Abortion Justice, Now
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The tl;dr: Gestational and viability limits in federal abortion policy are harmful and unjust, not supported by medical science or public health, and are not politically strategic or aligned with public opinion. Now is the time for all efforts to protect abortion at the federal level to center those most impacted by abortion bans rather than cut them out. Now is the time for policies shaped by abortion seekers, abortion providers, and abortion funds, and aligned with the Reproductive Justice framework. Now is the time to commit to abortion justice.
Protecting Abortion at the Federal Level
“This is no time to engage in the luxury of cooling off or to take the tranquilizing drug of gradualism.” - Dr. Martin Luther King, Jr.
Executive Summary
An expansive, federal right to abortion must be secured in order to pave the way for all people, regardless of where they live, to be able to access abortion care when and how they need to.
Gestational and viability limits will disproportionately impact the most marginalized among us, either denying them critical care or pulling families toward financial instability. These limits will result in an inequitable ability to exercise rights, allow for criminalization in pregnancy, and ultimately reinforce the dangerous assertion that the government has any role in regulating a pregnant person’s body. As such,
We reject efforts to incorporate limits into abortion policymaking in the post-Dobbs era
We assert that those most impacted by limits and compromises as well as those working directly with those groups must lead the effort to rebuild the reproductive rights landscape
We call for movement-wide commitment to federal policies ensuring expansive rights and access to abortion care. Two such policies are the Abortion Justice Act and the EACH Act.
TABLE OF CONTENTS
Executive Summary
Overview
A. National Relief is Needed
B. A Limited Protection is Functionally a Limited Right
C. Roe Was Not Protective for Many
PART 2: COMPROMISE IS INJUSTICE
A. Abortion Limits Enable Pregnancy Criminalization
B. Individuals, Families and Communities Bear the Burden of Compromise
C. Reproductive Justice Must Be a Core Tenet in Policymaking
PART 3: MEDICINE AND PUBLIC HEALTH MUST NOT BE COMPROMISED
A. Viability is a Complex Medical Concept that is Inappropriately Misapplied in Law
B. Limits Threaten Patient Safety and Cause Harm
C. Bans and Limits are Opposed by Professional Medical Organizations
D. Limits are Untenable for Clinicians
PART 4: COMPROMISE AND LIMITS ARE NOT STRATEGIC
A. Expansive Federal Policy Supports Proactive Work in the States
B. Limits are Vulnerable to Exploitation by the Anti-Abortion Agenda
C. Pro-Abortion Voters Don’t Want Limits
APPENDIX A - ABORTION CARE LATER IN PREGNANCY
APPENDIX B - MAJOR EFFORTS TO ESTABLISH A FEDERAL RIGHT TO ABORTION
APPENDIX C - VARYING DEFINITIONS OF VIABILITY IN POLICY
APPENDIX D - STATE LAWS
Overview
This memo outlines a broad critique of gestational or viability limits in proactive federal abortion legislation. This analysis is a response to reproductive rights groups funded to lead federal policy work having historically embraced gestational or viability limits in proposed legislation.
The critiques in this memo draw from a range of areas of expertise including medical evidence, public health research, legal analysis, public opinion research, practical abortion support and funding organizations, and the perspectives of providers and patients impacted by these limits.
Critically, this analysis utilizes an anti-oppression framework to center the people for whom a proposed federal law with limits would manifest as a ban — those who are also the most economically, socially, and systemically marginalized among us.
When we ensure the most marginalized will receive the full benefits of a policy, we necessarily ensure that all people will receive full benefits. This method of policymaking and political action requires the leadership of those most at risk of being left out and those who work with them on the front lines.
PART 1: THE LANDSCAPE
A. National Relief is Needed
In the wake of Dobbs v. Jackson, states have been given permission to regulate or ban abortion at any point in pregnancy. This threatens the bodily autonomy of every pregnancy-capable person and ideals of equality and liberty that underpin our legal system. Individual liberties must be protected from government overreach, and important fundamental rights that are universal to all must be secured at the federal level — not left to the states. A national solution is needed to ensure that all people in the United States, no matter where they live, can make decisions about their bodies, their families, and lives without government interference or fear of punishment.
