Though Roe, Doe and Casey limit the power of states to regulate or ban abortion, nearly every state has some sort of law limiting abortion. About 4/5 ban non-therapeutic abortion in the last three months of pregnancy. Many have parental notice or consent laws for minors, waiting periods, informed consent and statistical reporting requirements for all abortions. Most of these latter types of legislation were ruled unconstitutional during the period form Roe to Thornburg, but have been mostly upheld since the Webster and Casey precedents replaced the "strict scrutiny" standard with the more flexible "undue burden" test. Since Casey, as medical science pushes the line of viability further back, states have been allowed to proscribe abortion earlier than under Roe. Some states have responded by adding viability test requirements. 

State Abortion Law Survey    Ohio: a statutory case study

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Background

Historically, in Anglo-American law, abortion had been criminalized, at least from the point of "quickening" (c.15-18 weeks) and often severely punished. Liberalization of abortion laws in both countries began to occur in the later 1960's.

English Law

Henry Bracton, (1216-1272) "the Father of Common Law," apparently regarded abortion (at least after 5 or six weeks) as homicide and it seems that at early Common Law abortion was a felony, and, therefore, a hanging offense. Later commentators, Coke and Blackstone, held expressly that abortion after quickening was not the crime of murder, but a separate crime (a "grave misprision"). It is unclear whether pre-quickening abortion was still criminalized. The Miscarriage of Woman Act of 1803 ("Lord Ellenborough's Act," 43 Geo. 3, c. 58.), introduced a statutory abortion scheme in England. Pre-quickening abortion was made a felony and post-quickening abortion was a capital crime. In 1837, with abolition of the death penalty, 7 Will. 4 & 1 Vict., c. 85. § 6, the quickening distinction was removed and all abortion was punished as a single felony. In 1861, the Offenses Against the Person Act, 24 & 25 Vict., c. 100, § 59, introduced a replacement statutory scheme, where, as before, all abortions were felonies. In 1929, the Infant Life (Preservation) Act, 19 & 20 Geo. 5, c. 34, was passed. It supplemented the OAPA and included a defense for bona fide efforts to save the mother's life. A common law health exception to the OAPA was introduced in 1938 by Rex v. Bourne, [1939] 1 K. B. 687, 3 All E. R. 615 (1938). Finally, the Abortion Act of 1967, while maintaining the general prohibition of abortion, introduced broad exceptions for genetic defects, and the mental and physical heath of the mother. Under this law, abortion is generally permitted if a pregnancy is unwanted, as childbirth is seen as more of a health threat than early abortion. However, this law does not apply uniformly throughout the U.K., e.g. Man and Jersey.

American Law

In the United States, before general codification of law became commonplace in the 19th century, criminal law was based on the Common Law inherited from England.  Therefore, states followed the law as it existed in England.  (Exactly what this was could vary depending on when the state is said to have "received" the common law.)

As states and territories slowly began to opt for statutory criminal law over common law, abortion laws were inevitably included. Most of these took after the English scheme of 1803. Connecticut was the first, in 1821, passing a law making post-quickening abortion a felony. New York followed in 1828 with a statute making a felony of post-quickening abortion and a misdemeanor of pre-quickening abortion. Through the 1830's, 40's and 50's this process continued.

In the mid 19th Century, a movement began to tighten abortion regulation. Spearheaded by the medical community, by the late 1860's this movement had succeeded in establishing uniform abortion prohibition in England and throughout most of the United States. Outside of necessity to preserve the life of the mother, abortion was prohibited. These laws, or similar successor provisions, would remain in place in all fifty states until the 1960's.

During the 1960's and early 70's many states liberalized their abortion laws to some degree. Generally, this meant allowing abortion in cases of rape and incest, or for various health reasons. This was largely due to the influence of the 1962, Model Penal Code. Its inclusion of "liberalized" features was a watershed for the loosening of abortion regulations, which had, until this time, usually banned all abortions but those to save the mother's life. (However, Roe v. Wade would ultimately strike down these MPC-style laws in 1973.)

In 1967, Colorado was the first such state to adopt an MPC-type statutory scheme.

In 1970, New York (followed by Alaska, Hawaii and Washington) introduced the first laws to allow abortion "on demand." New York's modification of Penal Law §125.00 made elective abortions performed by a licensed physician completely legal for the first 24 weeks and homicide thereafter. The state has also added reporting and live-birth regulations in Article 41 of the Public Health Law. This statute's constitutionality was upheld by the New York Court of Appeals (5-2) in Byrn v. New York City Health & Hospitals Corp., 31 N.Y.2d 194, 286 N.Y.2d 194 (1972).

In 1973, Roe v. Wade struck down the abortion laws of most states. Under Roe, no state could regulate abortion during the first trimester of pregnancy. Regulations directly related to maternal health would be allowed during the second trimester. Post-viability abortions, if regulated, would be subject to the mental and physical health exceptions set out in Doe v. Bolton.

After 1973, American abortion law is substantially controlled by the Supreme Court of the United States. As some states pass new laws they are usually subjected to review by the Court, which decides whether they comport with the federal Constitution or not. (See Constitutional Law.)

In brief, current Supreme Court rulings allow the individual states to regulate abortion in the following ways:

• Banning elective abortions after viability;
• Requiring parental consent or notice before a minor can obtain an abortion, although usually a "judicial bypass" option must be made available;
• Requiring waiting periods before an abortion may be performed.   (Usually 24-48 hours.);
• Requiring informed consent or counseling be obtained before an abortion. (States often mandate what information must be presented.);
• Requiring certain kinds of record keeping;

Each state addresses these matters independently and what laws are passed or enforced is a legislative decision, and, more broadly speaking, a function of the political system.  

Recently some states have passed bans on "Partial-birth" Abortions, and it is likely more will consider it in the future. However, these procedural bans have not faired well in the courts..

Compare Abortion Law in Canada.

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