A look at abortion laws by state after Roe v. Wade overturned

In a follow-up regarding the overturned Roe v. Wade decision by the U.S. Supreme Court on Friday, June 24, individual states are now enforcing or developing laws on the subject. Some groups are also protesting the decision as well.

The following information will enhance understanding of the information presented further in this article. It has been obtained from the Center for Reproductive Rights and is described verbatim as follows in regard to abortion bans.

Abortion bans are categorized into Pre-Roe bans, which most states repealed as of 1973 once Roe made them unenforceable. However, some states and territories never repealed their pre-Roe abortion bans. Now that the Supreme Court has overturned Roe, these states could try and revive these bans. Trigger bans are abortion bans passed since Roe was decided that are intended to ban abortion entirely if the Supreme Court limited or overturned Roe or if a federal Constitutional amendment prohibited abortion. Pre-viability gestational bans are l laws that prohibit abortion before a fetus is viable; these laws were unconstitutional under Roe. Gestational age is counted in weeks either from the last menstrual cycle (LMP) or from fertilization. Method bans are laws that prohibit a specific method of abortion care, most commonly dilation and extraction (D&X) procedures and dilation and evacuation (D&E) procedures. Reason bans are laws that prohibit abortion if sought or potentially sought for a particular reason. These bans typically name sex, race, and genetic anomaly as prohibited reasons. However, there is no evidence that pregnant people are seeking abortion care because of the sex or race of their fetus. Criminalization of self-managed abortion (SMA) informs that some states criminalize people who self-manage their abortion, i.e., end their pregnancies outside of a health care setting. SB-8 Copycats are laws that are modeled after Texas SB 8, the vigilante law that took effect in September 2021. These laws ban abortion at an early gestational age and are enforced through private rights of action, which authorizes members of the public to sue abortion providers and people who help others access abortion care.

Abortion Restrictions fall under the following. TRAP laws are targeted regulation of abortion providers (TRAP) laws single-out physicians who provide abortion care and impose various legal requirements that are different from and more burdensome than those imposed on physicians who provide comparable types of care. These laws do not increase patient safety and are counter to evidence-based clinical guidelines. TRAP laws fall into several categories, including regulation of locations where abortion is provided and/or facility specifications, provider qualifications, and reporting requirements. Compliance is often costly and can require unnecessary facility modifications. Parental involvement are laws that require providers or clinics to notify parents or legal guardians of young people’s seeking abortion prior to an abortion (parental notification) or document parents’ or legal guardians’ consent to a young person’s abortion (parental consent). Consent laws are laws that require pregnant people to receive biased and often inaccurate counseling or an ultrasound prior to receiving abortion care, and, in some instances, to wait a specified amount of time between the counseling and/or ultrasound and the abortion care. These laws serve no medical purpose but, instead, seek to dissuade pregnant people from exercising bodily autonomy. The Hyde Amendment refers to the following information: In 1976, Rep. Henry Hyde (R-IL) successfully introduced a budget rider, known as the Hyde Amendment, that prohibits federal funding for abortion. Congress has renewed the Hyde Amendment every year since its introduction.

Abortion Protections include Statutory protections for abortion, which are laws passed by states that protect the right to abortion. State constitutional protection refers to a declaration from the state’s highest court affirming that the state constitution protects the right to abortion, separately and apart from the existence of any federal constitutional right.