Amongst allies, abortion is recognized as critical health care and a fundamental individual right. Utilizing historical policy analysis as evidence, state-by-state abortion laws by their nature mean that if an individual does not live in a state in which abortion is legal or have the social and financial capital to travel, or is prohibited from leaving their state, abortion is illegal for that individual. Given this historical proof that many Americans have been and will continue to be denied critical health care and their fundamental right to abortion, national legislation is necessary to protect abortion access and provide relief to individuals living in states run by legislators that want to ban abortion.
B. A Limited Protection is Functionally a Limited Right
Abortion care later in pregnancy, including after potential fetal viability, is critically necessary for many people in the United States (Appendix A). Protecting most, but not all, abortion care from government overreach is insufficient. Not only does it fail to shield abortion seekers and providers from criminalization, but it effectively invites states to prohibit abortions that are not federally protected.
There is ample analysis on the impact of bans and limits as well as exceptions to those bans and limits. Not only are they unworkable and ineffective, but they reflect a personal value judgment in the law based on the timing and reasons for seeking abortion care. Exceptions suggest that some reasons are judged more valid than others, setting up a subjective permission framework, or a “hierarchy of deservedness” for abortion care that jeopardizes the health and safety of many and puts clinicians in the position of making those determinations rather than providing patient-centered care. Drawing a gestational limit line in federal policy has a normative function. It suggests that states should interfere and ban abortions later in pregnancy.
When a similar line was drawn by the Roe v. Wade decision, states were not required to ban abortion after viability. Rather, Roe’s viability framework was a limited federal protection that allowed states to ban abortion later in pregnancy. By the time the Dobbs decision overturned Roe, 43 states banned abortion after some point in pregnancy.
There is no reason to think enacting a statutory federal protection with similar Roe-era limits would function any differently post-Dobbs. There is also no historical or contemporary evidence to suggest that enacting limits in abortion policy can and will result in incremental expansion toward a policy without limits. As of the writing of this brief, no plan has been articulated to incrementally move beyond reinstated Roe-era policies to achieve truly equitable abortion access. This is further evidenced by the fact that most federal legislation intended to establish a national right to abortion has largely been limited to abortion care prior to potential fetal viability (Appendix B). Groups leading federal policy efforts on abortion have embraced viability limits in the past, endorsed candidates promising to “Restore Roe” and are funding efforts to enshrine these limits in state constitutions across the country.
C. Roe Was Not Protective for Many
Under Roe, tens of thousands of abortion seekers were denied care every year due to abortion bans based on gestational duration or viability. In fact, 1 in 10 abortion seekers were already traveling across state lines for care before Roe was overturned. The Dobbs decision, while catastrophic on many levels, is also an opportunity to escape Roe’s flawed framework that left so many people behind. We must enact stronger protections without arbitrary limits.
Roe failed abortion seekers in ways other than arbitrary gestational limits. It failed to ensure access and provided no relief for the 75% of abortion seekers who are low-income. The Hyde Amendment, numerous state restrictions on public funding, denial of care to young people without parental consent and other policies that fundamentally altered the abortion access landscape were permissible under Roe. While this brief is focused on gestational and viability limits in federal proactive policies, it is critical that any federal policy address both public funding and abortion access for young people.
PART 2: COMPROMISE IS INJUSTICE
A. Abortion Limits Enable Pregnancy Criminalization
Gestational and viability limits provide a legal basis for the government to police pregnancy outcomes — beyond abortion. Courts and lawmakers have interpreted the viability line in Roe to be relevant to questions about when a fetus becomes more worthy of the state’s protection than the pregnant person. A viability or gestational limit on legal access to abortion underpins legal theories that recognize a viable or sufficiently developed fetus as a separate person under the law (Appendix C).
The organization Pregnancy Justice has documented an accelerating trend of pregnancy criminalization in the United States, connected most directly to the expanding ideology of fetal personhood. Of the 1400 cases of pregnancy criminalization they documented between 2004 and 2022, four in five occurred in a handful of southern states.
Almost half of the cases took place in Alabama, where activist judges have granted personhood to zygotes, embryos, and fetuses. In doing so, they have allowed a host of criminal penalties to be applied to pregnant people who use substances during their pregnancies. These arrests and prosecutions are the result of a series of court decisions stretching back decades, and rest on a legal theory of establishing fetal personhood at potential viability (Appendix C).
Enshrining a viability standard in law is not, and has never been, harmless. It is not an incremental step toward expansive rights or harm reduction. Instead, it is an incremental step toward fetal personhood.
