Glossary: Abortion Bans, Restrictions and Protections

From TRAP laws to trigger bans and beyond, this glossary will familiarize you with terms used in discussing abortion restrictions and protections and related legal terms.

Please note: This glossary is from the Center’s “What if Roe Fell?” interactive tool, which details state abortion laws and policies and explains what might happen to abortion rights and access in each U.S. state and territory if the U.S. Supreme Court were to weaken or overturn Roe v. Wade.

Abortion Bans

Pre-Roe bans

States and territories passed these abortion bans before Roe was decided, but the landmark decision made them unenforceable. If Roe is overturned, these laws could be revived in one of two ways. In some states, a ban was never declared unconstitutional or blocked by the courts, and therefore if Roe is limited or overturned, state officials could seek to enforce it. In other states, where courts have blocked or limited a pre-Roe ban based on the decision, officials could file court actions asking courts to activate the ban if Roe fell.

Trigger bans

Abortion bans passed since Roe that could become effective if the Supreme Court limited or overturned Roe. None of these bans is enforced.

Pre-viability gestational bans

Laws that prohibit abortion before a fetus is viable; these laws are unconstitutional under Roe. Gestational age is counted in weeks either from the last menstrual cycle (LMP) or from fertilization. Some of these bans are not enforced.

Method bans

Laws that prohibit a specific method of abortion care, most commonly dilation and extraction (D&X) procedures and dilation and evacuation (D&E) procedures. Some of these bans are not enforced.

Reason bans

Laws that prohibit abortion if sought or potentially sought for a particular reason. These bans name sex, race, and genetic anomaly as prohibited reasons. However, there is no evidence that pregnant people are seeking abortion care because of the sex or race of their fetus. [1] Some of these bans are not enforced.

Criminalization of self-managed abortion (SMA)

Some states criminalize people who self-manage their abortion, i.e., perform it outside of a clinical setting.

Abortion Restrictions

TRAP laws

Targeted regulation of abortion providers laws single out physicians who provide abortion care and impose various legal requirements that are different from and more burdensome than those imposed on physicians who provide comparable types of care. These laws do not increase patient safety and are counter to evidence-based clinical guidelines. [2]

TRAP laws fall into several categories, including regulation of locations where abortion is provided and/or facility specifications, provider qualifications, and reporting requirements. Compliance is often costly and can require unnecessary facility modifications. (Some of these laws are not enforced.)

Parental involvement

Laws that require providers or clinics to notify parents or legal guardians of minors seeking abortion prior to an abortion (parental notification) or document parents’ or legal guardians’ consent to a minor’s abortion (parental consent). In order to be constitutional, parental involvement laws must include a process whereby a judge can approve a minor’s petition without parental involvement. [3] (Some of these laws are not enforced.)

Consent laws

Laws that require pregnant people to receive biased and often inaccurate counseling or an ultrasound prior to receiving abortion care, and, in some instances, to wait a specified amount of time between the counseling and/or ultrasound and the abortion care. These laws serve no medical purpose but, instead, seek to dissuade pregnant people from exercising their fundamental right. (Some of these laws are not enforced.)

Hyde Amendment

In 1976, Rep. Henry Hyde (R-IL) successfully introduced a budget rider, known as the Hyde Amendment, that prohibits federal funding for abortion. Congress has renewed the Hyde Amendment every year since its introduction.

Abortion Protections

Statutory protections for abortion

Laws passed by states that protect the right to abortion.

State constitutional protection

A declaration from the state’s highest court affirming that the state constitution protects the right to abortion, separately and apart from the existence of any federal constitutional right.

Abortion Access

Public funding

States are required to provide public funding through the state Medicaid program for abortion care necessitated by life endangerment, rape, or incest. States can also dedicate state-only funding to cover all or most medically necessary abortion care for Medicaid recipients.

Private insurance requirements

States can require private health-insurance plans that are regulated by the state to contain specific benefits, including abortion coverage.

Clinic safety and access

Laws that prohibit, for example, the physical obstruction of clinics, threats to providers or patients, trespassing, and telephone harassment of the clinic, and/or create a protected zone around the clinic.

