Third Trimester Abortions and the Law

First, I recommend that you bookmark the Abortion Law Homepage for future reference.

In a nutshell:

1. Roe vs. Wade, the most famous abortion case, allowed no "restrictions" on abortion in the first two trimesters. For the third trimester, the states were allowed to make some restrictions -- as long as they allowed abortions for "health" reasons. The companion decision, Doe vs. Bolton, then defined health so broadly that really, anything could suffice:

[M]edical judgment may be exercised in the light of all factors - physical, emotional, psychological, familial, and the woman's age - relevant to the wellbeing of the patient. All these factors may relate to health.

I must point out at this point that prior to Roe and Doe, there was no such thing as a third trimester abortion. Abortion was, by definition, killing the fetus prior to viability. So post-viability abortions were not only invented but enshrined as a supposed Constitutional right.

And unless you define "health" so broadly as to include family concerns (which no doubt would include financial considerations), the whole idea of a post-viability "health" abortion is nonsensical on its face. If a pregnancy is endangering the mother's life or health, the standard of care has been to induce labor or perform a c-section, based on the woman's particular needs. With a c-section, the baby can be out of the womb and in the NICU within the hour, the pregnancy is over, and the mother can be cared for by medical professionals. It's nonsensical to say that it would preserve her "health" or her life to take additional steps to ensure that the fetus emerges dead.

The only logical reason to perform a post-viability abortion -- to stop during delivery to kill the baby -- is to achieve the death of the fetus, either for social reasons or because the baby has a disability of some sort.

Again, a "health" justification for a post-viability abortion is nonsensical, but because of Roe and Doe, the states must include them in order to pass Constitutional muster. Occasionally you'll see an old pre-Roe law still on the books that 's not enjoined, either because there are no abortionists in that state who want to perform late abortions, or because the law isn't being enforced so there's no point in going to court over it.

2. As the Abortion Law Homepage notes, after the Webster decidion in 1989 and the Planned Parenthood vs. Casey decision in 1992, the Supreme Court allowed states to put some regulations (such as waiting periods or informed consent) into place, and allowed the states to be a bit firmer about exactly what constituted "health". Still, no state can actually ban third trimester abortions, because if this "health" requirement in Doe.

3. So now we have a hodge-podge. Public Agenda shows a map based on information from the Alan Guttmacher Institute, an abortion-advocacy organization.

For specifics, I'll turn to NARAL Pro-Choice America, an abortion-advocacy organization co-founded by Bernard Nathanson (who later repented) and Larry Lader (who remained proud of his abortion activities up to his death). I heartily recommend browsing these pages and comparing the laws as written with abortion as practiced in those states. You'll find that the laws are routinely broken in many states. In New York, for example, a second physician is supposed to be present when abortions are done past 20 weeks. The only real effect of these laws is to make it very difficult for women injured in abortions past 20 weeks to sue, because the lack of the second physician makes the abortion illegal, and the woman therefore can't sue for damages she incurred while she was doing something illegal -- even though the woman would not know that the abortion was technically illegal. One abortionist got out of having to settle with the family of a 12-year-old girl who was left blind and sterile after her abortion because of this manipulation of the law.

Sample post-viability abortion restrictions as of this writing are as follows (verbatim from NARAL). Notice that if the state just has a "health" exception to their "restriction", then it is the Doe definition of health, which could be anything the woman wants it to be. It's only when the legislatures start to be specific that NARAL starts to object that the "restriction" is objectionable. I clicked on every 10th state, plus Utah (because I know that their post-viability restriction is enjoined by the courts and thus can't be enforced) and Kansas (where George Tiller does abortions on all comers, regardless of gestational age, all justified on "health" considerations -- thus Kansas has in effect no post-viability restriction; it's all in how the states choose to enforce the laws).

Florida: Florida's post-viability restriction provides that no abortion may be performed in the third trimester of pregnancy unless two physicians certify in writing that the abortion is necessary to preserve the woman's life or health. If an abortion is performed during viability, the physician must "use that degree of professional skill, care, and diligence" most likely to preserve the life and health of the fetus except that "the woman's life and health shall constitute an overriding and superior consideration to the concern for the life and health of a fetus when such concerns are in conflict." Fla. Stat. Ann. § 390.0111(1), (4) (Enacted 1978; Last Amended 1998; Last Renumbered 1998).

