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Author: Joan Mahoney, Lecturer in Law, University of Southampton
Original article: https://theconversation.com/what-a-second-trump-presidency-means-for-abortion-laws-across-the-us-243437
Before the 2024 presidential election, it was expected that one of the big issues that would get the female vote out for Kamala Harris would be women’s reproductive rights. This followed the 2022 “Dobbs decision” of the US Supreme Court which had effectively struck down 50 years of protection for a woman’s right to an abortion under the 1973 decision Roe v Wade.
Many people thought the presidential election would be a referendum on this issue. Donald Trump was viewed by many, particularly among Democratic voters, as the architect of the Dobbs decision as it was his administration that had stacked the Supreme Court with the conservative justices who wrote the judgment.
Instead of women being protected by a federal right to choose, the decision was returned by Dobbs to the individual states to make their own laws. Kamala Harris pledged that, if elected, she would pass a national law protecting women’s reproductive rights. But she lost the election. So where do the various states stand on the issue?
Sixteen states, including Hawaii, Illinois, Nevada, and Maine, have passed legislation to protect access to abortion before and in response to Dobbs. Meanwhile, laws banning abortion which were “triggered” by the decision to overturn Roe v Wade came into effect in 13 states during the two months following the Dobbs decision. By August 31 2022, 18 states had banned nearly all abortions with some limited exceptions for rape, incest, or life endangerment. These bans include both abortion bans that were enacted prior to Roe v Wade and were reactivated by the Supreme Court’s decision and laws that came into effect after the Dobbs ruling.
Polls have shown that a majority of Americans support the framework of Roe ( Gallup reported that 69% of Americans supported abortion during the first three months of pregnancy). California, Michigan and Vermont passed state constitutional amendments in November 2222, protecting the right to abortion, while Kentucky and Kansas rejected constitutional amendments that would have held there was no right to abortion. Ohio first rejected a measure that would have made it harder to pass an amendment protecting abortion, and then in November 2023 adopted an amendment to the state constitution protecting abortion to the point of viability.
On election day, ten states had constitutional amendments on the ballot dealing with reproductive rights. Most were specifically concerned with abortion, while the one in New York was more broad, covering discrimination as well as reproductive rights.
Seven states voted in favour of abortion rights, including Maryland, Missouri, Arizona, Colorado, Montana, New York, and Nevada. Interestingly, four of those – Missouri, Montana, Arizona, and Nevada – voted for Trump in the presidential election.
Missouri voters amended the state constitution to guarantee the right to abortion until foetal viability, with exceptions after that if the pregnant person’s life or physical or mental health is at risk. The Arizona, Montana and Nevada proposals were similar to the one in Missouri – abortion will be legal until viability and after that based on the health or life of the mother. Colorado and Maryland both added protection for reproductive rights to their constitutions, although abortion is legal in both states.
Three states voted either to restrict abortion or rejected a constitutional amendment protecting reproductive rights. Amendment 4 in Florida, which would have prevented any laws restricting a woman’s right to an abortion pre-viabilty was supported by 57% of the voters, but required 60% to pass.
In Nebraska, the “right to life” amendment passed with 55% of the vote. This has introduced a constitutional ban for abortions after the first trimester. It includes exceptions for rape, incest and medical emergency, but allows the legislature to enact restrictions within the first trimester, such as the current 12-week ban.
South Dakota voters rejected a constitutional amendment that would have, in effect, enshrined the ruling from Roe into state law.
State of the nation: abortion law
KFF
As the map indicates, access to reproductive rights is a patchwork in the US. Women who can afford it can travel from one state to another to obtain an abortion. But for many people living in those states, large swaths of the country are, in effect, abortion deserts, requiring significant expense and travel costs to reach a state where the procedure is legal. As a rule, abortion is largely prohibited in the south and permitted in the northeast and on the west coast, along with some of the mountain states.
The majority of early abortions are now carried out with medication, rather than surgery. This makes the abortion process more private and allows access even where abortion clinics are unavailable. Some states where abortion is protected – Massachusetts, Washington, Colorado, Vermont, New York and California – have laws that enable doctors there to provide medication abortion to women in states where the procedure is banned. There are moves to introduce laws in many states that already ban abortion which would bar the mailing of abortion pills and require an in-person visit to the doctor to obtain them.
Being able to travel or use imported medication can assist women with elective abortions. But the strict prohibitions have affected the health of women who have non-viable pregnancies or miscarriages. In October 2024, Neveah Crain died in Texas after doctors failed to treat a miscarriage. A group of women sued the state of Texas, unsuccessfully, arguing that the law was being interpreted in ways that denied them proper care. Additionally in Texas, the state is currently taking a legal case to overturn medical privacy, so it could access women’s medical records enabling them to access information about whether a woman has gone out of state for an abortion.
The final question after the US election is where abortion rights go from here. Republicans will control both houses of Congress and there has been some interest among Republicans in a national abortion ban, which could be adopted if they had sufficient votes. A less extreme alternative – and one which is popular among many anti-abortion Repubicans – would be a ban on medication abortion drug Mifepristone. A ban on medication abortions would have an impact on the availability of abortions because of the cost, but would still allow surgical abortions in those states that currently allow them.
So while there were gains for women’s reproductive choice in some parts of the US, these could be easily wiped out if the federal government so chooses.