How abortion laws in America were built, undone, and rebuilt

By Rashmi Pathiyil – Associate – Legal

On the morning of June 24, 2022, a woman in Jackson, Mississippi, could legally obtain an abortion. By afternoon, she could not. Her body had not changed. The medicine did not. A Supreme Court decision had. American abortion law has never been only about medicine. It is a recurring constitutional question about who decides.

Before Roe v. Wade

For much of the nation’s first century, early abortion was lightly regulated. States criminalized it more broadly in the nineteenth century, and by the early twentieth century most banned it except to save the woman’s life. Several states liberalized it in the 1960s, and New York legalized abortion up to 24 weeks in 1970.

Roe v. Wade **and How Planned Parenthood v. Casey Re-worked It**

Roe v. Wade arose from a Texas law banning abortion except to save the pregnant woman’s life. In 1973, the Supreme Court located a constitutional right to choose abortion in the Fourteenth Amendment’s Due Process Clause and its broader privacy jurisprudence. The right was not absolute. Roe’s trimester framework gave states increasing authority as pregnancy progressed, limited before viability and allowing prohibition afterward if exceptions were preserved for the woman’s life or health.

That changed in 1992 with Planned Parenthood of Southeastern Pennsylvania v. Casey. The Court declined to overrule Roe but replaced the trimester system with an “undue burden” standard: before viability, a state could regulate unless the law had the purpose or effect of placing a substantial obstacle in the path of a woman seeking the procedure. Viability remained the dividing line, with more room to regulate before it. The Court upheld Pennsylvania’s informed-consent requirement, 24-hour waiting period, and parental consent provision, but struck down its spousal notification requirement.

Dobbs v. Jackson Women’s Health Organization

For three decades, states tested how far “undue burden” would stretch, from waiting periods to clinic rules known as TRAP laws. In Whole Woman’s Health v. Hellerstedt (2016), the Court struck down two Texas requirements whose burdens outweighed their benefits.

Texas then tried a different strategy. Senate Bill 8, effective September 2021, prohibited most abortions once embryonic cardiac activity could be detected, around six weeks, and let private citizens sue for at least $10,000 in statutory damages from anyone performing or assisting one. Removing state officials from enforcement made the usual pre-enforcement challenge much harder, and Texas access was sharply curtailed while Roe remained formally intact.

Dobbs v. Jackson Women’s Health Organization arose from Mississippi’s ban on most abortions after 15 weeks, irreconcilable with Casey’s viability rule. The vote is worth stating carefully. Six Justices voted to uphold the law, but only five voted to overrule Roe and Casey. Chief Justice Roberts would have upheld the ban without going further. Justice Alito, for the majority, rejected abortion as a constitutionally protected right because the Constitution does not mention it and the asserted right was not “deeply rooted in this Nation’s history and tradition.” Primary authority returned to elected governments.

The map in 2026

Abortion law is now a state-by-state patchwork. As of August 2026, 13 states ban abortion: Alabama, Arkansas, Idaho, Indiana, Kentucky, Louisiana, Mississippi, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, and West Virginia. Exceptions vary, and several exclude rape and incest.[2]

Seven more impose early gestational limits. Florida, Georgia, Iowa, South Carolina, and Wyoming generally prohibit abortion at about six weeks, while Nebraska and North Carolina use a 12-week limit.[3] Others permit abortion later, often to viability, and nine states and Washington, D.C. impose none. The map keeps shifting through legislation, ballot measures, and litigation.[4]

When It Goes to the Voters

Since Dobbs, ballot measures have become a major battleground. Kansas voters in 2022 rejected an amendment allowing greater restrictions, and Ohio approved a constitutional right to reproductive freedom in 2023. In 2024, abortion-rights measures passed in seven states, including Arizona and Missouri, but failed in Florida, Nebraska, and South Dakota. Florida’s drew about 57%, short of the 60% required for passage.[5] The issue returns in November 2026, when Idaho, Nevada, and Virginia consider measures protecting abortion rights and Missouri votes on repealing the amendment it approved in 2024.[6]

The Fight Crosses State Lines

The least settled post-Dobbs question is how far one state can reach into another. As of 2026, twenty three states and Washington, D.C. have some shield-law protection for reproductive health care, and eight expressly protect providers using telehealth to treat patients elsewhere.[7]

