You hear people say the term “third rail” all the time in politics, usually in reference to an issue that is too volatile — too charged — to touch. For decades, abortion later in pregnancy has been one of those issues. As recently as four years ago, a proposal to loosen restrictions on third-trimester abortions went down in flames in Virginia after Republicans accused Democratic lawmakers of advocating for infanticide — an attack that was misleading but effective.
But the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade, has changed the current running through the abortion debate. And now Democratic legislators may have new opportunities to try and expand abortion rights — including abortions in the late second and early third trimester of pregnancy. Last week, Maine’s Democratic governor, Janet Mills, announced a new package of legislation designed to make it easier to get an abortion, including a measure that would expand women’s ability to get abortions after a fetus can live outside the womb. The proposed bill doesn’t remove the ban, but it would loosen the restriction by giving doctors more discretion to recommend a post-viability abortion. In Minnesota, some lawmakers are working to repeal a similar ban, which many abortion providers still follow even though it was paused by a court more than 40 years ago. There is also a debate in California about whether the state’s newly passed constitutional protection for reproductive rights overrides the state’s ban on abortion after viability.
But has the abortion debate changed enough for Democratic legislators to loosen or remove bans on third-trimester abortions without getting burned? Abortion in the late second or early third trimester is still unpopular, but in a limited form, it’s less unpopular than a full ban — which may remove some risk for Democratic lawmakers who want to ease access to abortion after viability. And a rising share of Democrats want abortion to be legal in all cases, which could give blue-state lawmakers even more of a reason to relax restrictions.
The number that captures the impact of the Dobbs decision | FiveThirtyEight
Abortions after the point of fetal viability — which generally happens around 24 weeks of pregnancy — are often restricted no matter which party runs a state. Eleven states that are fully controlled by Democrats still ban abortion after 24 weeks of pregnancy, with some exceptions.1 Often, it’s the scope of the exceptions that are key: Only four clinics in the country will perform abortions in all three trimesters of pregnancy, and two operate in Maryland, which bans abortion after viability but allows exceptions for fetal abnormalities and risks to mental and physical health. Abortion-rights advocates and legal experts argue that some states’ exceptions are too limited and give too little deference to medical opinion. In fact, lawmakers said that the proposed Maine bill will broaden the state’s exception to explicitly give doctors more leeway, citing the case of a woman who had to leave the state for an abortion because of a rare and deadly fetal abnormality.
Viability became a legally important dividing line after the Supreme Court’s 1992 decision in Planned Parenthood v. Casey, when the justices ruled that because of changes in medical care, states were now permitted to ban abortion after viability. In the lead-up to the decision and in its aftermath, some Democratic-controlled states passed laws that essentially codified the terms of that decision. It was an attempt to ensure that if the Supreme Court eventually reversed course, abortion would still remain legal in those states — but it also possibly contributed to the stigmatization of abortions later in pregnancy.
In general, Americans do not know much about abortion, but the gap between belief and reality is particularly large when it comes to later abortion. Kaiser Family Foundation data from 2020 found that only a small share of Americans correctly identified that less than 5 percent of abortions happen after 20 weeks of pregnancy — in fact, that year, the share was about 1 percent of abortions, according to the Centers for Disease Control and Prevention. Unlike earlier abortions, which happen for a wide range of reasons, many abortions in the late second or early third trimester are prompted by medical issues like fetal abnormalities or risks to a pregnant person’s health. Medical organizations have been clear that abortions very late in pregnancy simply do not happen, for legal and ethical reasons, and a study conducted in 2021 by Ipsos found that Americans who are more knowledgeable about fetal development and pregnancy are also more likely than less knowledgeable people to support legal abortion. But anti-abortion advocates and Republican politicians — including former President Donald Trump — have used the existence of post-viability abortion to claim that the abortion-rights movement is dangerously extreme.
When most abortions were constitutionally protected, it may have been easier to argue that it was abortion-rights advocates — not their opponents — who were trying to push abortion laws out of the mainstream. Support for legal abortion generally declines as a pregnancy goes on, although as is usually the case with public opinion on abortion, perspectives are more nuanced than they appear. A 2022 poll from the Pew Research Center found that 44 percent of Americans who said abortion should be illegal after 24 weeks of pregnancy agreed that abortion should be available if a woman’s life was threatened or the baby would be born with severe disabilities, and 48 percent said “it depends.” This is perhaps why some states — including New Hampshire last year — have added fetal abnormalities to their post-viability exceptions.
