Since the U.S. Supreme Court overturned Roe v. Wade in June 2022 (Dobbs v. Jackson Women’s Health Organization), the legal landscape for abortion has shifted dramatically. This ruling ended nearly 50 years of federally protected abortion rights, giving states the authority to govern their own abortion laws. This week, we’ll explore the current state of procedural and medication abortion laws, as well as some of the key legal battles shaping access to abortion across the country.
State-Level Bans and Restrictions on Procedural Abortions
Several states have enacted strict bans or significant restrictions on procedural (surgical) abortions. These include:
- Near-total bans: States like Texas, Oklahoma, Alabama, and Missouri have enacted near-total bans on abortions, with exceptions only in cases where the mother’s life is at risk. In many cases, there are no exceptions for rape or incest.
- 6-week bans: States like Georgia and South Carolina have passed "heartbeat bills," which ban abortions after approximately six weeks of pregnancy—often before many women know they are pregnant.
- Gestational limits: Other states, like Florida and Arizona, have enacted restrictions based on pregnancy length, with bans after 15 or 20 weeks. This year, Arizona gained attention when its Civil War-era ban on nearly all abortions became enforceable after the state Supreme Court upheld the dormant 1864 law. This law criminalized all abortions except when a woman’s life was at risk. However, in May, Arizona passed HB2677, officially repealing the 1864 ban and they currently have a Ballot Initiative to protect access to abortion in the 2024 Election. In Florida, legislators passed a new 6-week ban this year, tightening restrictions from the state’s previous 15-week limit set in 2022.
Trigger Laws
When Roe was overturned, 13 states had "trigger laws" ready to automatically ban or severely restrict abortions. These laws are now in effect, making procedural abortions illegal or heavily restricted in states like Louisiana and South Dakota.
In contrast, states like California, New York, and Illinois have enacted laws that protect abortion rights. These states ensure access remains legal and provide legal protections for healthcare providers assisting with abortions, including for out-of-state residents. These areas have become known as "abortion sanctuary states."
Travel for Abortion Care: Navigating Interstate Access
As abortion restrictions tighten in many states, increasing numbers of women are traveling across state lines to access abortion care. States such as Colorado, New Mexico, and Illinois have experienced a sharp rise in out-of-state patients seeking procedural abortions, underscoring significant geographical disparities in access. For women in restrictive states, these journeys are often the only viable option to obtain safe care.
In several states, doctors who perform unauthorized abortions risk severe consequences, including felony charges and potential revocation of medical licenses. However, most of these laws stop short of penalizing the women who undergo the procedure.
Justice Brett Kavanaugh addressed the issue of interstate travel in his Dobbs decision concurrence, stating that states cannot legally bar residents from traveling for abortion services, asserting what he describes as a “constitutional right to interstate travel.” While the U.S. Constitution does not explicitly affirm this right, the Supreme Court has issued decisions since 1867 that support the interpretation of a protected right to travel across state lines.
This constitutional interpretation continues to play a critical role in safeguarding abortion access across state borders, as many individuals depend on travel for their reproductive healthcare.
Restricting Abortion-Related Travel Legislation: New "Abortion Trafficking" Laws
In a recent wave of abortion restrictions, some states are now focusing on abortion-related travel, especially concerning minors. Idaho led the way in April 2023, passing the first "abortion trafficking" law (ID H0242), criminalizing adults who assist unemancipated minors in obtaining an abortion without parental consent, even within Idaho's borders. This includes actions such as "recruiting, harboring, or transporting" the minor. Violators face two to five years in prison and could also be sued by the minor's parent or guardian. Idaho’s law does exclude parents of the minor in cases of sexual assault from filing lawsuits, although criminal penalties remain in place.
Following Idaho, Tennessee passed similar legislation (TN SB1971) in July 2024. Tennessee’s law criminalizes transporting, harboring, or assisting a minor in obtaining an abortion or abortion-inducing drugs without parental consent. It allows for wrongful death civil suits in certain cases, creating a new offense called "abortion trafficking of a minor." The law carves out exceptions for parents, guardians, and medical professionals providing pregnancy-related care.
Alabama, Mississippi, and Oklahoma have since introduced similar bills, although these did not pass in the most recent legislative sessions. Each of these proposed laws aimed to criminalize assisting minors with out-of-state abortion procedures without parental consent, with similar penalties, including fines, imprisonment, and civil liabilities. Provisions in the Alabama proposal would also permit parents to make healthcare decisions for their children, with certain defenses for medical emergencies. Mississippi and Oklahoma bills provided the state Attorney General with the authority to prosecute if local officials chose not to pursue these cases.