That conflict is no longer theoretical. Texas won a $113,000 default judgment against a New York doctor accused of prescribing abortion pills to a Texas patient, and a New York clerk refused to file it under shield law. Louisiana charged the same doctor over pills prescribed to a minor, but New York rejected its extradition request.[8]

Travel raises a different question. No state criminalizes an adult for traveling out of state, but laws involving minors have tested the boundary. Idaho’s “abortion trafficking” statute criminalizes procuring an abortion for an unemancipated minor by recruiting, harboring, or transporting her while concealing it from a parent or guardian. In Matsumoto v. Labrador, the Ninth Circuit held the “recruiting” provision swept in protected speech but let the harboring and transporting prohibitions remain.[9]

Tennessee enacted a similar law. In September 2026, the Sixth Circuit affirmed an injunction against its “recruitment” provision, holding that it violated the First Amendment by restricting protected advocacy about legal out-of-state abortions.[10] The emerging line is narrow: not adult travel, but help given to an unemancipated minor.

Emergencies, and a 1986 Federal Law

Emergency Medical Treatment and Active Labor Act (EMTALA), enacted in 1986 to prevent hospitals from turning away patients who could not pay, became another post-Dobbs battleground. It requires Medicare-participating hospitals to screen patients for emergency medical conditions and provide stabilizing treatment when such conditions exist. Under the Biden administration, the Justice Department argued this duty could require an abortion to prevent serious harm to a pregnant patient, even where state law was more restrictive.[11]

In Moyle v. United States, the Court dismissed the case in June 2024 as improvidently granted, leaving unresolved whether EMTALA preempts conflicting state abortion restrictions and reinstating a lower-court injunction that temporarily protected emergency abortion care in Idaho while the litigation continued.[12] In March 2025, the Justice Department dropped its challenge to Idaho’s law. Separate Texas litigation produced a different lower-court result, and the Court declined review in October 2024.[13] The stabilization duty remains, but when it overrides state law is unresolved.

The Number That Fits Neither Side

The post-Dobbs numbers complicate any simple account of what the bans have accomplished. Guttmacher estimated about 1.126 million clinician-performed abortions in 2025, essentially unchanged from 2024.[14]

What changed was how care was obtained. Among residents of total-ban states, out-of-state travel fell from about 74,000 in 2024 to 62,000 in 2025, while telehealth abortions rose from an estimated 72,000 – 74,000 to about 91,000, many of them provided by clinicians in states with telehealth shield laws.[15]

The bans have reshaped how abortion care is accessed more than they have reduced the national total, with mailed medication now playing a central role. That shift has made shield laws and access to mifepristone major fronts in the next round of litigation.[16]

Where This Goes Next

Dobbs moved the conflict rather than ending it. Three questions will drive what comes next. Will the FDA change the rules governing mifepristone? It is still studying the drug’s safety and will decide whether REMS changes are warranted after that review.[17] Will the Supreme Court take up a conflict over shield laws or interstate enforcement? And how will voters in Idaho, Missouri, Nevada, and Virginia resolve the measures on their November 2026 ballots?[18]

The clearest summary is also an unsatisfying one. There is no longer a single national rule. Access now depends on state law, federal drug regulation, shield laws, and unresolved questions surrounding emergency care. As a result, where a person lives increasingly determines what care is available, how that care is obtained, and which legal regime governs.

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[1] https://www.kff.org/womens-health-policy/key-facts-on-abortion-in-the-united-states

[2] https://www.kff.org/womens-health-policy/abortion-in-the-u-s-dashboard

[3] Id.

[4] Id.

[5] https://www.kff.org/womens-health-policy/the-status-of-abortion-related-state-ballot-initiatives-since-dobbs

[6] https://www.guttmacher.org/fact-sheet/abortion-rights-are-ballot-four-states-2026

[7] https://www.law.ucla.edu/academics/centers/center-reproductive-health-law-and-policy/shield-laws-reproductive-and-gender-affirming-health-care-state-law-guide

[8] https://www.texastribune.org/2025/03/27/new-york-texas-abortion-doctor-pills

[9] https://law.justia.com/cases/federal/appellate-courts/ca9/23-3787/23-3787-2024-12-02.html

[10] https://law.justia.com/cases/federal/appellate-courts/ca6/25-5738/25-5738-2026-09-24.html

[11] https://www.justice.gov/archives/opa/pr/justice-department-sues-idaho-protect-reproductive-rights