Furthermore, states looking to deploy the law to protect potentially viable fetuses can and do use state violence. State violence comes in the form of policing and surveillance, criminalization, family separation, and incarceration. In addition to civil or criminal penalties, there are also coercive denials of critical medical, social or other services as a result of these efforts. This state violence is often racialized and gendered, and falls mainly on marginalized groups and those without the financial resources or social capital to combat it. There is no acceptable amount of pregnancy criminalization. Protecting pregnancy from paths to criminalization will aid in protecting pregnant individuals from some forms of state violence.
B. Individuals, Families and Communities Bear the Burden of Compromise
Policies have tangible impacts on the people affected by them. A compromise on abortion protections at the federal level will result in many states banning or burdening essential health care, just as they have under Roe. Specifically this affects people seeking abortions later in pregnancy—after a potential gestational or viability ban applies.
When an individual needs abortion care that is prohibited in their state, they must either continue their pregnancy, try to access abortion care out of state or self manage their abortion when they would not have chosen to. Each of these options represents a level of abandonment by the federal government.
Being forced to continue a pregnancy and submit to childbirth by the state is unacceptable. Any federal policy that fails to challenge compelled pregnancy and childbirth falls short.
While self-managed abortion care is overwhelmingly medically safe, there are many circumstances in which an abortion seeker may either prefer to obtain care in a medical setting, or where it may be safer for them to do so. Additionally, self managed abortion, in many states, carries the risk of criminalization - this would not improve and potentially worsen without explicit protection in federal policy. Federal abortion policy should prioritize both patient preference and safety. Any federal policy that fails to ensure patients who want to access care in a clinical setting can do so falls short.
For decades, thousands of abortion seekers who could not access abortion care in their state have traveled long distances to reach a clinic. This was commonplace under Roe, with 1 in 10 abortion seekers traveling across state lines in 2020 due to abortion restrictions allowed under that framework. Given the characteristics of abortion seekers, travel may be an incredible burden. About 4 in 10 abortion seekers live below the poverty line, and another 3 in 10 are low-income. More than half of abortion seekers are already parenting. Traveling long distances to obtain abortion care requires overcoming these logistical barriers. Many are ultimately unable to navigate the many obstacles in their way and unable to obtain abortion care altogether.
Before the overturn of Roe abortion funds and practical support organizations (PSO’s) helped people obtain care. Since the Dobbs decision, the number of abortions has actually increased and the number of those traveling to obtain abortion care has doubled to 1 in 5. This is a testament to an incredible effort by abortion funds and PSO’s. However, the donations behind these efforts are drying up, and in all likelihood this is unsustainable long-term. Any federal policy that presumes those who are denied care can just easily travel across state lines is gravely insufficient.
There are many people who cannot travel for abortion care—either because they cannot overcome the logistical burdens, because of their immigration status, because they are young and lack support from their guardians, because their health or disability status does not enable them to, or because they are not legally allowed due to probation, incarceration, or detention. And this list is not exhaustive.
The harms of abortion bans extend beyond the initial denial of essential health care. Advancing New Standards in Reproductive Health’s (ANSIRH) Turnaway Study compared abortion seekers on either side of a gestational cutoff, documenting differences between those who were able to get an abortion with those who were denied care. The ten year longitudinal study identified the long-term negative consequences of bans and limits. The Society of Family Planning (SFP) summarized these consequences: “Being denied a wanted abortion is associated with an increase in household poverty, worse physical health, lower ability to care for existing children, and being less likely to set aspirational plans.”
Any federal policy that abandons abortion seekers — including those later in pregnancy — who are denied care by state laws is classist, discriminatory, and unjust.
C. Reproductive Justice Must Be a Core Tenet in Policymaking
Any proactive abortion policy must be rooted in the Reproductive Justice framework. Sistersong defines Reproductive Justice as “the human right to maintain personal bodily autonomy, have children, not have children, and parent the children we have in safe and sustainable communities.”
United States laws, policies, and institutions historically and currently shape the systemic oppression of racialized and marginalized people. This is starkly demonstrated with reproductive health and rights. Black, Indigenous, Latine, Japanese people along with Disabled, Incarcerated, and Immigrant people have been reproductively exploited and coerced throughout US history, as a matter of policy. Enslavement, nonconsensual surgical experimentation, forced sterilization, and coercive participation in medication trials are but a few of the examples of systematized exploitation and control of the reproductive lives of people of color and other marginalized groups in the United States. The legacy of these policies is evident in the disproportionately high maternal mortality rate of Black and Indigenous women, the disproportionate impact of abortion bans on families of color, and the ongoing reproductive discrimination and coercion of all people of color.
