Talk:Abortion law in the United States by state

Unclear reference to 14th Amendment

(Apologies if this is the wrong way to bring up an issue).

Maybe this comes up a lot in the debates in the US, so Americans understand the reference, but the wiki article just quotes the 14th, implies its somehow relevant, doesn't say why, and doesn't mention it again:

"""The key deliberated article of the US Constitution is the Fourteenth Amendment, which states that:

   All persons born or naturalized in the United States [etc.]"""

Given that abortion relates to the unborn, and 14th relates to "born", its not at all clear how it relates to abortion, or perhaps the 14th relates to the rights of the mother? — Preceding unsigned comment added by 2001:569:7D6D:9200:8C30:742A:52FB:F15D (talk) 15:56, 11 April 2024 (UTC)

Extraneous asterisk - trigger laws with unusual clauses

In the "Bans of Abortion" table in the row for South Dakota, there is an asterisk next to the value "No" in the column "Trigger Law on any abortion".

There is no other asterisk in the article. Perhaps the original editor was referring to this point that there is something unusual about South Dakota's trigger law:

South Dakota has a unique "trigger" law saying abortion will be banned there, except to save the pregnant woman's life, effective "on the date that the states are recognized by the U.S. Supreme Court to have the authority to prohibit abortion at all stages of pregnancy."

Mississippi also has a timing associated with its trigger law:

Mississippi statute takes effect 10 days after the state’s attorney general determines in writing that the Supreme Court has overturned the ruling.

Is there anything unusual or notable about the other states' trigger laws?

Here is a reference where I saw this information. Here is an older document referring to another page which is 404.

Additional trigger law info.

I will delete the asterisk for now and when I have good references I am sure of, I will update the table again.

Recent tweaks

Hey all! I just did a fairly extensive set of tweaks to the state-by-state section. I didn't really change much content, but my goals were to:

• Rewrite the intro to this section to reflect the post-Dobbs landscape and explain the technical meaning of the "weeks" terminology we use throughout the page.
• Begin each state's section with a succinct one- or two-sentence description of the most important information about current legal status in that state:
  • Whether it's generally legal or illegal
  • If generally legal, up to how many weeks
  • If generally illegal, what exceptions if any are allowed
  • Whether there are more restrictive regulations currently blocked by litigation
• Standardize some of the terminology we use
• Update some material that is obviously out-of-date; prune some material that is no longer relevant, like legislative initiatives that haven't panned out

The whole section could definitely use some more updates or pruning -- I only added stuff that I happened to know about off the top of my head. For the most part I just rearranged the content that was already there. May add or delete more material later. I also think the stuff on DC and the territories should probably just be integrated into the larger state list, since in this area territorial/DC legislation functionally has the same impacts as in the states.--Jfruh (talk) 21:52, 20 August 2023 (UTC)

Did you remove the Iowa border? Iowa has a heartbeat bill currently blocked until their Supreme Court decides it. Not sure why the border was removed. JesusIsLord444 (talk) 17:43, 21 August 2023 (UTC)

See the reference in the article. The Iowa Supreme Court deadlocked on the issue, letting the lower court ruling that blocked the law stand. This effectively ends the legal process for this piece of legislation. If the legislature passes a new law, which it well may, we can update, but that one is finished. --Jfruh (talk) 17:44, 21 August 2023 (UTC)

The legislature did pass a new law in Iowa that’s essentially identical. That’s why I brought it up. https://www.desmoinesregister.com/story/news/politics/2023/07/17/iowa-fetal-heartbeat-abortion-law-court-ruling-temporary-injunction-kim-reynolds-pregnancy/70420027007/ JesusIsLord444 (talk) 19:19, 21 August 2023 (UTC)

Ah got it thank you. I'll update this and Montana today when I get a moment (or feel free to do it yourself if you have the time for it). Jfruh (talk) 20:38, 21 August 2023 (UTC)

