Reproductive rights supporters marched in Phoenix to mark Roe v. Wade’s anniversary in January 2024. Arizona voters approved an amendment restoring abortion access up to fetal viability in the fall. (Gloria Rebecca Gomez/Arizona Mirror)
Erika Christensen decided to become a patient advocate for abortion later in pregnancy after she had to travel from New York to Colorado to get a third-trimester abortion.
Christensen found out her wanted pregnancy wasn’t viable around 30 weeks. At that time in 2016, New York banned abortion after 24 weeks of pregnancy, and only allowed abortions after that limit to save a patient’s life.
She and her husband were able to borrow thousands of dollars from her mother and put last-minute travel funds on a credit card to access abortion care across the country, Christensen told States Newsroom.
“At every stage, I realized how many pieces had to be in the perfect place for me to be able to do that, to be able to get this urgent health care that I desperately needed,” she said.
When she and her husband returned home to New York, a lawyer at the state American Civil Liberties Union affiliate reached out and asked if they wanted to be advocates. They led a grassroots effort to get legislation passed in 2019 that protected abortions after 24 weeks for fetal abnormalities and to preserve a patient’s health.
The Reproductive Health Act also decriminalized abortion later in pregnancy and allowed health care providers besides physicians to perform abortions. Former Democratic Gov. Andrew Cuomo signed the bill into law on Jan. 22, 2019, the anniversary of the U.S. Supreme Court’s Roe v. Wade ruling that protected the right to an abortion nationally.
This year would have marked the 52nd anniversary of Roe, which ensured abortion rights until fetal viability, when a fetus can survive outside the womb — generally thought to be around 24 weeks. Only about 1% of all abortions in the United States happen after that point, typically for medical reasons, research shows.
But a conservative-majority bench overturned Roe nearly three years ago, upending abortion access across the nation with the Dobbs v. Jackson Women’s Health Organization decision. States rolled out a patchwork of varied health care restrictions.
Twelve states ban most abortions today, while voters in 10 approved ballot measures enshrining the right into state constitutions. Most of the states with constitutional protections have fetal viability limits.
“Advocates, activists and folks in the movement have different opinions about how we reach the ideal policy on reproductive rights and justice, and initiatives and laws may vary from state to state depending on the political realities that we see,” said Ashley All, president of Kansas Coalition for Common Sense, who has worked on several successful abortion-rights initiatives.
First abortion-related bill pushed in GOP-led Congress blocked by Senate Democrats
Some within the reproductive rights movement argue that gestational bans on abortion later in pregnancy cause patients harm, and say that the protections of Roe — the 1973 Supreme Court said abortion is a privacy right based on the due process clause of the 14th Amendment — are insufficient.
Renee Bracey Sherman is the founder of the nonprofit WeTestify, a nonprofit devoted to evaluating and shifting the narrative around abortion.
“Allowing the public to vote on personal medical decisions is wrong and completely ridiculous,” she said. “But somehow it’s acceptable with abortion, and then doubly acceptable when it comes to later abortion. We have a population that does not understand how anatomy works, how pregnancy works, how abortions happen, and why people need later abortions.”
In pregnancy, “viability” isn’t straightforward and can be used in more than one way. The word can reference whether a pregnancy is expected to develop normally or if it could lead to a miscarriage, according to the American College of Obstetrics and Gynecology. And fetal viability is the point in pregnancy when a fetus is able to survive outside of the womb. Premature babies have a 42% to 59% chance of survival at 24 weeks, according to ACOG and the Society for Maternal-Fetal Medicine.
Many states only allow abortion after 24 weeks in cases of fetal anomalies or if the patient’s life or health is at risk. Alaska, Colorado, New Jersey, New Mexico, Oregon, Vermont and Washington, D.C., have no fetal viability limits on abortion.
ACOG, the national OB-GYN organization, “strongly opposes policy makers defining viability or using viability as a basis to limit access to evidence-based care” and said the decision to terminate a pregnancy should be between patients and medical providers.
Viability language in policymaking stemmed from the Roe decision in 1973, according to Adrienne Ramcharan, assistant director of state policy at Physicians for Reproductive Health and MiQuel Davies, the former public policy director at the organization.
“While this framing was built into the law, researchers and medical providers who care for pregnant people recognize that viability is not a set point in time,” Ramcharan and Davies wrote in August 2024. “Instead, it occurs along a continuum shaped by an individual’s medical history, access to medical care, and demographic characteristics among other things.”
Later abortion care is criminalized and stigmatized, Christensen said, causing the cost of care to go up. Plus, abortion providers willing to offer the procedure later in pregnancy are scarce.
“I have the benefit of having directly experienced a viability ban and knowing in my core how unjust it was, how my humanity was erased, my dignity was erased,” Christensen said.
She is the co-author of a memo published last year titled Abortion Justice Now. The authors wrote that they reject efforts to restore Roe-era limits into abortion policy.
“Gestational and viability limits will disproportionately impact the most marginalized among us, either denying them critical care or pulling families toward financial instability,” they wrote. “These limits will result in an inequitable ability to exercise rights, allow for criminalization in pregnancy, and ultimately reinforce the dangerous assertion that the government has any role in regulating a pregnant person’s body.”
Reproductive rights and justice groups plan for Trump’s return
Abortion opponents, including doctors, sometimes hinge their argument on the concept of fetal viability.
“I think, certainly, beyond the point where a child can survive outside of his or her mother, there would never be a reason you would need to intentionally end that child’s life,” Dr. Christina Francis, chief executive officer at the American Association of Pro-Life Obstetricians and Gynecologists, told lawmakers on a U.S. Senate committee in June, States Newsroom reported.
“You would simply deliver that baby,” Francis said. “You’d take care of mom and you’d take care of baby in an appropriate way.
Patients may seek abortion after fetal viability for several reasons: They receive a fetal fatal diagnosis later in pregnancy, giving birth could risk their life or health, they couldn’t access or afford an abortion earlier, or they didn’t know they were pregnant, according to ACOG.
Polling shows that Americans support abortion in most cases, but not necessarily after fetal viability. A June 2023 poll from Gallup found that 69% of respondents said abortion should be legal in the first three months of pregnancy, while 37% said it should be legal in the second trimester and 22% in the third.
But the nonpartisan public opinion research firm PerryUndem found last year that most public polling on abortion later in pregnancy lacks context. Of those who heard stories about women with complications later in pregnancy who needed to travel out-of-state for abortions, 69% said abortion should be legal in all cases.
YOU MAKE OUR WORK POSSIBLE.