Reproductive Justice is a human rights framework articulated by 12 Black women, in part, as a response to the white-female-centric reproductive rights movement. Historically, mainstream political and cultural efforts to secure abortion rights not only centered white women’s experiences but ignored the economic, environmental, familial, class, and racial factors that were critical to liberation for Black, Indigenous and other people of color.
When it comes to abortion care, there has always been a prioritization of civil and political rights over economic, social, and cultural rights. Florence Butegwa notes the difference: “Civil and political rights are characterized as negative and cost-free rights in that governments are only required to abstain from activities which would violate them. This is contrasted with economic, social and cultural rights which require governments to do something, thereby committing considerable resources, to ensure individuals the enjoyment of those rights.”
Federal legislation like the EACH Act and HEAL Act begin to address some of the many economic, social, logistical, and cultural barriers to accessing abortion care. But if there are limits in a federal policy enshrining a fundamental civil right to abortion, then those limits are functionally extended to federal policies aimed at improving access to abortion. Alternatively the Abortion Justice Act addresses a number of barriers to abortion care while also establishing a fundamental right without limits, ensuring that all abortion seekers can benefit from it.
The current political and cultural push to “restore abortion rights” post-Dobbs is proving to be history repeating itself. Instead of heeding the Reproductive Justice demand to center those who are most marginalized, many of those with financial, political, and positional power are urging compromise and limits in order to secure a narrow “win”, again. Specifically, we are referring to ballot amendments in states that include limited protections as well as proposed federal legislation that includes gestational or viability limits. These familiar compromises are once again leaving out the same marginalized groups.
PART 3: MEDICINE AND PUBLIC HEALTH MUST NOT BE COMPROMISED
A. Viability is a Complex Medical Concept that is Inappropriately Misapplied in Law
Clinically, viability is generally understood to refer to some point in pregnancy when a specific fetus has a high likelihood of survival independently outside the uterus. But according to the American College of Obstetricians and Gynecologists (ACOG), “There is no definite diagnosis of viability and no test that can definitively determine whether a fetus could survive outside of the uterus.”
Laws that delineate abortion rights based on potential fetal viability misapply a very complex medical concept to regulate abortion. There is no single formally recognized clinical definition of fetal viability because of the complexity of the medical concept. Fetal viability, as a diagnosis, is multifactorial, dynamic, and varies in each individual pregnancy. State laws and proposed federal laws use varying non-clinical definitions of viability that lead to immense confusion in application (Appendix C).
Over the last 50 years, advancements in fetal and neonatal therapies, aggressive anti-abortion activism and the Roe and Casey frameworks, among other forces, have led to a sociopolitical definition of “viability” as a bright gestational duration line, rather than a nuanced, individualized clinical diagnosis. This bright line has further been utilized to delineate the point in pregnancy after which abortion is deemed unjustifiable or immoral by the State.
However, the ability for a fetus to survive a delivery (“viability”) is immaterial to whether a pregnant individual has decision making capabilities about their own person. A potentially viable pregnancy must not negate the bodily autonomy of the person carrying the pregnancy. Any policy or legal limit on abortion means that a person’s bodily autonomy is dependent on the timeline of their pregnancy — that their rights necessarily diminish as the pregnancy progresses. It establishes a point in pregnancy where the government’s interest may outweigh other fundamental rights and the bodily integrity of an individual as well as the medical judgment of a clinician. But there is no point in pregnancy in which the government should have more say over an individual’s body than that individual.
B. Limits Threaten Patient Safety and Cause Harm
Limits on abortion care do not advance any medical interest on behalf of patients. On the contrary, legal limits only advance government interest in the lives and bodies of pregnant people, while jeopardizing patient safety, long-term health, and well-being.
A report from the National Academies of Sciences, Engineering, and Medicine titled The Safety and Quality of Abortion Care in the United States found that modern abortion care is safe throughout pregnancy, but that "abortion specific regulations in many states create barriers to safe and effective care."
Legal limits on abortion care significantly contribute to delays and denials of care. They override careful medical judgment with stark cut-offs, threaten health care professionals with civil and criminal penalties, and have lasting effects on the lives of those impacted. Accepting an “appropriate” or “reasonable” amount of government interference in abortion care requires erasing the very real, very harmful effects of abortion bans on the people who experience them.
