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03.05.09 - In Roe v. Wade, the Supreme Court held that bans on abortion are unconstitutional. Anti-choice activists nonetheless continue to push abortion bans at the state and federal level in hopes that the Supreme Court will overturn the Roe decision. The bans undermine women's rights by seeking to extend equal or greater rights to the fetus. In recent years, the anti-choice movement has also tried to justify the enactment of these laws by claiming that abortion causes psychological harm to women. Those claims were firmly debunked by a 2008 report of the American Psychological Association, which found no credible evidence that abortion causes mental health problems.
Abortion bans take three primary forms:
Outright bans on abortion are laws that make abortion a crime in all or nearly all circumstances. Such bans deny women the right to control their bodies and impede their ability to participate in society on equal terms with men. They also pose a significant threat to public health. History demonstrates that when access to legal abortion is not available, women still have abortions, but they turn to illegal, and unsafe, abortion methods. The nation's leading medical and public health associations—including the American Medical Association, the American College of Obstetricians and Gynecologists, the American Public Health Association, and the American Psychological Association—all oppose bans on abortion.
South Dakota has made several efforts to enact an outright ban on abortion in recent years. In 2006, the South Dakota legislature enacted a law that criminalized all abortions except those necessary to save a pregnant woman's life. Voters subsequently rejected the law in a referendum. (South Dakota is one of only 25 states with a referendum process that allows citizens to vote to accept or reject a law enacted by the legislature.) In 2008, a similar ban appeared on the South Dakota ballot, this time as a ballot initiative with exceptions for rape, incest, and substantial and irreversible impairment to a pregnant woman’s health. Voters again rejected the ban, by a resounding 10 point margin.
Bans-in-waiting are laws criminalizing abortion that do not take immediate effect. Instead, they become enforceable only if and when Roe v. Wade is overturned by the Supreme Court.
To date, Louisiana, Mississippi, North Dakota, and South Dakota have enacted bans-in-waiting.
An additional 14 states have abortion bans on their books that were enacted prior to Roe. Although courts have enjoined these pre-Roe bans in 10 states, some of these bans might be revived if Roe were overturned.
For more information about bans-in-waiting and the dangers they pose to reproductive choice, see the Center's Report, What If Roe Fell?
Method bans are laws that prohibit the use of certain methods or techniques of performing abortion.
The earliest method ban was enacted soon after Roe v. Wade by Missouri in 1974. The law prohibited the use of saline amniocentesis after the first-trimester. At the time, saline amniocentesis was the most common abortion method used after the first trimester, and it was safer than alternative methods of abortion as well as childbirth. The law was challenged, and the Supreme Court struck it down in Planned Parenthood v. Danforth on the grounds that it would inhibit almost all abortions after 12 weeks.
Since the mid-1990s, the anti-choice movement has waged a campaign to ban a procedure that it calls "partial birth abortion." Partial birth abortion is not a medical term; it was coined by the National Right to Life Committee (NRLC) in 1995. Although the primary target of partial birth abortion bans is purported to be the “intact” variant of the dilation and evacuation (D&E) method of abortion, most of these bans are written so broadly that they criminalize all D&E procedures, the safest and most common method of pregnancy termination after the first trimester.
In Stenberg v. Carhart ("Carhart I"), a case brought by the Center, the Supreme Court struck down a Nebraska statute banning so-called partial-birth abortion. The Supreme Court held that a method ban is unconstitutional (1) if it restricts use of the standard (non-intact) D&E method or (2) if it lacks a health exception. The Center successfully challenged bans on so-called partial-birth abortion in a total of 16 states.
Following the invalidation of many state bans on "partial-birth-abortion," the U.S. Congress passed its own federal ban on the so-called procedure. The federal ban was challenged in three separate cases, one brought by the Center. By the time these cases reached the Supreme Court, the composition of the Court had significantly changed since Carhart I, and this time the Court reached a different result, upholding the law. In Gonzales v. Carhart ("Carhart II"), the Supreme Court held that the federal ban was constitutional because it prohibited only abortions performed by the intact D&E method, and did not reach standard D&Es. The Court made that ruling despite the fact that the law does not contain an exception for situations when an intact D&E is necessary to prevent harm to a woman's health. The case marks the first time in 35 years that the Supreme Court has upheld an abortion restriction lacking a health exception.
In addition to the federal ban, method bans on so-called partial-birth abortion are currently in place in 14 states, but several of these laws, although unchallenged, are likely unenforceable because they are broader than the federal ban.