NARAL Pro-Choice America supports the legal framework established in Roe v. Wade and does not oppose restrictions on post-viability abortions, such as Florida's, that contain adequate exceptions to protect the life and health of the woman. NARAL Pro-Choice America opposes Florida's law because it is unconstitutional to the extent that it prohibits pre-viability abortions by defining viability at the third trimester of pregnancy. A state may not prohibit abortion prior to viability, which is that point at which a fetus is capable of "meaningful life" outside of a woman's body. Roe v. Wade, 410 U.S. 113, 163 (1973). Because viability is a point that varies with each pregnancy, states may not declare that it occurs at a particular gestational age. Colautti v. Franklin, 439 U.S. 379, 388-89 (1979).

Kansas: Kansas' post-viability abortion restriction provides that no abortion may be performed after viability unless the attending physician and another financially and legally independent physician determine that an abortion is necessary to preserve the woman's life or continuation of the pregnancy would cause a "substantial and irreversible impairment of a major bodily function" of the woman. Kan. Stat. Ann. § 65-6703(a) (Enacted 1992; Last Amended 1998). The Kansas Attorney General has interpreted this exception to include mental health. Op. Kan. Att'y. Gen. 2000-020.

Holding that no case or controversy existed because no one had been prosecuted under the post-viability ban, a state court dismissed a lawsuit brought by Dr. George Tiller, an abortion provider, challenging its constitutionality. Tiller v. Mitchell, No. 81,285 (Kan. Sept. 30, 1998). However, the state later charged Dr. Tiller with violating the ban, and Dr. Tiller is currently challenging the ban's constitutionality in a motion to dismiss these charges. Complaint, State v. Tiller, No.07CR2112 (18th D. June 28, 2007); Motion to Dismiss, State v. Tiller, No. 07CR2112 (18th D. Jul. 2, 2007).

In addition, Kansas bans the performance of certain post-viability abortion procedures (not including the suction curettage procedure, suction aspiration procedure, and certain dilation and evacuation procedures). Kan. Stat. Ann. § 65-6721 (Enacted 1998). This ban provides that performance of certain post-viability abortion procedures is a felony, unless the physician and another legally and financially independent physician determine that the abortion is necessary to preserve the woman's life or that continuation of the pregnancy would cause a "substantial and irreversible impairment of a major physical or mental function" of the woman.

NARAL Pro-Choice America supports the legal framework established in Roe v. Wade and does not oppose restrictions on post-viability abortions so long as they contain adequate exceptions to protect the life and health of the woman. NARAL Pro-Choice America opposes Kansas' post-viability restrictions because the health exceptions are dangerously narrow.

Maine: may be performed after viability unless necessary to preserve the woman's life or health. Me. Rev. Stat. Ann. tit. 22, § 1598 (Enacted 1979; Last Amended 1993).

NARAL Pro-Choice America supports the legal framework established in Roe v. Wade and does not oppose restrictions on post-viability abortions, such as Maine's, that contain adequate exceptions to protect the life and health of the woman.

New Hampshire: No restrictions on post-viability abortion.

Rhode Island: Rhode Island's post-viability abortion restriction provides that no abortion may be performed on a "quick child," defined as "an unborn child whose heart is beating, who is experiencing electronically-measurable brainwaves, who is discernibly moving, and who is so far developed and matured as to be capable of surviving the trauma of birth with the aid of usual medical care and facilities," unless necessary to preserve the woman's life. R.I. Gen. Laws Ann. § 11-23-5 (Enacted 1975).

NARAL Pro-Choice America supports the legal framework established in Roe v. Wade and does not oppose restrictions on post-viability abortions so long as they contain adequate exceptions to protect the life and health of the woman. NARAL Pro-Choice America opposes Rhode Island's post-viability abortion restriction because it does not contain an exception to protect the health of the woman.

