May 18, 2021

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Beyond law

A Guide to Abortion Laws by State | Best States

With a backdrop of a new administration in the White House and a newly more conservative Supreme Court, some expected 2021 to be contentious year for abortion legislation. Despite recent federal action from the Biden administration to expand abortion access by lifting Trump-era policies such as those related to abortion medication by mail, much of the battle is playing out in states.

A March report from the Guttmacher Institute, a sexual and reproductive health research and policy organization, identified states as the “main abortion battleground in 2021,” which appears to be the case thus far, as states enacted 28 abortion restrictions in the last week alone, according to a new report from the organization.

Legislation signed between April 26-29 accounted for 46% of all legislation enacted during the year, according to the report, propelling 2021 toward becoming the most restrictive year for abortion since Roe. v Wade, the 1973 landmark case, was passed. Some of these policies – such as those challenging abortion bans at a certain point during pregnancy – are direct challenges to Roe v. Wade, which protects the right to an abortion until a fetus is viable, and are “intended to provide the Supreme Court with the opportunity to overturn abortion rights outright and are among those closest to reaching the Court’s docket,” the March report says.

“The year 2021 is well on its way to being a defining one in abortion rights history,” the latest report says.

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Here are the state actions so far in 2021:

States Restricting Abortion Access:

On April 27, Gov. Doug Ducey signed SB1457, banning abortions sought solely due to genetic abnormalities. The bill additionally bans mail delivery of abortion-inducing medication, and restricts organizations that provide abortion care from receiving state funds.

Gov. Asa Hutchinson on March 9 signed SB6, the Arkansas Unborn Child Protection Act – a near-total abortion ban. The bill bans all abortions, including in the case of rape or incest, excepting only if the woman’s life is endangered. The governor has since stated that the bill is a “direct challenge” to Roe v. Wade. Earlier in the year, Hutchinson also signed HB1195, mandating that pregnancy support programs be available to people seeking abortion care, among other services, and that providers must report each patient in a state database. Later in March, the governor approved SB85, requiring that individuals seeking abortion receive an ultrasound with the image displayed and a simultaneous verbal description of the fetus from the provider; the law is slated to go into effect in June. Hutchinson also signed SB289, creating a refusal clause for providers for any health care services on the grounds of their religious, ethical or moral beliefs. That is also scheduled to go into effect in June.

On April 27, Gov. Brad Little signed HB366, mandating that physicians check for a fetal heartbeat, and banning abortion if a heartbeat is detected, except in the case of a medical emergency. The bill will only go into effect if a federal appeals court upholds a similar heartbeat ban.

On April 29, Gov. Eric Holcomb signed HB177, requiring providers to tell patients about the possibility of discontinuing medication-induced abortions after they are initiated. Similar “abortion reversal” laws have been enacted in several other states, although their viability is not supported by some scientists.

In January, the state Legislature voted to refer an amendment to the state’s constitution in an August 2022 special election. The measure (HCR 5003) would amend the state’s constitution by affirming that there is no constitutional right to abortion or government funding for abortion, although the Legislature may pass laws related to abortion in the case of incest or rape and when the mother is in danger.

The Kentucky Legislature in January enacted SB9 requiring physicians to “give medically appropriate and reasonable life-saving and life-sustaining medical care and treatment to all born-alive infants,” including preserving the life of a fetus delivered alive after an abortion. Lawmakers likewise in February enacted measure HB2, which grants Kentucky’s attorney general more authority over abortion clinics that violate state laws. In March, the Legislature also approved measure HB91, which will appear on the ballot in the state’s November 2022 election and would amend the the state’s constitution by asserting that there is no constitutional right to abortion or required government abortion funding.

Gov. Greg Gianforte on April 26 signed three bills restricting abortion into law: HB136 bans abortion starting at 20 weeks, HB140 requires doctors to offer patients an opportunity to view an ultrasound and hear a fetal heartbeat before an abortion, and HB171 adds regulation to how medication-induced abortions can be administered, such as requiring that the drugs used in the procedure be provided by a qualified medical practitioner.

Gov. Mike DeWine in January signed measure SB260 that prohibits using telemedicine for medication-induced abortions, instead requiring patients to take an initial dose of any drug in the presence of a physician. It was slated to go into effect in April, but a judge temporarily blocked the ban on April 7.