Abortion Access consists of the following: Public funding in which states are required to provide public funding through the state Medicaid program for abortion care necessitated by life endangerment, rape, or incest. States can also dedicate state-only funding to cover all or most medically necessary abortion care for Medicaid recipients; Private insurance requirements in which states can require private health-insurance plans that are regulated by the state to contain specific benefits, including abortion coverage. Clinic safety and access are laws that prohibit, for example, the physical obstruction of clinics, threats to providers or patients, trespassing, and telephone harassment of the clinic, and/or create a protected zone around the clinic. Abortion Provider Qualifications refers to the scope of practice for health-care practitioners is regulated by state legislatures and licensing boards. Generally, state legislation does not outline specific medical care that is within or beyond a practitioner’s scope of practice. However, many states have treated abortion differently by restricting the provision of abortion to physicians. Other states have taken proactive measures to expand the types of clinicians who may lawfully provide abortion care by repealing physician-only laws or expressly authorizing physician assistants, certified nurse midwives, nurse practitioners, and other qualified medical professionals to provide abortion care through legislation, regulations, or attorney general opinions. Interstate Shield refers to states that are hostile to abortion have made it clear that they want to prohibit abortion entirely, both inside and outside of their borders. Interstate shield laws protect abortion providers and helpers in states where abortion is protected and accessible from civil and criminal consequences stemming from abortion care provided to an out-of-state resident.

Additionally, the terms in effect and Enjoined are used. If a law has been enacted and has passed the effective date presented by legislation, the law is in effect. Enjoined will refer to states that cannot enforce a law that would otherwise be effective because of the decision by a court to enjoin its enforcement temporarily or permanently.

The Center for Reproductive Rights has provided the following methodology for how the individual states are now responding to the reversal of Roe v. Wade. Their methodology is stated as such, “To determine into which category to place each state, D.C., and the U.S. territories, we first examined whether the right to abortion is protected under state, territory, or D.C. law (“Protected”); if it is, we looked to see whether the state, territory, or District of Columbia enacted laws or policies that enhanced access to abortion care (“Enhanced Access”). If abortion is not protected by state or territory law (“Not Protected”), we then looked to see if the government enacted laws or policies to restrict or prohibit access to abortion care (“Hostile”). Finally, we examined states that have criminalized abortion and prohibited it entirely (“Illegal”). Based on our analysis, we then placed each state, territory, and the District of Columbia into one of these five categories, which exist along a spectrum from “Expanded Access” to “Protected” to “Not Protected” to “Hostile” and, finally, to “Illegal.”

According to data obtained from the Center for Reproductive Rights, the following states are considered to be protected: Alaska, Colorado, Delaware, the District of Columbia, Florida, Kansas, Maine, Maryland, Massachusetts, Minnesota, Montana, Nevada, and Rhode Island. States that are considered to have enhanced access are California, Connecticut, Hawaii, Illinois, New Jersey, New York, Oregon, Vermont, and Washington. States that are not protected include New Hampshire, New Mexico, Puerto Rico, U.S. Virgin Islands, and Virginia. Hostile states include Alabama, American Samoa, Arizona, Georgia, Guam, Idaho, Indiana, Iowa, Louisiana, Michigan, Mississippi, Nebraska, North Carolina, North Dakota, the Northern Mariana Islands, Ohio, Pennsylvania, South Carolina, Tennessee, Texas, West Virginia, Wisconsin and Wyoming. And six states which include Arkansas, Kentucky, Missouri, Oklahoma, South Dakota and Utah declare abortion as illegal.

Furthermore, it is noted that West Virginia State Code 61-2-8 stated the following in regard to abortion.

“Abortion; penalty.

Any person who shall administer to, or cause to be taken by, a woman, any drug or other thing, or use any means, with intent to destroy her unborn child, or to produce abortion or miscarriage, and shall thereby destroy such child, or produce such abortion or miscarriage, shall be guilty of a felony, and, upon conviction, shall be confined in the penitentiary not less than three nor more than ten years; and if such woman die by reason of such abortion performed upon her, such person shall be guilty of murder. No person, by reason of any act mentioned in this section, shall be punishable where such act is done in good faith, with the intention of saving the life of such woman or child.”

Nationwide there are protestors rallying against the reversal of Roe v. Wade while others are also celebrating. Even in West Virginia this can be seen. A protest at the Harrison County Courthouse Plaza located at 301 West Main Street in Clarksburg occurred Monday, June 27 at 6 p.m. The Record Delta will continue to provide coverage and updates regarding the subject. See the next edition on Thursday, June 30 for details.


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