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 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. As many Republican-led states ban abortion, states controlled by Democrats could expand access after fetal viability.
Shifting Legislation in Democratic-Led 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. 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. 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.
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. 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.
The Legal Significance of Fetal 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. The Supreme Court's ruling overturning Roe v. Wade gave states the power to individually regulate abortion — or even ban it completely — before viability, known as the point when a fetus can survive outside the womb.
The following table outlines how late in pregnancy each state currently allows abortions based on Guttmacher Institute and KFF research:
| Gestational Limit | States Affected |
|---|---|
| Fertilization | 14 states |
| Six weeks | South Carolina and Georgia |
| 12 weeks | Nebraska and North Carolina |
| 15 weeks | Arizona and Florida |
| 18 weeks | Utah |
| 22 weeks | Iowa, Kansas, Ohio and Wisconsin |
| 24 weeks | 4 states |
| Viability | 14 states |
| Third trimester | Virginia |
| No limit | 6 states and Washington, D.C. |
Medical Reality vs. Public Perception
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. About 93% of reported abortions in 2019 were performed at or before 13 weeks of pregnancy, 6% were conducted between 14 and 20 weeks and 1% were performed at or after 21 weeks.
Unlike earlier abortions, 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. People who tend to have abortions later in a pregnancy do so because of "medical concerns such as fetal anomalies or maternal life endangerment, as well as barriers to care that cause delays in obtaining an abortion," per KFF.
Access and Barriers to Care
Abortion at any stage is still difficult to access for many people. Nationwide, only 54% of Americans said it would be "very" or "somewhat" easy to obtain an abortion, down from 64% in 2019, per a Pew Research Center survey in April. In 2017, Guttmacher reported that there are no abortion clinics in around 89% of counties across the U.S. Providers who perform abortions near a state's gestational limit face additional hurdles. They must be "really good at ultrasound" to determine the exact gestational age of the pregnancy to avoid violating the law.
Current Political Climate
Ahead of the 2024 election, abortion has divided GOP presidential candidates over whether the federal government should restrict access nationally. After Ohio voted to protect abortion rights in November, advocates are to trying to get similar measures on the ballot in 2024 in key states like Arizona, Nevada and Florida. The Supreme Court has also agreed to review a dispute over the availability of the abortion pill mifepristone, and a decision is likely by the end of June.