Iowa now needs to be colored in red, as the heartbeat law is now currently effective and in force. https://sbaprolife.org/newsroom/press-releases/win-ia-supreme-court-allows-heartbeat-law-to-go-into-effect 69.21.251.222 (talk) 20:23, 7 July 2024 (UTC)

Ohio

Shouldn't Ohio be the Viability colour instead of the 22 week colour? TRJ2008 (talk) 19:21, 22 December 2023 (UTC)

No, because the 22 week ban hasn’t been overturned in court. It’s still the law there. It’s very possible that law won’t be overturned either, depending on how the courts decide to act JesusIsLord444 (talk) 04:30, 25 December 2023 (UTC)

Washington

Quote: "Abortion is explicitly legal in Washington up to the point of fetal viability, although there is no law prohibiting it afterwards."

I'm not sure what exactly does that mean... ? What does Washington state law say when it comes to abortion later in pregnancy? 41.66.99.246 (talk) 11:42, 10 April 2024 (UTC)

It means abortion is legal, because what's not illegal is legal.

But according to our state article that's not true. There are two codes, RCW 9.02.110, which allows abortion "prior to viability", and RCW 9.02.120, which makes any other abortion a Class C felony. — kwami (talk) 07:30, 15 April 2024 (UTC)

Adding exceptions to elective map

@Kwamikagami Can you add stripes to the map to the illegal states based on the exceptions? The map can be more informative if added. Similar to https://commons.wikimedia.org/wiki/File:Abortion_Laws-Irregular.svg. 207.96.32.81 (talk) 17:42, 29 April 2024 (UTC)

since all banning states have exceptions, i don't know what the point would be, and it would make the map more difficult to read. to be informative, it would need to have half a dozen or so different kinds of stripes - a dozen colors with half a dozen colors or shapes of stripes, how would you be able to tell which stripe was which?

we could add a pie chart to each state, with different sections for different exceptions, and different colors for each sector. but many states are too small for that, so they'd need to be off the coast with arrows pointing to the state. I think that would have to be a new map. — kwami (talk) 19:18, 29 April 2024 (UTC)

Ohio and "how law works"

Rather than continuing to do a slow-mo edit war with @JesusIsLord444, I thought I would open this up to discussion here and others can chime in on whether one or both of us is wrong.

My understanding has always been that the way constitutional provisions (and court interpretations of those provisions) and statute law in the U.S. interact is that the constitutional provisions are generally held to be supreme. Laws that violate those constitutional provisions may remain on the books, but that doesn't mean that they are active or binding. The classic example is, of course, abortion law in the wake of Roe: in many states, even though there were abortion restrictions in the law code, those laws were overridden by the Supreme Court's interpretation of the U.S. constitution. It was not necessary to challenge every single one of those laws in court in order for them to be considered repealed: prosecutors stopped attempting to enforce them once the ruling came down. Arizona, for instance, still had that 1864 law banning almost all abortions on its books, but nobody pre-Dobbs would've said "Oh, actually, abortion is illegal in Arizona because this specific law hasn't had a legal challenge against it sustained yet."

In Ohio's case, I'm not sure what it would even mean for the 22-week limit to still be in effect until it's challenged. Are there prosecutors at the state or local level who have stated their intention to file charges against doctors or patients who have or perform abortions at 23 or 24 weeks? If so, that should be spelled out and clarified in the article, along with their reasoning for why they think those charges are likely to succeed. If not, than we have a very typical case of a statute law overridden by a constitutional provision, and prosecutors understanding that and therefore not filing charges because they know those charges would be thrown out on constitutional grounds, and it makes no sense to say the 22-week ban is still in effect.

If what you're saying is that Ohio law and precedent considers 22 weeks to be the same thing as viability, and therefore the amendment as passed does not overturn a 22-week ban, that's an entirely different thing. That would also require some citations.

