September 21, 1998 98-R-1132

FROM: John Kasprak, Senior Attorney

RE: Abortion Laws

You asked for a comparison of Connecticut's abortion law with those of other states, particularly in regard to restrictions placed on abortions after the first trimester.

SUMMARY

Connecticut is one of four states that have enacted declarations affirmatively protecting a woman's right to choose an abortion. Twenty-two states have passed laws prohibiting the use of certain abortion procedures. These are known as “partial birth abortion” laws. Such laws are the subject of court challenges in a number of these states. Connecticut does not have such a law.

Nineteen states have mandatory waiting periods prohibiting a woman from obtaining an abortion until a certain time period passes. Connecticut does not have this.

Thirty states, including Connecticut, have laws generally requiring that women receive state-mandated information and materials concerning fetal development, prenatal care, and other related information.

Thirty-nine states prohibit minors from obtaining abortions without parental consent or notice. While Connecticut does not have such a law, it does require a minor to receive counseling, before getting an abortion, that includes discussion of the possibility of consulting her parents.

Four states have laws requiring physicians to perform tests to determine viability in certain circumstances. Connecticut does not.

Finally, forty states, Connecticut among them, specifically prohibit abortion after viability under specified circumstances.

COMPARISON OF CONNECTICUT'S ABORTION LAW WITH OTHER STATES

Legislative Declaration

Four states, including Connecticut, have legislative declarations affirmatively protecting a woman's right to choose abortion. The others are Maine, Maryland, and Washington.

Connecticut law provides that “the decision to terminate a pregnancy prior to the viability of the fetus shall be solely that of the pregnant woman in consultation with her physician” (CGS § 19a-602(a), (b)).

Maine's law states, “it is the public policy of the State that the State not restrict a woman's exercise of her private decision to terminate a pregnancy before viability” (Title 22, § 1598(1)). Maryland law provides that the state may not interfere with the decision of a woman to terminate a pregnancy: (1) before the fetus is viable or (2) at any time, if an abortion is necessary to protect the life or health of the woman, or the fetus is affected by genetic defect or serious deformity or abnormality (Health-General, § 20-209).

Washington law declares, “every woman has the fundamental right to choose or refuse to have an abortion…The state may not deny or interfere with a woman's right to choose to have an abortion prior to viability of the fetus, or to protect her life or health “(§ 9.02.100).

Another state, Nevada, has a law that affirmatively protects a woman's right to obtain an abortion during the first 24 weeks of pregnancy (§ 442.250). In November l990, Nevada voters passed a ballot initiative approving this law; as a result, it cannot be amended, repealed, or otherwise changed without a referendum vote.

Partial Birth Abortion

Twenty-two states have enacted partial birth abortion bans. (Connecticut is not one of them.) The laws in seven of these states are in effect, the laws in two of them have been enacted but are not yet in effect, and in three states, the laws are in effect to a limited degree. Federal or state courts have blocked the enforcement of ten of these laws. (OLR Report 98-R-0506 provides more information on this issue and is attached.)

Waiting Periods

Nineteen states have mandatory waiting periods prohibiting a woman from obtaining an abortion until a specified period of time after receiving a state-mandated lecture or materials. Connecticut does not have such a provision. Table 1 following indicates those states with waiting periods and those that are currently enforced.

1. This statute requires that a woman be provided with state-prepared materials at least 24 hours before an abortion, if reasonably possible.

2. A court has ruled that this provision is unconstitutional.

3. A permanent injunction enjoining enforcement of this law is still in effect pending on an appeal of a lawsuit.

4. A court has issued a preliminary injunction prohibiting enforcement of this law.

5. A court has ruled that the penalty provisions of this statute are unconstitutional and severable from the operations sanctions of the law.

6. A woman may not obtain an abortion until the third day after her initial consultation.

7. A court has issued an order prohibiting enforcement of this statute until the state prepared materials are available.

* Source: National. Abortion and Reproductive Rights Action League data, January 1998 - As reported by NCSL (May, 1998).

Informed Consent

Thirty states (Connecticut among them) have abortion -specific informed consent laws which require that women receive state-mandated information and materials on fetal development, prenatal care, and adoption. The other states are Alabama, Arkansas, California, Delaware, Florida, Idaho, Indiana, Kansas, Kentucky, Louisiana, Maine, Massachusetts, Michigan, Minnesota, Missouri, Mississippi, Montana, Nebraska, Nevada, North Dakota, Ohio, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Virginia, and Wisconsin.

A court has issued a temporary restraining order prohibiting enforcement of Florida's law.

Minors' Access to Abortions

Thirty-nine states have laws that prohibit a minor from obtaining an abortion without parental consent or notice. Connecticut does not mandate parental consent or notice but it does require that before obtaining an abortion, a minor must receive counseling that includes discussion of the possibility of consulting her parents.

Currently, thirty of these state laws are enforced. Of the states that currently enforce such laws, two (Idaho, Utah) do not have a judicial or other bypass provision allowing a minor to obtain a court order in lieu of notifying her parents. Four states (Delaware, Maryland, Virginia, and West Virginia) allow a minor to obtain an abortion without parental consent or notice in certain circumstances if a physician or health professional waives the requirement.

Maine permits a minor to obtain an abortion without parental consent or court order if she receives counseling that includes the possibility of involving her parents or another adult family member.

Table 2 following lists those states with parental consent or notice requirements, and the status of the laws.

Table 2: State Laws on Minors' Access to Abortion - Parental Consent or Notice Requirements

Table 2 (Continued)

Source: National Abortion and Reproductive Rights Action League Foundation Report, January, 1998.

Viability Testing

Four states have laws requiring physicians to perform tests to determine viability in certain circumstances (Alabama, Louisiana, Missouri, and Ohio). Courts have issued injunctions prohibiting enforcement of these laws in Louisiana and Ohio.

Post-Viability Bans

Forty states (including Connecticut) and the District of Columbia have laws that specifically prohibit abortion after viability under specified circumstances. Connecticut's law provides that no abortion can be performed after viability unless necessary to preserve the woman's life or health (CGS, § 19a-602(b)). The states without such laws are Alaska, Colorado, Hawaii, Mississippi, New Hampshire, New Jersey, New Mexico, Oregon, Vermont, and West Virginia.

JK:tjo

Attachment: OLR Report 98-R-0506