So far in 2020, there have been a number of important wins for abortion rights in the courts. In the U.S. Supreme Court, Louisiana’s unconstitutional admitting privileges law was struck down in June Medical Services v. Russo.1 In the lower courts, a federal district court in Maryland ruled that the U.S. Food and Drug Administration must suspend enforcement of a medically unnecessary restriction on access to medication abortion until 30 days after the end of the COVID-19 public health emergency.2 Also in Maryland, a district court vacated and enjoined a Trump administration rule that would have required separate insurance payments for abortion care and all other health care for people insured by certain plans under the Affordable Care Act.3 And a district court in Georgia struck down the state’s six-week abortion ban, which would have banned abortion at a point before most people even know they are pregnant.4
Despite these important victories, the right to access abortion established in Roe v. Wade5 is still under attack. Moreover, meaningful access to abortion has never been a reality for many people in the United States, especially women of color. The courts are by no means saviors of reproductive rights; the June Medical decision preserved a status quo in which hundreds of abortion restrictions remain in place across the country.6 In Louisiana alone, laws that are still in effect restrict insurance coverage for abortion care, impose medically unnecessary waiting period and biased counseling requirements to access abortion, require parental consent for minors, and more; as a result, abortion access remains out of reach for many state residents.7 Furthermore, in his June Medical concurrence, Chief Justice John Roberts left the door open to upholding future abortion restrictions that come before the court. Conservative courts are already capitalizing on his opinion: On August 7, the 8th U.S. Circuit Court of Appeals cited Roberts’ concurrence as justification to lift an injunction on multiple abortion restrictions in Arkansas.8 The laws ban the most common procedure for second-trimester abortions, require clinics to report to law enforcement the names of minors who have abortions, and treat fetal tissue as criminal evidence. They also require providers to attempt to obtain patients’ full pregnancy-related medical records before providing care and grant rights over fetal remains to both parents of the fetus as well as to the pregnant person’s parents if the patient is a minor. This final law essentially bans abortion outside of a clinic setting and forces patients to notify the other parent of the fetus before an abortion, including in cases of rape.9 The court’s ruling sends the case back to the lower courts and, in the meantime, allows the laws to go into effect.10
As the conservative justices of the Supreme Court lay the groundwork to undermine abortion rights, and as President Donald Trump and Senate Majority Leader Mitch McConnell stack the courts with political ideologues,11 anti-abortion legislators at the state level continue to advance dangerous, medically unnecessary abortion restrictions. These laws disproportionately affect those whose access to abortion care is already most limited, including people of color, young people, people with disabilities, people with low incomes, LGBTQ people, and people in rural areas, among others.12 What’s more, many of these laws were passed and signed during the coronavirus pandemic—a public health crisis that is disproportionately harming many of the same communities whose access to comprehensive reproductive health care, including abortion care, is most threatened, particularly Black, Latinx, and Native American communities, as well as people with disabilities.13
These unrelenting state actions demonstrate the need to move beyond reliance on the courts and to advance proactive policies at the state and federal level that ensure true access to abortion rights. This issue brief breaks down the bans and restrictions that state legislatures have passed this year in their ongoing attempts to undermine or eliminate outright the right to access abortion care. It then highlights efforts to protect and advance abortion rights.
Bans and restrictions
Restrictive abortion laws are nothing new. For decades, states have been passing laws designed to limit access to abortion care in an effort to make the right to abortion virtually meaningless.14 Since 2011 alone, state legislatures have passed more than 400 restrictive laws.15 These relentless efforts to undermine access to essential reproductive health care are especially egregious in the midst of a global public health emergency, when states should have prioritized controlling the coronavirus pandemic—not restricting access to critical health care services.