These “abortion trafficking” laws highlight an emerging trend where states aim to enforce parental consent by restricting the interstate movement of minors seeking abortion, adding layers of legal consequences for adults who attempt to help.
Medication Abortions: A New Battleground
Medication abortions, which use mifepristone and misoprostol, account for over half of all U.S. abortions and have become a major focal point in the post-Roe landscape.
- State divergence: Some conservative states have sought to restrict access by banning the mailing of abortion pills or requiring in-person doctor visits. In contrast, progressive states are protecting telemedicine services and allowing the mailing of abortion pills.
- Ongoing legal battles: There have been legal challenges to the FDA’s approval of mifepristone, with some conservative states attempting to limit its availability. These legal battles could further complicate access, as federal rulings may eventually play a role in determining how and where abortion pills can be dispensed.
Louisiana - The Catherine and Josephine Herring Act
The Louisiana Catherine and Josephine Herring Act (SB 276) recently passed in Louisiana, seeks to classify two common drugs used for medication abortions and miscarriage management, mifepristone and misoprostol, as “controlled dangerous substances.” This move has drawn significant backlash from medical experts and the Biden administration, as no other state currently regulates these drugs as controlled substances, a category typically reserved for illegal drugs or medications with a high potential for misuse. The bill may serve as a model for other states considering similar restrictions on medication abortion.
Key Provisions and Penalties
Initially, the bill aimed to penalize individuals for administering these drugs without a pregnant woman's consent, criminalizing this act as “coerced abortion by means of fraud.” However, amendments in the Louisiana House added more severe restrictions, making the possession of mifepristone or misoprostol without a prescription punishable by five to ten years in prison and/or a fine between $10,000 and $75,000. The legislation classifies these medications as Schedule IV drugs, alongside substances with low abuse potential but some risk of dependency, like Valium and Lunesta.
State Sen. Thomas Pressly, who sponsored the bill, cited a personal motivation, stating his sister was unknowingly given misoprostol. This aligns with the bill's original focus on criminalizing intentionally using medications to cause or attempt to cause an abortion without the pregnant person’s knowledge or consent. However, critics argue the bill’s scope far exceeds its stated intent, creating barriers to necessary reproductive and miscarriage care.
Medical Community's Concerns
The bill has faced widespread opposition from over 270 Louisiana healthcare providers, who argue that mifepristone and misoprostol pose no public health risk and have low potential for abuse. Ellie Schilling, a reproductive health law expert at Tulane Law School, criticized the bill’s language as “wildly inappropriate,” warning that it could lead to invasive state oversight, including the creation of a database tracking every prescription for mifepristone and misoprostol. This could mean heightened government surveillance of both patients and providers.
Implications
This bill aligns with Louisiana’s conservative stance on reproductive rights following the overturn of Roe v. Wade. For abortion rights advocates, the act underscores a concerning trend toward restrictive reproductive healthcare laws, while opponents argue it is necessary to safeguard against potential misuse of abortion medications.
Banning medication abortions, which use mifepristone and misoprostol, raises serious issues. For women in rural or restrictive states, these pills offer safe, early abortion care; without them, many face limited options and may turn to unsafe alternatives. The ban disproportionately impacts marginalized groups, including low-income women and people of color, who often lack the resources to travel for surgical abortions. Telemedicine, which has expanded access to abortion care in underserved areas, also suffers, creating more pressure on in-person clinics. Additionally, banning FDA-approved medication raises legal concerns and risks privacy issues due to increased monitoring of providers and patients. In denying early medication abortions, bans can delay necessary care, leading to greater health risks and straining an already stretched healthcare system.
Conclusion: A Patchwork of Abortion Laws
In this post-Roe landscape, abortion laws are increasingly defined by state boundaries, creating a complex patchwork of rights and restrictions across the country. For some, crossing state lines has become essential for accessing care, while others face heightened legal risks. With new restrictions targeting both procedural and medication abortions, access remains in flux, influenced by ongoing legal battles and evolving state laws. As states redefine their stances, these shifts in reproductive healthcare policy will continue to impact millions. Stay informed as we track the latest legal developments and legislative changes shaping the future of abortion access in the U.S.
Cover Photo by Gayatri Malhotra on Unsplash
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