Twenty-two states passed new laws regulating access to abortion in 2021. At least sixteen states restricted access to abortion in some way while six states expanded access to the procedure.
Current Supreme Court precedent allows states to restrict or expand access to abortions without running into constitutional problems. States can restrict specific abortion methods, limit or prohibit public funding or insurance coverage for abortions or require mandated counseling or providing specific information to those seeking an abortion. The court is currently reviewing two laws restricting abortion from Texas and Mississippi.
Here is a snapshot of new legislation on abortion restrictions:
Restriction on insurance coverage of abortion
Alaska’s 2021 state budget includes a ban on using Medicaid funds to pay for an abortion except in cases of rape, incest, or if a pregnant person’s life is endangered.
An Arkansas bill prohibits state and local governments from funding abortion providers with taxpayer funds, except when an abortion is required to save a person’s life.
Idaho legislation prevents public funds from being used to support abortion procedures and care. Public funds can only be used for abortions that are necessary to protect the patient’s life or in order to comply with the federal Medicaid program.
Montana law prohibits health insurance plans purchased through the state from covering an abortion unless the patient’s life is endangered, or in cases of rape or incest.
Wyoming passed legislation that prevents the University of Wyoming and state community colleges from funding abortions through their health insurance programs.
Amendments to state constitutions banning abortion
Both the Kansas and Kentucky legislatures approved ballot measures that will ask voters in statewide 2022 elections to amend the state constitution to explicitly exclude the right to an abortion and to prohibit public funding for abortions.
Restrictions on methods of abortion or access to abortions
Eight states passed restrictions on access to abortion through medication[1]: Arizona, Arkansas, Indiana, Montana, Ohio, Oklahoma, South Dakota, and West Virginia.
Montana law requires that abortion-inducing medication must be provided in-person. It also mandates pregnant people receive counseling in the presence of a physician at least 24 hours before an abortion.
Ohio and Arizona both prohibited the mailing of abortion medications. Due to the new regulations in both states, physicians must administer abortion medications to patients in person.
Restrictions on abortion based on fetal development
At least six states passed laws prohibiting when a person can get an abortion. Four states ban abortion once a medical professional detects a fetal heartbeat[2]. The US National Library of Medicine’s public encyclopedia says, “most often, the heartbeat cannot be heard or seen on an ultrasound until at least 6 to 7 weeks.” Other states allow abortion up until 20 weeks or four and a half months after a person's last menstrual period. Montana passed a bill this year banning abortion at 20 weeks. New Hampshire passed legislation banning abortions 24 weeks after a pregnant person’s last menstrual period.
In 2021, Texas, Idaho, Oklahoma, and South Carolina passed bills prohibiting abortion if a fetal heartbeat is detected. Each of these bills declare that the health care professional that performs an abortion after a fetal heartbeat is detected, except in cases when the mother’s life or health is endangered or in cases of rape or incest, must face a fine and/or jail time.
The Texas bill is enforced exclusively through civil actions brought by members of the public, not government agencies. The law allows private citizens to sue providers of abortions or anyone else who assists a person to receive an abortion such as drivers to a clinic or anyone who financially assists the abortion. A person receiving an abortion cannot be sued under the law.
The Supreme Court is reviewing the constitutionality of two laws restricting abortion. The court is currently hearing arguments over Texas’s abortion law, Senate Bill 8, which bans abortions after a fetal heartbeat is detected. The bill doesn’t have a way for the government to enforce the ban. Instead, it allows Individuals to sue anyone they believe helped a pregnant person get an abortion.
The Idaho law says that any person violating its new law faces between two and five years of imprisonment. Oklahoma law states that any person that violates their abortion law would be charged with homicide.
Restrictions on abortion based on fetal genetic abnormalities
According to a report from the National Library of Medicine, genetic screening of a fetus can identify patients at high risk for common conditions early in a pregnancy. These screenings help facilitate an early diagnosis and potentially an early abortion. Arizona prohibits all abortion procedures and funding for abortions because of any genetic abnormality. The law applies to people performing abortions and violating it would result in 3.5 months of prison.
South Dakota’s law bans abortion procedures because of down syndrome detected in a fetus. The law applies to people performing abortions. Those who violate the ban may be fined at least $10,000.
“Trigger” laws banning abortion
Trigger laws are legislative bans on abortion procedures that are currently inactive but will be triggered and illegalize abortion if the Supreme Court overturns Roe v. Wade. Oklahoma and Texas passed legislation that include trigger bans. Ten more states also currently have trigger laws: Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, South Dakota, Tennessee, and Utah.
Arkansas had the most restrictive laws on abortion access this year
Arkansas passed 10 acts restricting abortion this year. The Arkansas Unborn Child Protection Act prohibits abortion even in cases of rape and incest. The only exception is when a pregnant person’s life is endangered.
Arkansas passed additional laws to enforce counseling and further documentation prior to abortions, prohibit taxpayer revenues from being used to fund abortions, and prevent hospitals from administering abortions.
States expanding abortion access
Hawaii, New Mexico, Virginia, Colorado, and Washington passed legislation this year expanding abortion access.
New Mexico repealed its trigger law that would have banned abortions if Roe v. Wade was overturned by the Supreme Court.
Virginia revoked a ban preventing coverage of abortion by state insurance.
Hawaii law allows advanced practice registered nurses and physician’s assistants to perform medication-based abortions and surgical abortions to pregnant people in the first trimester of fetal development.
Colorado passed a law in May ensuring access to abortion for rape survivors. The law reverses previous restrictions on where rape survivors could get an abortion if the person was using public health
In Washington, if a college health insurance plan offers maternity care coverage it now has to include coverage for abortion services as well.
And while it doesn’t directly expand abortion access, Connecticut passed a law that prohibits “deceptive advertising” about abortions by crisis pregnancy centers.
The Supreme Court is considering a Mississippi law, too
On December 1, the Supreme Court heard arguments over the legality of Mississippi’s Gestational Age Act, which passed in 2018 but was blocked by two federal courts. The law bans abortions after 15 weeks of pregnancy and has no exception for victims of rape or incest.
Both the Texas and Mississippi cases before the Supreme Court have the potential to alter how abortion is regulated in the US.
For more information on abortion statistics, see USAFacts’ reported abortion metrics and get the facts every week by signing up for our newsletter.
[1] Medical abortion is the use of medically-prescribed drugs to end an undesired pregnancy. The medicine helps remove the fetus and placenta from the uterus, according to the US National Library of Medicine.
[2] States provide different definitions for what constitutes a fetal heartbeat.