C. Bans and Limits are Opposed by Professional Medical Organizations
Major medical and public health organizations oppose arbitrary limitations on access to evidence-based reproductive health services and the criminalization of such care. This broad opposition to government interference in medical care should not be erroneously understood to be limited to early abortions.
Some organizations have been explicit about viability:
American College of Obstetricians and Gynecologists (ACOG): “ACOG strongly discourages the inclusion of viability in legislation or regulation.”
Society of Family Planning (SFP): “The Society opposes the inclusion of gestational duration limits, including viability, in legislation, laws, initiatives, or regulations."
American College of Physicians (ACP): “Even when the viability determination is returned through statute to medical professionals, it still is a deficient public policy standard for the legal regulation of abortion. ACP believes it is not appropriate to legally regulate the provision of abortion services on the basis of viability.”
D. Limits are Untenable for Clinicians
Laws that prohibit abortion after potential fetal viability carry serious civil, criminal, and professional penalties. In both proposed federal legislation and existing state laws, clinicians are often charged with determining viability, but as previously explored, viability has no universal clinical definition. A medical professional who performs an abortion in the periviable period under such a vague law could never be sure the care they are providing is legal. This creates a “chilling effect” on care that is actually legal under the law. The chilling effect of gestational limits has been documented, and is evidenced by the gap between care that is actually available in states and care that is legal under the law.
Those who include limits in policy often try to soften their impact by including exceptions to those limits (e.g. rape, incest, life of the patient). To quote the aforementioned SFP summary again: “Exceptions to gestational duration bans are unworkable. Laws banning abortion after a specific gestational duration or fetal development marker commonly include exceptions for pregnancies that are the result of rape or incest, pregnancies that represent a risk to the life and health of the pregnant person, and/or pregnancies with a serious fetal health issue. The laws defining exceptions, however, are vague, confusing, and administratively cumbersome. Healthcare institutional leadership, legal counsel, and clinicians struggle to interpret these laws, leading to severely compromised patient care and abortion denials.”
PART 4: COMPROMISE AND LIMITS ARE NOT STRATEGIC
Responding to the overturn of Roe by reinstating Roe or similar policy may seem expedient but is both inadequate and unsustainable. Roe failed to survive not just a political battle, but a legal one. Nothing has changed that makes its framework more durable.
Given that past is prologue, a return to a Roe-era status quo squanders a once in a generation opportunity to reimagine reproductive rights, health, and justice. It squanders the opportunity to repair the fundamental issues with a rights framework most of us were born into and to strive for the liberation of which we dream.
A. Expansive Federal Policy Supports Proactive Work in the States
Coalitions and legislators in numerous states have secured expansive protections for abortion and reproductive rights without viability or gestational limits. However, in many states, local advocates have struggled to coalesce around expansive policies, facing financial pressure from well-funded outside interest groups touting viability bans as expedient “compromise” and “reasonable limits”. Outside interest groups and political expediency must not supersede the goals of ensuring rights of citizens across the United States. While this brief is addressing the critical need for expansive federal abortion protections, it is also clear that a similar strategy in as many states as possible will further the sustainability of the movement. By committing to an expansive federal framework, federal policymakers and members of Congress will reinforce state advocates’ work to coalesce around expansive policies, defuse influence from outside interest groups, and disrupt the harmful narrative that states under tenuous abortion access or existing bans should have to acquiesce that “some access is better than none”.
For a summary of existing state laws and the 41 states that ban abortion at some point in pregnancy, see (Appendix D).
B. Limits are Vulnerable to Exploitation by the Anti-Abortion Agenda
Enshrining a viability standard in federal law is not an incremental step toward expansive rights. On the contrary, viability and gestational duration limits are an incremental step toward establishing fetal personhood.
Viability and gestational duration limits are inherently vulnerable to anti-abortion political exploitation in laws, regulations, and political interpretations. Anti-abortion activists have signaled that their ultimate goal is fetal personhood, as articulated in documents like the Project 2025 Mandate for Leadership and the RNC 2024 Convention Platform. Expansive federal policy without limits protects abortion without reinforcing the underlying logic of fetal personhood.
C. Pro-Abortion Voters Don’t Want Limits
For decades, public opinion polling has shown that, while a majority of Americans support abortion, that support wanes later in pregnancy. But recent opinion research is challenging this conventional wisdom in two important ways.
