Three months after the court ruling, uncertainty remains about the legal status of abortion

In the wake of the US Supreme Court’s decision in June to end the constitutional right to abortion, many Americans are asking: Is abortion legal in my state?

In many parts of the country, the answer is often unclear. By overturning Roe v. Wade, a 1973 ruling establishing a constitutional right to abortion, the Supreme Court left it up to each of the 50 states to decide whether to allow the procedure.

The result has been an ever-changing patchwork of state laws and policies.

While Democratic-led states have been quick to improve protections for abortion access, many conservative-leaning states have moved in the opposite direction, seeking to ban or severely restrict the procedure.

With more states considering new bans even as abortion providers defy restrictions, the terrain for abortion access has become so muddled that even in places where the procedure is legal, many choose to seek out-of-state care.

“It has thrown our country into a state of uncertainty and chaos,” said Alaap Shah, a health care attorney at the Epstein Becker Green law firm. “We still have to see how things will really play out with respect to enforcement and how it will really affect the various states and the citizens of those states. It’s a work in progress.”

Activation Laws

Before the Supreme Court ruling known as Dobbs, 13 Republican-controlled states had enacted so-called trigger laws, abortion bans that would go into effect once the decision was announced.

Three months later, eight of the triggering laws are in place, while most of the rest face court challenges, according to Elizabeth Nash, senior policy associate at the Guttmacher Institute, a reproductive health research group.

“It wasn’t like a light switch was turned on or off,” Nash said. “It has been that some of them went into effect immediately, like in Missouri, for example. But others, like the trigger ban in Tennessee, Idaho, and Texas, went into effect at the end of August.”

In all, a dozen states, in the South and Midwest, have banned abortions, two other states have implemented six-week bans, while two other states, Florida and North Carolina, have 16- and 20-week bans. , respectively, according to the Guttmacher Institute.

With more states considering bans, “it looks like we’re going to be approaching half the country living under an abortion ban in the next few months,” Nash said.

The bans have had far-reaching effects, forcing pregnant women seeking abortions to travel to states where the procedure is legal or choose to carry unwanted pregnancies to term, advocates say.

“We’re looking at 17.2 million women of reproductive age now living in a state without access to abortion,” Nash said.

legal challenges

But abortion providers and rights advocates have been pushing for greater access, filing at least 15 major lawsuits to block bans, many in states with constitutional rights to privacy or equality, according to Nash.

State courts have responded in various ways. In about half of the cases, courts have blocked laws banning abortion, while in several others, judges have allowed the bans to remain in place while legal challenges continue. All of this has created a deeply fragmented abortion access landscape.

Shah said, “We have to look state by state to see: What does the law say? Is someone enforcing that law? Is that application being debated because there is another case challenging that application?”

Consider South Carolina. The Supreme Court ruling overturning Roe was issued on a Friday, and a 2021 state law banning abortions after about six weeks of pregnancy went into effect Monday.

The law, known as the Fetal Heartbeat and Abortion Protection Act, remained in effect for a full seven weeks before the state Supreme Court, in response to a lawsuit brought by abortion providers, issued an injunction against your application pending the outcome of the case.

As a result, a pre-existing law allowing abortion before the 20th week of pregnancy came back into force.

But that was not the end of the abortion debate in South Carolina. To further muddy the waters, Republican state lawmakers launched an attempt to enact an outright abortion ban. The effort failed after several Republican lawmakers refused to support the measure.

“I think it’s safe to say that the average South Carolinian is completely confused about what’s going on right now with abortion access in South Carolina,” said Ann Warner, executive director of the Women’s Rights and Empowerment Network.

But lingering uncertainty about the legality of abortion is likely prompting others to seek care out of state, Warner said.

That’s because they “don’t know or even care about the hostility toward getting the care they need here in South Carolina, given everything that’s going on,” Warner said.

law enforcement

It’s not just the ever-changing state laws that have added to the mass confusion about the legal status of abortion. Adding to the uncertainty, there are mixed signals coming from law enforcement authorities, according to Shah.

In Texas, local prosecutors have been divided on enforcement of the state’s new six-week ban. In Dallas County, the state’s second largest, the district attorney has vowed not to prosecute women seeking abortions. But in two neighboring counties, local prosecutors say they will treat a violation of the ban like any other felony.

In Wisconsin, a 19th-century abortion ban went into effect following the Supreme Court ruling. But the state’s Democratic Attorney General, Josh Kaul, says he won’t enforce the law while Democratic Governor Tony Evers pushes for it to be repealed.

However, all abortion clinics in the state have closed, forcing women to travel to neighboring Illinois to terminate a pregnancy.

“People avoid participating in those activities, even if there is no real risk of prosecution, and it is because people are not sure about the scope of these laws and how they will be enforced,” Shah said.

In both Wisconsin and Texas, new abortion bans face legal challenges.

‘stabilizing treatment’

Anti-abortion activists, who have long advocated for Roe’s repeal, see the legal challenges as a threat to their long-term goal of banning the procedure.

“These court cases are very serious,” said Eric Scheidler, executive director of the Pro-Life Action League. Court battles could drag on for years, potentially ending up before the Supreme Court.

A potential Supreme Court case could stem from a pair of lawsuits recently filed by the Justice Department challenging abortion bans in Idaho and Texas under a decades-old federal law known as the Emergency Treatment and Active Labor.

The law says that hospitals receiving federal funds must provide “necessary stabilizing treatment” to patients who arrive in an emergency condition. That means that if a doctor determines that “necessary stabilizing treatment” is an abortion, state law cannot prohibit it, according to the Justice Department.

Federal judges in the two states have issued split rulings in response. While a federal judge in Idaho issued an injunction against the state’s outright abortion ban when it conflicts with federal statute, in Texas a federal judge sided with the state.

If appellate courts issue similarly different rulings, the Supreme Court is likely to get involved, Scheidler said.

“I’m sure these battles will continue for years to come,” Scheidler said. “If, say, Planned Parenthood was able to sue a state and get the state Supreme Court to limit their law, they will try again in another state.”

Connect with the Voice of America! Subscribe to our channel Youtube and turn on notifications, or follow us on social media: Facebook, Twitter and Instagram