Anyone else is welcome to chime in if I'm misunderstanding the issue here. --Jfruh (talk) 20:43, 15 June 2024 (UTC)

What I am talking about is this opinion the Ohio Supreme Court released (viewable on this page: https://www.cincinnati.com/story/news/politics/2023/08/11/ohio-supreme-court-rejects-legal-challenge-to-abortion-rights-issue/70567955007/ )when challengers tried to keep the amendment off the ballot because the amendment didn’t specify what laws it would repeal. The court essentially said that this argument was faulty because amendments by themselves don’t repeal laws. In the case of the dormant pre-Roe laws, there were many that were struck down directly by courts after Roe, and many other states avoided direct court challenges by making new legislation to override the pre-Roe laws (and not enforce the old laws unless Roe was overturned). However, should the state have tried to enforce the laws, the courts would have stepped in and blocked them.

In the case of Ohio, the state is still actively enforcing the 22 week law, just like it is currently enforcing some of the other laws being challenged (such as the waiting period laws). Until those laws are struck down, they are presumed to be in place. The other thing about the 22 week law is that those types of laws were actually in place in a few states over the last 10 years before Roe was overturned, starting with Nebraska in 2010. These laws were enforced in many red states after that due to the fact that some fetuses are viable at 22 weeks, which means whether or not the law would be blocked is not a straightforward answer. If those laws could be in force before Roe was overturned, it makes sense that it could still be enforced in Ohio after their amendment, which has similar provisions to Roe and Casey.

Ultimately, because this law is in a grey area and because the state is still trying to enforce the 22 week law, the law is still presumed to be in effect unless a court strikes it down. JesusIsLord444 (talk) 00:45, 16 June 2024 (UTC)

I think you are to a certain extent misinterpreting the judge's comment here. He's saying that a constitutional amendment does not need to spell out what laws it's repealing, and that statute laws need to conform to the constitution and any that do not can be challenged in court. This is not the same thing as saying that all laws that potentially conflict with a new constitutional amendment remain in place and must be overturned in court one by one in order to be considered repealed. Prosecutors, as a rule, are not in the business of bringing cases that they know they cannot win; if the Ohio 6-week ban were still in place when the amendment was approved, for instance, I think we can all agree that prosecutors would've stopped bringing cases on the basis of that law immediately, and nobody here would be claiming that it was "still in place" even if it was technically on the books.

If Ohio prosecutors are claiming that the current 22-week law does not violate the amendment and this dispute is making its way through the state courts, that's a very different question. I apologize if I've been grumpy about this but in all our reverts you were giving the impression that you thought the whole amendment somehow "didn't count" until it was confirmed by a court ruling. At any rate, please supply some citations on this, because it would be an important addition to the section of the article, and I think we should spell out the contours of the dispute. If nothing else, I do think we should say "viability" in the lead of the section because that's what the constitutional law says. If I'm understanding you correctly, the dispute is not 22 weeks vs. viability, but rather whether viability means 22 or 24 weeks (or some other time period).

In general, I do think we should be clearer about legal language throughout this article. There are some states that have laws based on time since last menstrual period, and others that use terms like "viability" that could be unclear, and we should spell out which states have which and what disputes might arise from any ambiguity. We also sometimes use "6 weeks" as a shorthand for states with so-called "heartbeat laws", but that's not strictly correct -- those laws are specifically about the ability to detect cardiac cell activity, which usually happens around 6 weeks from LMP but not always. Jfruh (talk) 19:49, 16 June 2024 (UTC)

https://www.kff.org/policy-watch/10-things-to-know-about-abortion-access-since-the-dobbs-decision/#:~:text=While%20all%2020%20states%20with,no%20fatal%20fetal%20anomaly%20exceptions.