First, the overturn of Roe has changed everything, fairly drastically. The number of Americans now saying abortion should be legal in the last three months of pregnancy is the highest Gallup has found in trends since 1996. Gallup’s polling shows that among key subgroups like Democrats and women, support for the legality of abortion in the last three months of pregnancy has jumped by double digits in the last few years.
Furthermore, the majority of people who think abortion should be legal are increasingly intolerant of any limits or government interference. And the voters for whom abortion is a top issue are more likely to be ones who want abortion to be legal in all cases.
Secondly, there has been some critique of how legacy public opinion polls like Gallup have oversimplified how people feel about later abortion. For instance, one recent tracking poll conducted by PerryUndem replicated the public polling questions used by Gallup about abortion legality. They found that among the 71% of respondents who answered that abortion should be illegal in the last three months of pregnancy:
40% say if and when someone can get an abortion should be left to the woman and her doctor
41% say lawmakers should stop trying to ban abortion
40% say we need abortion available throughout a pregnancy because of complex circumstances
55% want the doctor deciding if someone can get an abortion in the last three months of pregnancy
80% agree laws on abortion can’t account for every situation where an abortion might be needed
78% agree there are circumstances when a woman might need an abortion later in pregnancy
58% agree people should be able to make their own decisions on abortion throughout a pregnancy, without the government interfering
These responses suggest that a significant portion of the respondents who initially answered that abortion should be illegal in the last three months of pregnancy are conflicted. Conservatively, if 40% of the 71% who answered this way actually don’t want later abortion criminalized, it would mean a majority (56%) of Americans don’t support abortion bans at any point in pregnancy.
This suggests that outdated conventional wisdom about what is politically possible is no longer valid. If rights are going to be subject to public opinion, it is imperative that advocates and lawmakers pay attention to what the public is actually asking for. Increasingly, people who care about abortion want the government’s role to be limited to supporting abortion seekers and making care safe and available.
CONCLUSION
This memo is intended to address past and current efforts to secure abortion rights at the federal level, and to challenge those in power to wield it toward truly protective policies that do not discriminate. Our goal is to ensure that any effort to secure abortion rights is aligned with Reproductive Justice, anti-oppression, and anti-racist frameworks and is directly influenced by those whose lives are impacted by the policies in question.
While there have been proposals for federal legislation to secure abortion rights, to date only the Abortion Justice Act promises to do so without arbitrary, harmful limits. Furthermore, this proposed legislation addresses critical gaps in abortion access, funding, and the provider pipeline.
Other legislation may be necessary to fully dismantle the 50+ years of barriers and obstacles to accessing abortion care, the institutionalized stigma, and the threats to bodily autonomy people face. We can and should invest in bold policies, not restoring Roe.
While we vision for a just future, we must never forget that even the boldest future policies will not help someone access an abortion today. This memo is written at a time when hundreds of millions of dollars are pouring into state constitutional amendment campaigns. While we must invest resources in expansive and truly liberatory federal policies, we cannot abandon the abortion funds, practical support organizations, clinics and providers who are addressing the crisis at hand. We must approach this moment with abundance, not scarcity, and abundantly resource crisis responders like abortion funds, practical support organizations, clinics, and providers, while investing in long-term solutions that will guarantee nobody has to relive the trauma of abortion bans.
There has never been a better time for Reproductive Rights, Health, and Justice advocates and their political allies to come together, to collectively move forward. We cannot and will not let this opportunity be squandered pursuing failed strategies to secure limited protections or defending the status quo.
Authors:
Drs. Jenni Villavicencio and Colleen McNicholas
Co-Founders, Raven Lab for Reproductive Liberation
Pamela Merritt
Executive Director, Medical Students for Choice
Garin Marschall and Erika Christensen
Co-Directors, Patient Forward
NOTE: The views and opinions in this document are not intended to encourage the adoption or opposition to specific legislation by any elected official, nor are they intended to encourage support or opposition to any specific legislation by the public. Instead, this document is a broad discussion and analysis of the merits and consequences of various approaches to policy making.
APPENDICES
APPENDIX A - ABORTION CARE LATER IN PREGNANCY
Note: There is no generally accepted definition of “abortion care later in pregnancy” and is variably used to refer to an abortion anytime in the second and third trimesters.
Why Do People Seek Later Abortion Care?