Utah: Utah has an unconstitutional and unenforceable law that provides that no abortion may be performed after 20 weeks gestational age, measured from the date of conception, unless necessary to preserve the woman's life, to prevent "grave damage" to the woman's "medical health," or to prevent the birth of a child with grave defects. Utah Code Ann. § 76-7-302(3) (Original Statute Enacted 1973; Repealed and Reenacted 1974; Last Amended 2004).

A court held that the provision regulating abortions after 20 weeks gestational age is unconstitutional because the provision effectively defines viability at 20 weeks gestational age and ignores Supreme Court precedent that viability is a matter to be determined by an attending physician. Jane L. v. Bangerter, 102 F.3d 1112 (10th Cir. 1996), cert. denied, 520 U.S. 1274 (1997).

Utah has an additional unconstitutional and unenforceable law that provides that if the fetus is sufficiently developed to have any reasonable possibility for survival, the physician must attempt to promote, preserve, and maintain the life of the fetus, consistent with preserving the life of the woman or preventing grave damage to her medical health, and must use the medical procedure most likely to result in fetal survival in the best medical judgment of the physician. The physician may not use a medical procedure designed to kill or injure the fetus unless necessary to prevent grave damage to the woman's medical health. Utah Code Ann. §§ 76-7-307 (Original Statute Enacted 1973; Repealed and Reenacted 1974; Last Amended 1991), 76-7-308 (Original Statute Enacted 1973; Repealed and Reenacted 1974; Last Amended 1991).

A court held that these provisions are unconstitutional because they do not adequately protect the health of the woman. Jane L. v. Bangerter, 61 F.3d 1493 (10th Cir. 1995).
NARAL Pro-Choice America supports the legal framework established in Roe v. Wade and does not oppose restrictions on post-viability abortions so long as they contain adequate exceptions to protect the life and health of the woman. NARAL Pro-Choice America opposes Utah's post-viability restriction because the health exception is dangerously narrow. NARAL Pro-Choice America also opposes this law to the extent that it prohibits pre-viability abortions by defining viability at 20 weeks. A state may not prohibit abortion prior to viability, which is that point at which a fetus is capable of "meaningful life" outside of a woman's body. Roe v. Wade, 410 U.S. 113, 163 (1973). Because viability is a point that varies with each pregnancy, states may not declare that it occurs at a particular gestational age. Colautti v. Franklin, 439 U.S. 379, 388-89 (1979).

Wisconsin: No abortion may be performed after viability unless necessary to preserve the woman's life or health. The physician must use the available abortion method most likely to preserve the life and health of the fetus unless that method would increase the risk to the woman. Wis. Stat. Ann. § 940.15 (Enacted 1985; Last Amended 2001).

NARAL Pro-Choice America supports the legal framework established in Roe v. Wade and does not oppose restrictions on post-viability abortions, such as Wisconsin's, that contain adequate exceptions to protect the life and health of the woman.

In closing, the following states have no post-viability restrictions whatsoever:

1. Alaska
   
2. Colorado
   
3. Hawaii
   
4. Mississippi
   
5. New Hampshire
   
6. New Jersey
   
7. New Mexico
   
8. Oregon
   
9. Vermont
   
10. West Virginia

The following states allow for "physical or mental health" exceptions:

1. Arizona
   
2. Arkansas
   
3. California
   
4. Connecticut
   
5. Delaware
   
6. Florida
   
7. Georgia
   
8. Illinois
   
9. Iowa
   
10. Kansas
    
11. Kentucky
    
12. Louisiana
    
13. Maine
    
14. Maryland
    
15. Massachusetts
    
16. Minnesota
    
17. Missouri
    
18. Nebraska
    
19. Nevada
    
20. North Carolina
    
21. North Dakota
    
22. Oklahoma
    
23. Rhode Island
    
24. South Carolina
    
25. South Dakota
    
26. Tennessee
    
27. Texas
    
28. Virginia
    
29. Washington
    
30. Wisconsin
    
31. Wyoming

The following states allow post-viability abortions only for physical health exceptions:

1. Alabama
   
2. Indiana
   
3. Ohio
   
4. Montana
   
5. Pennsylvania
   
6. Utah (enjoined and unenforceable)

The following states allow post-viability abortions only if the mother's life is in danger:

1. Idaho (enjoined and unenforceable)
   
2. Michigan
   
3. New York

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