Mary Ziegler, a law professor at the University of California-Davis who studies abortion, said that anti-abortion advocates were able to use later abortion as an effective political tool because while Roe was in place, Americans were generally unaware of how far in the other direction those advocates wanted to go. “The argument was, ‘Abortion-rights proponents are extreme because they’re not content with the protections we already have,’” Ziegler said. “Now it’s a lot harder to argue that the people who are opposed to abortion are the ones in the middle.” Moreover, Democrats have grown more supportive of legal abortion over the past few years. According to tracking polling by Civiqs,2 a solid majority (58 percent) of Democrats think abortion should be legal in all cases, up from 50 percent only two years ago.
Simply loosening restrictions on later abortion might not make the procedure easier to get, though. There are only four clinics in the country that will currently perform an abortion in the third trimester, and hospitals’ policies on later abortion are opaque. Three of those clinics are in the Washington, D.C., area and the fourth is in Colorado, which means that to reach one, most women will have to travel a long distance. And later abortions are often extremely expensive. They’re only sometimes covered by insurance, and the bill for a third-trimester procedure — which can take up to three days — can easily run to thousands of dollars.
Changes in state law could allow more abortion providers to offer later abortions. Whether they actually would, though, is a separate question. As Dr. Diane Horvath and Morgan Nuzzo, a doctor and nurse-midwife team, discovered when they set out to open an all-trimester abortion clinic in Maryland just over a year ago, finding a space for a new clinic and securing the funding to open is not an easy task. Clinics in states like Illinois, Kansas and North Carolina, which are closer to the region of the country where abortion is largely banned, have struggled with long wait times since the Dobbs decision, due to a flood of out-of-state patients. Adding later abortion procedures could be a significant burden on clinics that are already strained. Changing the law could also affect hospitals’ willingness to perform later abortions, but those shifts is hard to track.
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More people might end up seeking later abortions as the effects of Dobbs add up. A few months after the Supreme Court’s ruling, some abortion providers were already reporting an uptick in second-trimester abortion patients — people who might have gotten an earlier abortion if not for the difficulty in getting an appointment, or the time and money involved in leaving the state to get an abortion legally. “If we see people facing longer delays, there will be more people who need this care that really has been quite rare and hard to obtain until now,” said Elizabeth Nash, a principal policy associate at the Guttmacher Institute, a research organization that supports abortion rights. “And that can’t happen without more providers who are willing to offer abortion later in pregnancy.”
So the political fate of the bills in Maine and Minnesota is important not just because it would be a significant legal change in regions where abortion is mostly banned after viability, but also because it’s an early signal of whether the politics of later abortion are changing. It may not be an easy process. For instance, in the aftermath of Dobbs, Massachusetts Democrats were split over whether to expand an exception in the state’s later-abortion ban, and the proposed change was watered down because of fears that the state’s Republican governor would veto it. But the outcome of the 2022 midterms — which gave Democrats control of additional state legislatures — could end up emboldening left-leaning state legislators.
“Progressive states generally are recognizing that there are gaps in [abortion] access in their states, and they’re looking for ways to fill those gaps,” Nash said. “We may be hearing more from other states on this soon.”
Where Americans voted to protect abortion rights in the midterms | FiveThirtyEight
Those states are California, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Michigan, New York, Rhode Island and Washington. In addition to those, Minnesota has a Democratic trifecta and a viability ban, but the law was blocked by a court in 1976. Even so, abortion providers in the state largely act as if the ban is in effect, for fear of legal risks. Because of this, we have not included the state in the topline count.
Included in this category are Democratic-controlled states that ban abortion after explicitly 24 weeks of pregnancy, states that ban abortion after viability and states with third-trimester abortion bans.
As of Jan. 24 at 5 p.m. Eastern.
Amelia Thomson-DeVeaux is a senior writer for FiveThirtyEight. @ameliatd
Abortion (141 posts)