Below are excerpts from a high-level summary of research on later abortion recently released by the Society for Family Planning (SFP) under the leadership of Katrina Kimport, PhD.
“Although most people seek abortions during the first trimester of pregnancy, there is a persistent demand for abortions after 13 weeks of pregnancy as a result of two broad circumstances. First, because people received new information about the pregnancy, such as a serious fetal health issue or a maternal health issue, or newly discovered that they are pregnant.”
“The second broad circumstance under which people need abortions later in pregnancy is because they experienced insurmountable barriers to abortion earlier in pregnancy, such as inaccessible care providers, difficulty paying for abortion, or inability to travel for care.”
Who are the Abortion Seekers Affected by Limits on Later Abortion Care?
Anyone who can become pregnant could need a later abortion. Because we do not live in equitable environments, some groups are more likely to need later care, and are more likely to be impacted by limits. These include young people, low-income people, people living in rural areas, and Black people. Limits on abortion care and bans deepen existing inequality in the US.
According to the SFP summary above, “People whose care is constrained by systems of oppression are disproportionately likely to be prevented from or delayed in obtaining abortion care by gestational duration limits.”
How Common is Later Abortion Care?
It is difficult to say with any certainty what percentage of abortions occur after 21 weeks or 24 weeks, or any point later in pregnancy. According to the Center for Disease Control’s annual Abortion Surveillance Report, approximately 1% of abortions occur at or after 21 weeks in selected reporting areas. This is widely misinterpreted as meaning that about 1% of all abortions occur after 21 weeks, but the “selected reporting areas” is key to avoiding misinterpretation of this statistic.
The 41 selected reporting areas providing gestational data do not include a number of states and Washington D.C. These states represent about one third of the U.S. population. And in each of these states, abortions are legal beyond 21 weeks: California, Connecticut, District of Columbia, Illinois, Maryland, Massachusetts, New Hampshire, New Jersey, New York State (although NYC is included), Pennsylvania, and Wisconsin. Further, we know abortions are provided beyond 21 weeks in almost all of these places. Many, like California and Illinois are destinations for abortion seekers who have to travel from nearby states with more restrictive gestational bans.
Researchers do agree the frequency of abortions falls off precipitously with each week of pregnancy. While later abortions are uncommon compared to earlier abortions, there are thousands of people who obtain this care every year, and likely more for whom it is out of reach.
Who are the Abortion Providers Affected by Limits on Later Abortion Care?
According to the Abortion Care Network’s Communities Need Clinics report, 86% of clinics that provide care after 22 weeks are independent clinics (i.e. not Planned Parenthood), and 100% of clinics that provide care after 26 weeks are independent.
Later abortion care is provided in some hospital settings, and since Dobbs, a number of hospitals have expanded their services. This follows a similar trend in clinics, where many have increased their gestational limits to meet the needs of patients seeking later care.
APPENDIX B - MAJOR EFFORTS TO ESTABLISH A FEDERAL RIGHT TO ABORTION
The Freedom of Choice Act (FOCA), first introduced in 1989 and last introduced in 2004, included a viability limit. Similarly, the Women’s Health Protection Act (WHPA), first introduced in 2013 and then as recently as 2023, also includes a viability limit.
Both WHPA and FOCA limited their protections to abortions obtained prior to potential fetal viability, with some exceptions after viability. While these pieces of legislation would not themselves prohibit abortions after viability, they would leave the state-level bans in place that Roe allowed. These bills represent an effort to codify the judicial balancing of the states’ versus the individuals' interest that was expressed in the Roe and Casey decisions. The Supreme Court eradicated this balancing and the limited right to abortion in the Dobbs decision in 2022, likewise doing away with the line once drawn at “viability” in federal law.
The Abortion Justice Act was introduced in 2023. This bill establishes a fundamental right to abortion without drawing any gestational or viability limit. In doing so, it extends federal protections to all abortion seekers and providers, throughout pregnancy.
APPENDIX C - VARYING DEFINITIONS OF VIABILITY IN POLICY
State laws and proposed federal laws use inconsistent non-clinical definitions of viability that lead to immense confusion. Below are a handful of the various definitions of viability included in state and federal policies:
Women’s Health Protection Act: The term “viability” means the point in a pregnancy at which, in the good-faith medical judgment of the treating health care provider, and based on the particular facts of the case before the health care provider, there is a reasonable likelihood of sustained fetal survival outside the uterus with or without artificial support.