Abortion Provider Qualifications

Scope of practice for health-care practitioners is regulated by state legislatures and licensing boards. Generally, state legislation does not outline specific medical care that is within or beyond a practitioner’s scope of practice. However, many states have treated abortion differently by restricting the provision of abortion to physicians. Other states have taken proactive measures to expand the types of clinicians who may lawfully provide abortion care by repealing physician-only laws or expressly authorizing physician assistants, certified nurse midwives, nurse practitioners, and other qualified medical professionals to provide abortion care through legislation, regulations, or attorney general opinions.[4]

Repeal by implication

When a law is expressly repealed, the legislature passes a new law that explicitly states that the old law is repealed.[5] Under the doctrine of implied repeal, if a new statute is enacted that conflicts with an older statute, the older statute is said to have been “repealed by implication” and can no longer be enforced.

In order to argue successfully that an abortion ban has been repealed by implication and is therefore no longer enforceable, it is usually necessary to show that the state has subsequently enacted laws regulating abortion that cannot be reconciled with the ban. For example, after Roe was decided, the Louisiana State Legislature passed several statutes regulating abortion and setting forth the circumstances under which abortions would be permitted, without explicitly repealing its pre-Roe ban. A federal district court reviewing the laws found that an irreconcilable conflict existed between the statutes stating when abortion would be legal and the pre-Roe ban making abortion illegal. Therefore, the ban was repealed by implication.[6]

However, this determination is often not so clear-cut. For example, many states have enacted restrictions on the abortions that are permitted in the state—such as a requirement that pregnant people wait twenty-four hours after receiving certain state-scripted and biased information before obtaining an abortion (“mandatory-delay/biased-counseling” laws)—rather than passing a statute affirmatively setting forth the conditions under which abortions are permitted. In this situation, a court could decide that these later enacted statutes were not irreconcilable with an earlier ban statute by interpreting the mandatory-delay/biased-counseling law as a regulation on the few abortions that might be allowed under the ban statute. To further complicate things, although most states recognize the doctrine of implied repeal, courts in many states are reluctant to find implied repeal. Thus, while repeal by implication may be the best legal argument available against immediate enforcement of a pre-Roe ban, abortion rights advocates should consider other strategies as well.

In effect

A law has been enacted, and the effective date in the legislation has passed.

Enjoined

The state cannot enforce a law that would otherwise be effective because of the decision by a court to temporarily or permanently enjoin its enforcement.


References

1. Bonnie Steinbock, Preventing Sex-Selective Abortions in America: A Solution in Search of a Problem, The Hastings Center (2017).

2. See, e.g., Increasing Access to Abortion, (Nov. 2014, reaffirmed 2019); National Abortion Federation, Clinical Guidelines for Abortion Care (2020).

3. See Planned Parenhood of Cent. Missouri v. Danforth, 428 U.S. 52, 94, 96 S. Ct. 2831, 2852, 49 L. Ed. 2d 788 (1976) (“the State does not have the constitutional authority to give a thrid party an absolute, and possibly arbitrary, veto over the decision of the physician an dhis patient to terminate the patient’s pregnancy”).

4. See, e.g. Me. Rev. Stat. Ann. tit. 22,  § 1598(1). Law was amended to allow physician assistants and advanced practice nurses to also perform abortion. See H.P. 922, 129th Leg., 1st Reg. Sess. (Me 2019); Wash. Rev. Code  § 9.02.110; Wash. Att’y Gen. Op 2004 No. 1 (2004); Wash. Att’y Gen. Op 2019 No. 1 (2019).

5. See, e.g., Mass. Gen. Laws ch. 272,  § 19, repealed by S.B. 784, 190th Gen. Assemb., Reg. Sess. (ma 2018).

6. Planned Parenthood of Nashville v. McWherter, 817 S.W.2d 13, 16 (1991); see also McCorvey v. Hill, No. 03-10711 (5th Cir. Sept. 14, 2004) (Texas’s pre-Roe statute repealed by implication).

This glossary came from the Center’s “What if Roe Fell?” interactive tool. Click here to explore.