculates the beginning of pregnancy from the woman’s last menstrual period. States that do not explicitly enumerate the manner in which gestational age should be determined are labeled as ‘LMP’ in keeping with standard medical practice.Postfertilization- Calculates the beginning of pregnancy from the date of conception; 20 weeks postfertilization is equivalent to 22 weeks LMP.
ź
Enforcement permanently enjoined by a court order; policy not in effect* Based on the assertion that the fetus can feel pain at 18 or 20 weeks postfertilization.A law in Arizona (that would ban abortion at 18 weeks postfertilization) is not effect pending the outcome of litigation. A new Georgia law that would ban abortionat 20 weeks postfertilization is only being enforced against postviability abortions. pending the outcome of litigation.Also permitted in case of rape or incest, in Arkansas this exception only applies to minors.
ȟ
Also permitted in case of fetal abnormality; in Georgia, Louisiana and Utah, the law applies to a lethal abnormality.
Ȍ
The exception permits abortions when the woman suffers from a “substantial and irreversible impairment of a major bodily function.”
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CONTINUED

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