This is one link that shows the state abortion laws, and it still shows Ohio’s 22 week law as in effect. I agree the amendment is in effect, but what I was saying is that technically a law has to be blocked by the court before the law itself is invalid. The 22 week law hasn’t been challenged, but I would imagine the state would make the case that the 22 week law is constitutional because fetuses can be viable at that stage. It’s one of those edge cases that could go either way. Again, though, until a court blocks it, it’s still technically law.

https://www.usatoday.com/story/news/politics/elections/2024/03/18/ohio-voters-abortion-2024/73015168007/

Here’s another source that talks about how doctors are still following the 22 week law. JesusIsLord444 (talk) 14:06, 28 June 2024 (UTC)

I've edited the Ohio section to reflect this discussion. --Jfruh (talk) 20:22, 28 July 2024 (UTC)

Change State colors to indicate laws to project neutrality on the subject

Generally speaking using the colors Red and Green imply one is worse and one is better, when its better to be Neutral on this issue. Perhaps it should be changed to Blue and Yellow or other colors. Dogevb (talk) 04:08, 28 July 2024 (UTC)

Proposed new maps

I am thinking that the map situation on this page should be revamped to reflect the post-Dobbs state-by-state situation. Some (like the trigger law map) are largely irrelevant at this point, while some new ones could be more helpful. A couple maps that I think would be particularly useful are:

• What states have had referenda on abortion law post-Dobbs, and what have the results been? To keep things relatively simple, we could confine the categories as "Referendum would restrict abortion access passed/failed" and "Referendum would widen abortion access passed/failed".

• In what states are abortion rights or restrictions explicitly laid out in the constitution, in what states are they considered part of constitutional law a result of court rulings, and in what states is the legal status of abortion solely determined by statute law (or lack thereof)?

Finally, a suggestion on our main map. While I do think it's useful to have a map this detailed in the article, I also think it's a lot of information to encounter on first glance. I'm wondering if perhaps that detailed map should be moved down to the top of the state-by-state section and a simpler map put at the beginning of the article. I would suggest that the simple map just divide jurisdictions into three categories: States that have totally banned elective abortions, states that are essentially in the same situation they were pre-Dobbs, with restrictions at or after fetal viability, and a middle category of states that that allow some elective abortions but have restrictions that would not have been allowed under Roe. This map would be a snapshot of current law and wouldn't have info about pending court rulings and such. Here's my first pass at such a map -- open to suggestions on colors, I just used our existing map as a baseline.

Simplified map showing the status of abortion law in the US by state and territory

--Jfruh (talk) 19:53, 28 July 2024 (UTC)

What is "Freedom Act" in the table of protections by state?

The table of protections by state with three columns (state name, "Freedom Act", and protection or prohibition in state constitution) does not define "freedom act", none of the states have a footnote on that column (whereas several have explanatory notes on the constitutional protection or prohibition column), and I don't think "freedom act" is defined anywhere else in this article. It's possibly defined in the cited source, but it should be defined here, or possibly given a more clear name. The phrase appears only once, and capitalized as if it is a specific act or law, perhaps model legislature adopted in whole or in part by multiple states. This seems unlikely. I suspect it is many unrelated laws. They may have different provisions, or they may meet a set of criteria set by the cited source. This column probably just needs a more clear name, possibly emphasizing that this column covers legislative protection, and the other column covers constitutional protection. Fluoborate (talk) 12:38, 14 August 2024 (UTC)

I agree strongly with this. I think this could be combined with one of the maps I propose in the previous section. --Jfruh (talk) 14:42, 23 August 2024 (UTC)

North Dakota

A ND Judge has struck down the state’s ban and abortion is now legal there until viability

https://reproductiverights.org/north-dakota-court-rules-state-abortion-ban-unconstitutional/ Dancingtudorqueen (talk) 18:25, 12 September 2024 (UTC)

Exceptions and Penalties

There should be columns in the table for exceptions and penalties. Also maybe a summary somewhere. Philosopher Spock (talk) 21:54, 20 September 2024 (UTC)

Most of this information is in the text of the entries for individual states and territories. I agree that it should be consolidated and summarized in a more succinct form, possibly replacing some of the current tables, which are a bit confusing in my opinion. --Jfruh (talk) 16:24, 21 September 2024 (UTC)