Gov. Kevin Stitt on April 27 signed a bill to outlaw abortion immediately if the U.S. Supreme Court were to overturn Roe v. Wade. The “trigger” bill follows Stitt’s signing of three abortion restrictions into law on April 26: HB2441, which requires physicians to check for a fetal heartbeat, banning abortions if a heartbeat is detected except in the case of physical risk for the pregnant person; HB1102, which bans providers from performing abortions outside of medical emergencies, with the threat of revoking their medical licenses for at least a year; and HB1904, which requires that all abortions be administered by providers who are board-certified in obstetrics and gynecology. These laws make Oklahoma the second state this year to sign a near-total abortion ban (after Arkansas) and the second state to sign a heartbeat abortion ban (after South Carolina).

In February, Gov. Henry McMaster signed into law a ban on abortion (SB1) when a fetal heartbeat is detectable. The measure, which was temporarily blocked by a federal district court, made exceptions if the woman’s life was at risk or fewer than 20 weeks into the pregnancy in the case of rape or incest.

Gov. Kristi Noem in February approved measure HB1051, requiring physicians to extend the same medical treatments they would use to preserve a child’s life to “every child born alive immediately following an abortion or an attempted abortion.” In March, the governor also signed measure HB1110, prohibiting abortion based on a fetus’ Down syndrome diagnosis or potential diagnosis, except when the mother’s life is in danger. Noem also signed measure HB1130 in March, mandating that abortion providers tell patients about the possibility to discontinue medication-induced abortion after it has been initiated, along with providing other required information during preabortion counseling.

Gov. Mark Gordon in April signed a Born Alive Infant-Means of Care bill, requiring physicians and providers to treat any “viable infant aborted alive” with the same care as any other infant born alive. It is scheduled to go into effect in July.

States Protecting or Expanding Abortion Access in State Law:

Gov. David Ige in April signed HB576, allowing some nurses and qualified medical professionals to perform abortions.

Gov. Michelle Lujan Grisham in February approved measure SB10, repealing abortion restrictions in the state that predate Roe v. Wade, including criminal penalties for certain abortions. It is scheduled to go into effect in June.

Gov. Ralph Northam signed measure SB1276/HB1896 in March, lifting the state’s abortion coverage ban within some state health insurance plans, which is scheduled to take effect in July.

State Restrictions to Abortion Access

Abortion is legal in all 50 states, but it’s not easily accessible in every state. Below is a table showing the most common restrictions to abortion access in all 50 states:

State

Viability Restriction

Restrictions Before Viability

Restrictions for Minors

Funding or Insurance Restrictions

Ultrasound Required

Counseling Required

Alabama

x

x

x

x

x

Alaska

x

Arizona

x

x

x

x

x

Arkansas*

x

x

x

x

California

x

Colorado

x

x

Connecticut

x

Delaware

x

x

x

District of Columbia

x

Florida

x

x

x

x

x

Georgia

x

x

x

x

Hawaii

x

Idaho*

x

x

x

x

Illinois

x

x

Indiana

x

x

x

x

x

Iowa

x

x

x

x

Kansas

x

x

x

x

x

Kentucky*

x

x

x

x

Louisiana*

x

x

x

x

x

Maine

x

Maryland

x

x

Massachusetts

x

x

Michigan

x

x

x

x

Minnesota

x

x

x

Mississippi*

x

x

x

x

x

Missouri*

x

x

x

x

Montana

Nebraska

x

x

x

x

Nevada

x

x

New Hampshire

x

x

New Jersey

New Mexico

New York

x

North Carolina

x

x

x

x

x

North Dakota*

x

x

x

x

Ohio

x

x

x

x

x

Oklahoma*

x

x

x

x

x

Oregon

Pennsylvania

x

x

x

x

Rhode Island

x

x

x

South Carolina

x

x

x

x

South Dakota*

x

x

x

x

Tennessee*

x

x

x

x

Texas

x

x

x

x

x

Utah*

x

x

x

x

Vermont

Virginia

x

x

x

Washington

x

West Virginia

x

x

x

x

Wisconsin

x

x

x

x

x

Wyoming

x

x

x

*States where abortion would be banned if Roe v. Wade were overturned

Source: The Guttmacher Institute