Are Blue States Ready To Relax Their Bans On Later Abortions?
For decades, abortion later in pregnancy has been one of those issues that is too volatile — too charged — to touch. But the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade, has changed the current running through the abortion debate. And now Democratic legislators may have new opportunities to try and expand abortion rights — including abortions in the late second and early third trimester of pregnancy.
Current Legislative Initiatives in Blue States
Last week, Maine’s Democratic governor, Janet Mills, announced a new package of legislation designed to make it easier to get an abortion, including a measure that would expand women’s ability to get abortions after a fetus can live outside the womb. The proposed bill doesn’t remove the ban, but it would loosen the restriction by giving doctors more discretion to recommend a post-viability abortion. In Minnesota, some lawmakers are working to repeal a similar ban, which many abortion providers still follow even though it was paused by a court more than 40 years ago. Furthermore, there is also a debate in California about whether the state’s newly passed constitutional protection for reproductive rights overrides the state’s ban on abortion after viability.
The Legal History and Definition of Viability
Viability became a legally important dividing line after the Supreme Court’s 1992 decision in Planned Parenthood v. Casey, when the justices ruled that because of changes in medical care, states were now permitted to ban abortion after viability. Abortions after the point of fetal viability — which generally happens around 24 weeks of pregnancy — are often restricted no matter which party runs a state. Eleven states that are fully controlled by Democrats still ban abortion after 24 weeks of pregnancy, with some exceptions. In general, lawmakers said that the proposed Maine bill will broaden the state’s exception to explicitly give doctors more leeway, citing the case of a woman who had to leave the state for an abortion because of a rare and deadly fetal abnormality.
Public Perception vs. Medical Reality
In general, Americans do not know much about abortion, but the gap between belief and reality is particularly large when it comes to later abortion. Kaiser Family Foundation data from 2020 found that only a small share of Americans correctly identified that less than 5 percent of abortions happen after 20 weeks of pregnancy — in fact, that year, the share was about 1 percent of abortions, according to the Centers for Disease Control and Prevention.
The following table summarizes the data regarding abortion access and timing:
| Metric | Data Point |
|---|---|
| Percentage of abortions occurring after 20 weeks (CDC) | About 1 percent |
| Total clinics in the country performing abortions in all three trimesters | 4 |
| Democratic-controlled states banning abortion after 24 weeks | 11 |
| General point of fetal viability | Around 24 weeks |
Political Climate and Future Outlook
Abortion in the late second or early third trimester is still unpopular, but in a limited form, it’s less unpopular than a full ban — which may remove some risk for Democratic lawmakers who want to ease access to abortion after viability. Often, it’s the scope of the exceptions that are key. A rising share of Democrats want abortion to be legal in all cases, which could give blue-state lawmakers even more of a reason to relax restrictions.