U.S. Department of Health and Human Services Regs on Neonate Research: Viable, as it pertains to the neonate, means being able, after delivery, to survive (given the benefit of available medical therapy) to the point of independently maintaining heartbeat and respiration. The Secretary may from time to time, taking into account medical advances, publish in the FEDERAL REGISTER guidelines to assist in determining whether a neonate is viable for purposes of this subpart. If a neonate is viable then it may be included in research only to the extent permitted and in accordance with the requirements of subparts A and D of this part.
Ohio Criminal Code: "Viable" means the stage of development of a human fetus at which there is a realistic possibility of maintaining and nourishing of a life outside the womb with or without temporary artificial life-sustaining support.
Ohio Constitution: "Fetal viability" means "the point in a pregnancy when, in the professional judgment of the pregnant patient's treating physician, the fetus has a significant likelihood of survival outside the uterus with reasonable measures. This is determined on a case-by-case basis."
Ohio Abortion Law: "Viable" means the stage of development of a human fetus at which in the determination of a physician, based on the particular facts of a woman's pregnancy that are known to the physician and in light of medical technology and information reasonably available to the physician, there is a realistic possibility of the maintaining and nourishing of a life outside of the womb with or without temporary artificial life-sustaining support.
Ohio Court Decision, Werling v. Sandy: The term "viable" refers to the point in prenatal development at which time a fetus is capable of independent existence if removed from the mother's womb. It has often been stated that a fetus ordinarily becomes viable between the twenty-fourth and twenty-eighth weeks of the pregnancy.
Illinois Abortion Law: "Fetal viability" means that, in the professional judgment of the attending health care professional, based on the particular facts of the case, there is a significant likelihood of a fetus' sustained survival outside the uterus without the application of extraordinary medical measures.
Oklahoma Abortion Law: "Viable" means potentially able to live outside of the womb of the mother upon premature birth, whether resulting from natural causes or an abortion
Indiana Health Law: "Viability", for purposes of IC 16-34, means the ability of a fetus to live outside the mother's womb.
Florida Abortion Law: “Viable” or “viability” means the stage of fetal development when the life of a fetus is sustainable outside the womb through standard medical measures.
Viability has been historically used as a bridge to legal personhood. Citing a line of civil cases dating back to 1900 regarding a right of action for wrongful death or wrongful injury of a viable fetus, the legal theory of a viable fetus being a person jumped to criminal law in a South Carolina Supreme Court decision, State v. Horne (1984). The court held that “It would be grossly inconsistent for us to construe a viable fetus as a "person" for the purposes of imposing civil liability while refusing to give it a similar classification in the criminal context.” South Carolina then extended this in Whitner v. State (1997), saying “Indeed, it would be absurd to recognize the viable fetus as a person for purposes of homicide laws and wrongful death statutes but not for purposes of statutes proscribing child abuse.” This reasoning was then cited by the Alabama Court of Appeals in Ankrom v. State (2011), which held that the word “child” in the criminal chemical-endangerment statute applies to a viable fetus, “Likewise, in the present case, we do not see any reason to hold that a viable fetus is not included in the term ‘child.’” But this decision was overruled, in part, by the Alabama Supreme Court in Ankrom v. State (2013), where the court extended the personhood from a viable fetus established in the lower court’s decision throughout pregnancy to non-viable fetuses. This line of decisions has provided the basis for hundreds of people in the South to be prosecuted under chemical endangerment statutes no matter the outcomes of their pregnancies.
APPENDIX D - STATE LAWS
As of July 1st, 2024 41 states ban abortion at some point or points in pregnancy.
Fourteen states ban abortion completely:
Alabama, Arkansas, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, West Virginia
Seventeen states ban abortion at a specific gestational duration, ranging from six to 26 weeks LMP:
Arizona, Florida, Georgia, Iowa, Kansas, Massachusetts, Nebraska, Nevada, New Hampshire, New York, North Carolina, Ohio, Pennsylvania, South Carolina, Utah, Virginia, Wisconsin
Ten states ban abortion at potential viability:
California, Connecticut, Delaware, Hawaii, Illinois, Maine, Montana, Rhode Island, Washington, Wyoming
Nine states and Washington D.C. have no ban or gestational limit:
Alaska, Colorado, District of Columbia, Maryland, Michigan, Minnesota, New Jersey, New Mexico, Oregon, Vermont