Are Blue States Ready To Relax Their Bans On Later Abortions?

You hear people say the term “third rail” all the time in politics, usually in reference to an issue that is too volatile — too charged — to touch. For decades, abortion later in pregnancy has been one of those issues. 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.

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. As many Republican-led states ban abortion, states controlled by Democrats could expand access after fetal viability. 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. Additionally, 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.

Current Legislative Efforts 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.

Understanding Viability and Later Abortions

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. 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.

Eleven states that are fully controlled by Democrats still ban abortion after 24 weeks of pregnancy, with some exceptions. Often, it’s the scope of the exceptions that are key. Only four clinics in the country will perform abortions in all three trimesters of pregnancy. Abortion-rights advocates and legal experts argue that some states’ exceptions are too limited and give too little deference to medical opinion.

Statistical Context of Later Abortions

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. Unlike earlier abortions, which happen for a wide range of reasons, many abortions in the late second or early third trimester are prompted by medical issues like fetal abnormalities or risks to a pregnant person’s health.

The following table summarizes key data points regarding later abortions and current restrictions: