Status of Abortion Laws Post-Dobbs

Multiple states have new limits, or pending court challenges and other conflicts, which affect abortion and contraceptive access. This will continue to change as issues move through the legislative and judicial process. Starnes Davis Florie LLC provided an initial state survey on abortion laws, which we will continue to update. Below we have featured key states with recent changes, or issues on the ballot in upcoming elections.

Alabama

Pre-Dobbs: There is no constitutional right to abortion in Alabama.1 Rather, the law in Alabama prohibited abortion where the post-fertilization age was 20 weeks or above, except in cases where serious injury or death to the mother may occur.2 Then, in 2019, the Human Life Protection Act3 was passed which banned all abortions except those involving ectopic pregnancies, lethal anomalies in the fetus, or where there was a medical emergency or a serious health risk to the mother. There was no mental or emotional health exception or any exception for rape/incest. The law classified performing an illegal abortion as a felony. The Alabama Human Life Protection Act was enjoined at the time of the Dobbs ruling.

Post-Dobbs: Abortion care was further restricted as a result of Dobbs. Following the Dobbs ruling, the injunction on the 2019 Human Life Protection Act was lifted by Alabama Attorney General and the abortion ban contained within the Act went into immediate effect.

  1.  AL Const. Art. I, § 36.06  
  2.  Ala. Code § 26-23B-5  
  3.  Ala. Code § 26-23H-4  

Alaska

Pre-Dobbs: Alaska has constitutionally protected the right to abortion.1 Prior to Dobbs, abortion was legal at all stages of pregnancy.

Post-Dobbs: Abortion care in Alaska will stay the same post-Dobbs. In Fall 2022, voters will determine if they would like to hold a constitutional convention and, if they elect to hold one, conservatives may try to undo the judiciary’s interpretation of the state constitution. Previous efforts to amend the state constitution have not been successful.

  1.  The Alaska Supreme Court has held that the Alaska Constitution Article 1, § 22 protects the right to abortion as a privacy right. See Valley Hosp. Ass’n, Inc. v. Mat-Su Coalition for Choice, 948 P.2d 963 (Alaska 1997). See also, e.g., Planned Parenthood of the Great Northwest v. State, 375 P.3d 1122 (Alaska 2016).  

Arizona

Background: Arizona does not constitutionally or statutorily protect the right to abortion. Arizona state law bestowed all the same rights, privileges, and immunities available to persons to “an unborn child at every stage of development[.]”1 State law allowed abortions after viability to preserve the life or health of the mother and/or in a medical emergency.2

Post-Dobbs: It is unclear how Dobbs will affect Arizona abortion care. Weeks after the leaked Dobbs opinion, abortion-rights supporters launched an initiative to codify the right to abortion in the state’s constitution. It must get more than 356,000 signatures by July 7 to be put on the ballot in November and allow voters to decide. There is also a bill currently proposed which makes it a felony to perform an abortion after 15 weeks.3 This bill will take effect 90 days after the Legislature adjourns (it adjourned on Saturday, June 25, 2022).

  1. Ariz. Rev. Stat. § 1-219
  2. Ariz. Rev. Stat. § 36-2301.01
  3. 2022 S.B. 1164  

Arkansas

Pre-Dobbs: Arkansas has not constitutionally or statutorily protected the right to abortion. In fact, there is an Arkansas constitutional amendment which protects the right of the unborn until birth.1 Prior to Dobbs, abortion was prohibited after 20 weeks post-fertilization (22 weeks after last menstrual period) except in cases of rape, incest, or to preserve the life or health of the mother.2

Post-Dobbs: Abortion care was further restricted as a result of Dobbs. Dobbs triggered The Arkansas Human Life Protection Act, which is an almost-total abortion ban, with the exception to save the life of the mother in a medical emergency, to save/preserve the health of the unborn child, spontaneous abortion, and ectopic pregnancy.3 There is no rape or incest exception.

  1. The Arkansas Constitution Amendment 68, § 2 states “The policy of Arkansas is to protect the life of every unborn child from conception until birth, to the extent permitted by the Federal Constitution.”
  2. Ark. Code Ann. § 20-16-1405
  3. Ark. Code Ann. § 5-61-301, et seq.  

California

Pre-Dobbs: Abortion has been legal in California up until viability and thereafter if necessary to protect the life or health of the mother.1

Post-Dobbs: Abortion care will stay the same post-Dobbs, though there are plans to expand abortion rights in the near future. The California legislature is considering thirteen bills that strengthen/expand access to abortion (i.e., help pay for out-of-state women to travel to California for an abortion; refuse to enforce out-of-state civil judgments on California abortion providers/volunteers; and authorizing nurse practitioners to perform abortions without the supervision of a doctor). November’s ballot may also have a constitutional amendment providing an explicit right to abortion/contraceptives.

  1. Cal. Health Code § 123468  

Colorado

Pre-Dobbs: Colorado had no restrictions on abortion. In April 2022, the governor enacted the Reproductive Health Equity Act1 which affirmed the right to an abortion and blocked public entities from denying or restricting that right.

Post-Dobbs: Abortion care will stay the same after Dobbs. Many patients from Texas, Kansas, Utah, and Wyoming have come (and will come) to Colorado for abortion services. The Legislature is considering how to support healthcare providers as the demand for abortion services increases post-Dobbs.

  1. H.B. 22-1279  

Connecticut

Pre-Dobbs: Connecticut state law protected the right to an abortion prior to the viability of the fetus, and explicitly allowed an advanced practice registered nurse, nurse-midwife, or physician assistant to perform an abortion.1 Abortion after viability was prohibited except in cases where the life or health of the mother was endangered.

Post-Dobbs: Abortion protection has expended as a result of Dobbs. As of July 1, 2022, abortion providers sued in another state may recover certain associated legal costs from the state, and the governor’s discretion in extraditing someone accused of performing an abortion has been limited.2

  1. Conn. Gen. Stat. Ann. § 19a-602(a)
  2. See §19a-602; 2022 Conn. Legis. Serv. P.A. 22-19 (S.B. 5414).  

Delaware

Pre-Dobbs: Delaware law protected the right to abortion before viability. It was allowed after viability when medically necessary to protect the mother’s life and/or when the fetus was not likely to survive outside the womb without extraordinary medical measures.1

Post-Dobbs: Abortion protection has expended as a result of Dobbs. After Dobbs, licensed physician assistants, certified nurse practitioners, and certified nurse midwives may perform abortions before viability and legal protection is available for abortion providers and patients (including out-of-state patients) from civil actions in other states.2

  1. Del. Code Ann. tit. 24, § 1790
  2. H.B. 455  

District of Columbia

Pre-Dobbs: D.C. has statutorily protected the right to abortion at all stages of pregnancy.1 However, D.C. law prohibits using local funds to pay for abortions for Medicaid patients.

Post-Dobbs: Abortion care in D.C. is unlikely to change due to Dobbs.

  1. See D.C. Code § 2-1401.06; United States v. Vuitch, 402 U.S. 62 (1971).  

Florida

Pre-Dobbs: Florida has constitutionally protected the right to abortion in the first trimester.1 Florida law banned abortions after viability, except for medical necessity and to save the pregnant woman’s life or avert a serious risk of imminent substantial and irreversible physical impairment.2

Post-Dobbs: It is unclear how Dobbs will affect abortion care in Florida. A Florida law banning abortions after 15 weeks (with exceptions for the life of the mother, to prevent serious injury to the mother, or if the fetus has a fatal abnormality) was scheduled to take effect on July 1, 2022 but was temporarily blocked.3 It is expected to be reinstated at a later date.

  1. See In re T.W., 551 So.2d 1186 (Fla. 1989).
  2. Fl. Stat. Ann. § 390.01112
  3. This law was challenged in the Second Judicial Circuit Court on June 29, 2022, but the state immediately appealed and triggered an automatic freeze of the injunction. An appeal is expected.  

Georgia

Pre-Dobbs: Abortion was not protected by the Georgia constitution or law. Georgia law generally prohibited abortions after 20 weeks, with exceptions for ectopic pregnancy, medical emergency, rape or incest if less than 20 weeks, and medically futile pregnancy.1 This law was enforced with medical licensing sanctions, civil actions by the woman against the provider, and a “born alive” law (assigning personhood status to a child born alive). A federal court enjoined this law from taking effect until Dobbs was decided.2

Post-Dobbs: It is unclear how Dobbs will affect abortion care in Georgia at this time. Georgia’s attorney general asked the Eleventh Circuit to allow the state’s abortion law to take effect, and the Court requested the parties file briefs discussing the effect of Dobbs on the appeal.

  1. See Ga. Code Ann. § 16-12-141 and § 31-9B-2(a)
  2. See SisterSong Women of Color Reproductive Justice Collective v. Kemp, 472 F.Supp.3d 1297 (N.D. Ga. 2020).  

Hawaii

Pre-Dobbs: Hawaii law allowed abortion until viability.1 Advanced practice registered nurses and physician assistants can provide abortion care.2

Post-Dobbs: Abortion care in Hawaii post-Dobbs is not likely to change. Abortion rights are strongly protected by Governor David Ige and the state legislature.

  1. Haw. Rev. Stat. § 453-16(c)
  2. 2021 S.B. 2282  

Idaho

Pre-Dobbs: Idaho law criminalized third trimester abortions except those performed in a hospital to preserve health of the mother and/or in the case of rape/incest.1 Second trimester abortions were lawful if performed in a hospital.

Post-Dobbs: Abortion care has been more restricted as a result of Dobbs. Dobbs triggered a ban on all abortions except in cases of reported rape or incest (it is required that the patient present the police report to the physician) or to protect the mother’s life.2 This law will take effect within 30 days of the Dobbs ruling. Some Republican legislators are considering introducing legislation that would prohibit abortion pills and emergency contraception.

  1. Idaho Code § 18-608
  2. Idaho Code § 18-622  

Illinois

Pre-Dobbs: Illinois law protected the fundamental right to make decisions about reproductive healthcare,1 and specified that a fertilized egg, embryo, or fetus did not have independent rights under the laws of Illinois. However, Illinois law still did not allow abortion after the fetus was viable unless it was necessary to protect the life or health of the mother.2

Post-Dobbs: Abortion care in Illinois likely will not change.

  1. Ill. Comp. Stat. 775 § 55/1-15
    1. § 55/1-25  

Indiana

Pre-Dobbs: Indiana has not constitutionally or statutorily protected the right to abortion.1 Indiana law has prohibited all abortions at or after 20 weeks following fertilization (22 weeks after the last menstrual period), except to prevent the substantial permanent impairment of the life or health of the mother.2 There was also a waiting period and a requirement for a pre-abortion ultrasound.

Post-Dobbs: Abortion care in Indiana is not likely to change immediately post-Dobbs. However, several injunctions restricting abortion may be lifted following the ruling, among which are prohibitions based on gender, race, or disability and banning a common second-trimester abortion procedure. Republican legislators have hinted at tightening abortion restrictions during the legislative session beginning on July 6, 2022.

  1. But see Clinic for Women, Inc. v. Brizzi, 837 N.E.2d 973 (2005), the Indiana Supreme Court declined to address the intermediary court’s determination that the state constitution protected a right to abortion.  
  2. See Ind. Code § 16-34-1-1 et seq. 35-42-1-6.

Iowa

Pre-Dobbs: Between 2018 and 2022, Iowa did have constitutional protection of the right to abortion, but it was reversed in June 2022.1 Prior to Dobbs, Iowa law prohibited abortion after the second trimester, and no abortion could be performed after 20 weeks of post-fertilization age.2 There were exceptions to preserve the life of the mother/health of the woman and for a physician-determined medical emergency.

Post-Dobbs: Abortion care in Iowa will not likely change. The Iowa Legislature may call a special session to promulgate further abortion restrictions but has not yet done so.

  1. Planned Parenthood of the Heartland, Inc. v. Reynolds, Civ. No. 21-0856, 2022 WL 2182983 (Iowa, June 17, 2022).  
  2. See Iowa Code § 707.7; 146B.2.  

Kansas

Pre-Dobbs: Kansas constitutionally protected the right to an abortion up to 22 weeks.1 However, doctors are not allowed to prescribe abortion medications via telemedicine consultations.

Post-Dobbs: Abortion care in Kansas will stay the same immediately after Dobbs. However, a constitutional amendment to remove the right to abortion under the state constitution will was put to a vote on the August 2, 2022, primary ballot. The amendment was rejected, with the race being called for the "no" vote the night of the election.

  1. Hodes & Nauser, MDs, P.A. v. Schmidt, 440 P.3d 461 (Kan. 2019) (distinguished by State v. McKinney, 481 P.3d 806 (Kan. Ct. App. 2021) on other grounds).  

Kentucky

Pre-Dobbs: Kentucky had no constitutional or statutory protection for abortion. Kentucky law previously banned abortion at 6 weeks, 15 weeks, and post-viability; however, the 6- and 15-week bans were enjoined.

Post-Dobbs: It is unclear how Dobbs will affect abortion care in Kentucky. Dobbs triggered a Kentucky law banning the abortion of an intrauterine pregnancy past the detection of a fetal heartbeat, unless there is a medical emergency or to prevent the death or substantial and irreversible impairment of a major bodily function of the pregnant woman.1 On June 29, 2022, a court enjoined this statute from going into effect. Additionally, voters will vote on a constitutional amendment declaring no right to abortion in November 2022.

  1. See Ky. Rev. Stat. § 311.772  

Louisiana

Pre-Dobbs: Louisiana had no constitutional or statutory protection for abortion. Louisiana banned abortions after 20 weeks in 2012, after 15 weeks in 2018, and after 6 weeks in 2019. However, the 15- and 6-week bans would only become effective if comparable bans in Mississippi were upheld by the Fifth Circuit Court of Appeals.

Post-Dobbs: Abortion care has been more restricted as a result of Dobbs. Automatically once Dobbs was handed down, a trigger ban criminalized all abortions except to prevent death of the mother or to avert serious permanent impairment of a life-sustaining organ of the mother.1 There is no current exception for rape or incest. This trigger ban, however, has been temporarily blocked by the filing of a lawsuit by abortion providers. The court heard arguments on July 8, 2022. A decision is still pending. Presently, all Louisiana abortion clinics have ceased to provide abortion services. There also is pending legislation that would amend the ban to remove the following scenarios from the definition of abortion: (1) removal of ectopic pregnancies, (2) the use of methotrexate to treat an ectopic pregnancy, and (3) the removal of a medically futile fetus.2

  1. La. Stat. Ann. § 40:1061
  2. S.B. 342  

Maine

Pre-Dobbs: Maine state law protected the right to abortion pre-viability, with exceptions for life or health of the mother or if the pregnancy was no longer viable.1 Nurse practitioners, physician assistants, and other medical professionals could perform abortions.

Post-Dobbs: Maine’s abortion rights are unlikely to change in the near future.

  1. Me. Rev. Stat. Ann. tit. 22, § 1598  

Maryland

Pre-Dobbs: Maryland state law protected the right to abortion pre-viability (with no gestational limit) and allowed physicians to advise patients based on the standard of care post-viability.1

Post-Dobbs: Abortion care is Maryland is not likely to change and may continue to expand. After Dobbs, Maryland legislature enacted laws that allows nurse practitioners, nurse midwives, and physician assistants to provide abortion services with assistance and extends insurance funding to Maryland Medical Assistance Program beneficiaries.2

  1. Md. Code Ann., Health Gen. § 20-209  
  2. Md. H.B. 937  

Massachusetts

Pre-Dobbs: Massachusetts protected the right to abortion both constitutionally and statutorily.1 State law protected the right to abortions before 24 weeks.2

Post-Dobbs: Abortion care in Massachusetts is not likely to change. In fact, on June 24, 2022, the governor signed an Executive OrderExecutive Order No. 600, which protects access to reproductive healthcare services by banning state agencies from assisting other states’ investigation into businesses or people for receiving/delivering abortion services that are legal in Massachusetts.

  1. In Moe v. Sec’y of Admin. & Fin., 417 N.E.2d 387 (Mass. 1981), the Supreme Court of Massachusetts held that the right to abortion is included in the fundamental due process right in the state Declaration of Rights.
  2. Mass. Gen. Laws Ann. ch. 112 § 12L-N  

Michigan

Pre-Dobbs: Michigan had no constitutional or statutory protections for the right to abortion. There were two dormant, pre-Roe laws that criminalized abortions except to preserve the life of the mother.1 These laws were enjoined by a federal court on May 17, 2022.2

Post-Dobbs: It is unclear how the pre-Roe laws will be applied. Governor Gretchen Whitmer filed a lawsuit requesting the Michigan Supreme Court declare the pre-Roe laws unconstitutional, but the Court has not yet acted. There could also be a constitutional amendment to protect the right to abortion on the November ballot.

  1. See Mich. Comp. Laws § 750.14; § 750.323
  2. Planned Parenthood of Michigan v. Atty. Gen. of the State of Michigan, Civ. No. 22-000044-MM, 2022 WL 2103141 (Mich. Ct. Cl., May 17, 2022).  

Minnesota

Pre-Dobbs: The right to abortion was constitutionally protected in Minnesota.1 Minnesota state law allowed abortions up to 24 weeks and contained some restrictions, like a 24-hour waiting period, and limiting performance of an abortion to physicians.2

Post-Dobbs: Abortion care in Minnesota is unlikely to change post-Dobbs. On June 25, 2022, the governor signed an Executive Order entitled “Protecting Access to Reproductive Health Care Services in Minnesota,” which reiterates that Dobbs will not change abortion care in Minnesota.The Order also prohibits executive branch cooperation with out-of-state investigations.

  1. Doe v. Gomez, 542 N.W.2d 17 (Minn. 1995)
  2. See Minn. Stat. Ann. § 145.4242. See also Hodgson v. Lawson, 542 F.2d 1350 (8th Cir. 1976) (holding older law, § 145.411, unconstitutional under Roe).  
  3. Minn. Exec. Order No. 22-16  

Mississippi

Pre-Dobbs: The right to abortion was not constitutionally or statutorily protected under Mississippi law. In fact, a Mississippi law banning abortions after 15 weeks became the basis of the Dobbs decision.1

Post-Dobbs: Abortion care has been more restricted as a result of Dobbs. After Dobbs, Mississippi’s trigger ban went into effect. Mississippi now bans all abortions except to save the life of the mother, or in cases of rape or incest that have been reported to law enforcement.After being challenged in court, the trigger ban is currently in effect.

  1. Miss. Code Ann. § 41-41-191
  2. Miss. Code Ann. § 41-41-45  

Missouri

Pre-Dobbs: Missouri state law banned abortions after 22 weeks.1

Post-Dobbs: Missouri’s abortion ban contained a trigger ban that criminalized all abortions except in cases of medical emergency, which took effect on June 24, 2022. Abortions in Missouri can only be performed in cases of medical emergency, or a decision, based on reasonable medical judgment, that abortion of the pregnancy is necessary to avert the death of the pregnant woman and/or to avoid “serious risk of substantial and irreversible physical impairment of a major bodily function of the pregnant woman.”2

  1. Mo. Ann. Stat. § 188.017
  2. Mo. Ann. Stat. § 188.015  

Montana

Pre-Dobbs: Case law held that the Montana Constitution offered protections for abortion.1 However, in 2021, a law was passed that banned abortions after 20 weeks, restricted access to abortion pills, and required providers to ask patients if they would like to hear a heartbeat or view an ultrasound before performing an abortion.2 This law was subsequently enjoined in state court.

Post-Dobbs: Abortion care will stay the same in Montana immediately following Dobbs, but could change pending the supreme court’s decision on the 2021 ban. Additionally, Montana voters will vote in November 2022 on whether they support a state law requiring abortion providers to give lifesaving treatment to a fetus born alive after a failed abortion.

  1. Armstrong v. State, 989 P.2d 364 (Mont. 1999).
  2. Mont. Code Ann. § 50-20-603  

Nebraska

Pre-Dobbs: Nebraska law prohibited abortion at or after 20 weeks following fertilization unless the mother faced a risk of death or severely compromised health.Two small towns (Bluehill and Hayes Center) banned abortions within the city limits. Medical abortions via telemedicine were not permitted.

Post-Dobbs: Abortion care remains the same in Nebraska post-Dobbs. However, while previous attempts to totally ban abortion in the state failed, there is discussion that further attempts to restrict abortion could be introduced by the legislature.

  1. Neb. Rev. Stat. Ann. § 28-3, 106   

Nevada

Pre-Dobbs: Nevada constitutionally protected the right to abortion up to 24 weeks, and to preserve the life or health of the mother thereafter.

Post-Dobbs: Abortion rights have been expanded since Dobbs. On June 28, 2022, Governor Steve Sisolak signed Executive Order 2022-08 entitled “Protecting Access to Reproductive Health Services in Nevada.” This Order protects abortion patients and providers from other states’ prosecution, providers from professional discipline, and bars state agencies from aiding other states’ investigations. Anti-abortion advocates have hinted at proposing laws that require waiting periods, mandatory counseling, and/or requiring parental notification/consent for minors in the future.

New Hampshire

Pre-Dobbs: In January 2022, New Hampshire banned abortions after 24 weeks.1 Ahead of the Dobbs decision, it added exceptions for fetal abnormalities and the life of the pregnant person.2 It also lifted the mandate requiring ultrasounds before every abortion regardless of medical necessity.

Post-Dobbs: Abortion care in New Hampshire will not immediately change post-Dobbs. The Legislature returns to session in Fall 2022, when some Republican legislators are expected to try to propose further abortion-restricting bills.

  1. 2021 H.B. 625
  2. 2022 H.B 1609  

New Jersey

Pre-Dobbs: New Jersey state law protected the right to abortion, to contraception, and to carry a pregnancy to term.1

Post-Dobbs: Abortion care in New Jersey will not change post-Dobbs. The governor has signed two bills that protect the right to abortion for out-of-state residents and bar extradition of providers/patients states with abortion bans and require insurance companies to cover abortion services.

  1. See N.J. Stat. Ann. § 10:7-2; Right to Choose v. Byrne, 450 A.2d 925 (N.J. 1982).

New Mexico

Pre-Dobbs: New Mexico had no bans on abortion and, in 2021, repealed its pre-Roe abortion bans. However, there were no statutory or constitutional protections for the right to abortion.

Post-Dobbs: Abortion rights have been expanded since Dobbs. On June 27, 2022, the governor signed Executive Order 2022-107 Protecting Access to Reproductive Health Care Services in New Mexico, which solidified the right to abortion in the state. More guarantees to abortion access, such as state funding and protection for out-of-state patients, may be enacted during the next legislative sessions. New Mexico is home to the only independent clinics in the U.S. that perform third trimester abortions without conditions, and the legal climate post-Dobbs is unlikely to affect that.

New York

Pre-Dobbs: New York state law protected the right to abortion within the first 24 weeks of pregnancy or to preserve a mother’s life.1 It also allowed abortions after 24 weeks for nonviable fetuses or to protect the mother’s life. New York state law also provided public funding for abortion services.2

Post-Dobbs: Abortion care will stay in the same post-Dobbs. If anything, the New York legislature may pass a constitutional amendment protecting the right to abortion in an effort to protect access if the state law is ever repealed.

  1. N.Y. Pub. Health § 2599-aa-bb (The Reproductive Health Act)
  2. S.B. 10148, 7437  

North Carolina

Pre-Dobbs: North Carolina did not constitutionally or statutorily protect the right to abortion. It had a pre-Roe statute that banned abortions after 20 weeks except in cases of medical emergency, but that law was held unconstitutional in 2019.1 After that ruling, the right to obtain an abortion was extended through the point of viability.

Post-Dobbs: Abortion care in North Carolina will stay the same immediately after Dobbs. However, the pre-Roe law banning abortions after 20 weeks could be re-enacted by the state Attorney General through formal action in the coming months. There is also pending legislation that would amend the pre-Roe law to allow abortions after 20 weeks in the case of medically futile fetuses or rape/incest and to require a report of each abortion to the Department of Health and Human Services.2

  1. N.C. Gen. Stat. Ann.
  2. 2021 H.B. 1126  

North Dakota

Pre-Dobbs: North Dakota did not constitutionally or statutorily protect abortions. Prior law prohibited abortions after viability.1

Post-Dobbs: Abortion care will likely be more restricted post-Dobbs. A North Dakota law will go into effect on July 28, 2022.2 This law criminalizes all abortions unless performed to increase the probability of a live birth, prevent the death of the mother, or in cases of rape/incest.

  1. N.D. Cent. Code § 12.1-02.1-04
  2. N.D. Cent. Code § 12.1-31-12  

Ohio

Pre-Dobbs: Ohio state law allowed abortions up to 22 weeks of pregnancy, but only to save the mother’s life or prevent the mother’s health from being seriously compromised thereafter.1 Parental consent of minors, a required ultrasound, and in-person counseling with a 24-hour waiting period were all restrictions in place before Dobbs.

Post-Dobbs: Abortion care has been further restricted post-Dobbs. An Ohio law that was previously enjoined took effect on June 24, 2022.2 The law criminalizes abortions after a heartbeat is detected (6 weeks) but does not apply to abortions to prevent the death or “serious risk of substantial and irreversible impairment of a major bodily function of the pregnant woman.” It requires a physician who performs an abortion to document that the procedure is necessary to prevent the death/substantial impairment of major bodily function of the mother, specify the mother’s medical condition, and the medical rationale behind the procedure. The physician is required to maintain a copy of the documentation for at least seven years from its creation.3

  1. Ohio Rev. Code Ann. § 2317.56-2317.61
  2. See Ohio Rev. Code § 2919.192; Preterm v. Yost, 2022 WL 2290526  
  3. Ohio legislators have also sought to propose 2019 S.B. 23, 2021 S.B. 304, 2021 H.B. 421, and 2021 H.B. 378, which will modify medical abortion restrictions, require an ultrasound before abortion, and give notice about reversing medical abortions before treatment, but these will not be addressed until next year’s legislative session.  

Oklahoma

Pre-Dobbs: Oklahoma did not constitutionally or statutorily protect the right to abortion. Oklahoma passed a law in early 2022 that barred physicians from performing abortion at any point in the pregnancy unless it was to save the life of the mother or if the pregnancy was the result of rape or incest.1 The law worked around the Roe protections by allowing private citizens to pursue civil actions of up to $10,000 against anyone who performed or aided in the provision of an abortion.

Post-Dobbs: Abortion care has been further restricted post-Dobbs. Oklahoma has a trigger ban2 that took effect on June 24, 2022, which resurrects an older pre-Roe abortion ban.The resurrected law prohibits abortion at all stages of fetal development except to save the life of the mother.

  1. Okla. H.B. 4327
  2. Okla. S.B. 1555
  3. Okla. Stat. Ann. 21 § 861.  

Oregon

Pre-Dobbs: Oregon state law protected the right to an abortion at all stages of pregnancy.1

Post-Dobbs: Oregon’s strong abortion protections are unlikely to change. Governor Kate Brown and the Oregon legislature are committed to protecting the right to abortion and ensuring access to out-of-state residents. The Reproductive Health and Access to Care Work Group was recently formed by the legislature, which brings together providers, clinics, and community organizations to propose legal measures to lawmakers to protect and strengthen the right to abortion. Oregon also will continue to provide public funding for abortion and require private insurance coverage of abortion. The state does not restrict the type of healthcare practitioner who can provide abortion care and in 2022 the legislature appropriated $15 million to the Reproductive Health Equity Fund to provide support, including lodging and travel expenses, for people seeking abortions in Oregon.

  1. Or. Rev. Stat. Ann. § 659.880  

Pennsylvania

Pre-Dobbs: Pennsylvania state law allowed abortions up to 24 weeks of pregnancy and thereafter abortions were only permitted in cases of medical necessity.1

Post-Dobbs: Abortion care in Pennsylvania will stay the same immediately post-Dobbs. However, abortion restrictions will likely be tightened if a Republican governor is elected in the upcoming 2022 election. Moreover, there are numerous proposed laws seeking to strengthen potential abortion bans. These include a ban on abortions after the heartbeat is detected (around 6 weeks) or following a prenatal diagnosis of Down syndrome, increased requirements for detailed medical consultations prior to abortion, and requiring pain medication to be administered for the fetus when abortions are performed beyond 12 weeks.2 Republican legislators have also proposed a constitutional amendment which would explicitly say the Pennsylvania constitution does not guarantee abortion rights.3 Finally, there is pending litigation on state funding of abortion services.4

  1. 18 Pa. Cons. Stat. Ann. § 3202 (2021), et seq.
  2. See H.B. 1500, 904, 378, 1872, 21
  3. S.B. 956
  4. Allegheny Reprod. Health Ctr. v. Pennsylvania Dept. of Human Servs., 2020 WL 9259846 (Pa. Cmwlth., Feb. 27, 2020  

Rhode Island

Pre-Dobbs: Rhode Island state law allowed abortion before viability, and after viability when necessary to preserve the life or health of the mother.1

Post-Dobbs: Abortion services in Rhode Island will stay the same after Dobbs. If anything, the legislature may further protect abortion providers and patients.

  1. See R.I. Gen. Laws Ann. § 23-4.13-2; Benson v. McKee, 273 A.3d 121 (R.I. 2022).

South Carolina

Pre-Dobbs: South Carolina had a state “heartbeat law” on the books which was not enforceable pre-Dobbs. It prohibited abortions when there was a fetal heartbeat, with exceptions for rape or incest before 20 weeks, death or serious bodily injury, and/or fetal anomaly “incompatible with sustaining life after birth.”1 Perpetrators were subject to criminal and civil penalties.

Post-Dobbs: Courts have lifted the injunction on the old “heartbeat law” and it is now in effect. Abortions are now banned if a heartbeat can be detected except in cases of medical emergency, fetal anomaly, or to prevent death or risk of substantial and irreversible impairment of a major bodily function of the mother. If the fetus is less than 20 weeks, there are still rape and incest exceptions available but if a provider performs an abortion under the rape/incest exception, he/she must report the allegation of rape/incest within 24 hours to the sheriff in the county where the abortion was performed. Violations of the abortion ban may result in civil penalties and up to two years of imprisonment. A special legislative session may be held to consider more restrictive abortion bills, but no action has been taken yet.

  1. S.C. Code Ann. § 44-41-610 to 44-41-740  

South Dakota

Pre-Dobbs: South Dakota state law banned abortions after 22 weeks of pregnancy except in cases of medical emergency.1

Post-Dobbs: Abortion care has been further restricted post-Dobbs. South Dakota has a trigger ban which went into effect. It criminalizes any type of abortion except to preserve the life of the mother. There is no exception for rape or incest. South Dakota also prohibits medical abortion by telemedicine. Abortion access may be restricted further pending the current legislative session.2

  1. S.D. Codified Laws § 34-23A-2—5.
  2. S.D. Codified Laws § 22-17-5.

Tennessee

Pre-Dobbs: Tennessee did not have constitutional protection for the right to abortion, but its state law protected the right to abortion before viability if it was performed in a hospital and with the informed consent of the mother.1 After viability, physicians could perform an abortion only in the case of medical emergency.

Post-Dobbs: Abortion care has been further restricted post-Dobbs. Tennessee has a trigger ban which will take effect on July 25, 2022.2 It criminalizes providers of abortions at any stage of pregnancy, except to prevent the death of the mother or “serious risk of substantial and irreversible impairment of a major bodily function of the pregnant woman.” This does not include the mother’s mental health. There is also no current exception for rape or incest, but some legislators are hoping to add an exception for child sex victims. Until the trigger ban goes into effect, Tennessee will implement a “heartbeat ban,” which essentially bars abortions after about six weeks of pregnancy.

  1. See Tennessee Constitution, Art. 1 § 36; Tenn. Code Ann. § 39-15-201 et seq.
  2. Tenn. Code Ann. § 39-15-213  

Texas

Pre-Dobbs: Texas state law1 criminalized abortions after a fetal heartbeat could be detected, and allowed private citizens to bring a lawsuit against doctors or those who help women obtain an illegal abortion. Texas also had an older, pre-Roe law that banned all abortions except to save the life of the mother.2

Post-Dobbs: Abortion care has been further restricted post-Dobbs. Texas has a trigger ban that will take effect on July 24, 2022.3 It bans all abortions unless necessary to preserve the life or health of the mother, to prevent the death of the mother or substantial impairment of a major bodily function of the mother, and in cases of medical emergency. Texas’ pre-Roe abortion law has been enjoined until at least July 12, 2022.4

  1. Tex. Health Code Ann. § 171.200 et seq.
  2. Tex. Health Code Ann. § 4512 et seq.
  3. Tex. Stat. Ann. § 170A.001, et seq.,
  4. Whole Woman’s Health v. Paxton, Civ. No. 2022-38397 2022 WL 2314499 (Tex. Dist., June 27, 2022)  

Utah

Pre-Dobbs: There was no statutory or constitutional protection for abortion. A trigger ban1 was in place that would ban all abortions with exceptions for rape, incest, rape of a child, prevention of death/serious risk of substantial and irreversible impairment of major bodily function of the mother. There was also an exception if two physicians performing maternal fetal medicine concurred, in writing, that the fetus has a lethal defect or “a severe brain abnormality that is uniformly diagnosable.”

Post-Dobbs: Utah’s trigger law went into effect, but was put on temporary hold for 14 days, beginning on June 27, 2022, while the courts prepare to hear challenges to the trigger law.2 Currently, it appears a less restrictive law banning abortions only after 18 weeks is in effect while the legal challenges to the trigger law are worked out. Requirements for face-to-face informed consent and a 72-hour waiting period also appear to still be in effect.

  1. Utah Code Ann. § 76-7a-201
  2. Planned Parenthood v. Utah, 2022 WL 2314556  

Vermont

Pre-Dobbs: Vermont state law protected the fundamental right to abortion at any stage in Vermont.The legislature was also in the process of amending its constitution to protect abortion rights, as well as the right to get pregnant and/or have access to birth control.2

Post-Dobbs: Abortion care will stay the same after Dobbs. In November 2022, voters will vote on amending the state constitution to include the protection of abortion rights.

  1. Vt. Stat. Ann. 18 § 9493-9498

87 Reproductive Liberty Amendment or Proposal 5  

Virginia

Pre-Dobbs: A Virginia statute88 banned abortions after the second trimester. Third trimester abortions are legal only in cases where the mother’s life or their physical or mental health are at risk, which can only be determined by their physician and two consulting physicians. Minors must have parental consent to obtain an abortion.

Post-Dobbs: There is proposed legislation89 that would ban abortions after 20 weeks except in cases where there is a substantial and irreversible risk of physical impairment or death to the mother. The proposed legislation does not contain any mental or emotional health exceptions. The provider would also a require abortion providers to report the postfertilization age, method of abortion used, whether an intra-fetal injection was used, and age/race of the mother. Further, if the fetus is over 20 weeks, the provider will be required to report the basis of the mother’s medical condition that necessitated the abortion and whether or not the abortion method used was the one that would provide the fetus the best opportunity to survive (and if not, why not). Both criminal and civil penalties could be administered, including allowing either the mother or the father of the aborted fetus to seek monetary damages against the provider.

88 Va. Code Ann. § 18.2-72

89 2022 S.B. No. 710  

Washington

Pre-Dobbs: A state statute protected the right to an abortion prior to viability, or thereafter to protect the mother’s life or health.90 In 1991, Washington voters passed Initiative Measure 120 which protected a woman’s right to choose to have an abortion prior to viability, or to protect her life or health, from state interference. Viability is to be determined by the judgment of the physician.

Post-Dobbs: Abortion services in Washington are not likely to change post-Dobbs. If anything, abortion protection could be strengthened by the legislature.

90 Wash. Rev. Code Ann. § 9.02.110  

West Virginia

Pre-Dobbs: The state constitution expressly denied any right to (or funding for) abortion.91 There was also a law explicitly prohibiting abortion after 22 weeks after the last menstrual period with exceptions for the preservation of the mother’s life, to prevent a serious risk of substantial and irreversible physical impairment of a major bodily function (not including mental health) of the mother, and for a medically nonviable fetus.92 However, there was also an older, pre-Roe law that criminalized all abortions unless conducted to save the mother’s life.93

Post-Dobbs: It is unclear how state officials intend to apply the conflicting laws in the state’s code. The only abortion clinic in the state has ceased abortion services because of the threat of criminal penalties.

91 W. Va. Const. Art. 6, § 57  

92 W.Va. Code Ann. § 16-2M-4

93 W. Va Code Ann. § 61-2-8  

Wisconsin

Pre-Dobbs: Wisconsin had several laws regarding abortion. One law94 made it a felony to perform an abortion after viability, with the exception to preserve the life or health of the mother. However, there was an older, dormant law95 that banned abortions even before viability.

Post-Dobbs: It is not clear how state officials will apply these conflicting laws post-Dobbs, so the state attorney general has filed a lawsuit requesting clarification. Many doctors have stopped performing abortions in the meantime.

94 Wis. Stat. Ann. § 940.15

95 Wis. Stat. Ann. § 940.04  

Wyoming

Pre-Dobbs: The right to abortion was not constitutionally or statutorily protected in Wyoming.

Post-Dobbs: Abortion care has been further restricted post-Dobbs. Wyoming has a trigger law,96 which will ban abortions after viability except when necessary to preserve the woman from a serious risk of death or of substantial and irreversible physical impairment of a major bodily function, in cases of incest, and in cases of sexual assault. There is no exception for psychological or emotional conditions. The ban is expected to take effect on July 25, 2022. A physician or other person performing an illegal abortion can face felony charges and imprisonment up to 14 years.

96 Wyo. Stat. Ann. § 35-6-102 (2021)