What Is Abortion in Legal Terms?

Abortion is a highly contested issue in the United States. This isn’t shocking—there are many opinions on the subject. It might surprise you to learn that lawmakers have also found it challenging to define the term. 

We discuss how states define abortion and why it matters. However, laws about reproductive rights are changing quickly. Ask an abortion rights lawyer near you for the latest information. 

Pregnancy and the Medical Definition of Abortion

Before discussing the law, here’s a brief reproductive health refresher:

People assigned female at birth have two ovaries. Every 28 days or so, one of the ovaries releases an egg. If a sperm finds the egg, fertilization occurs. The fertilized egg continues down the fallopian tube to the uterus. Once there, it grows into an embryo and then a fetus. The fetus reaches full term after 36 weeks gestation. 

Unfortunately, not all pregnancies are successful. In an ectopic pregnancy, a fertilized egg implants outside of the uterus, usually in the fallopian tubes. If untreated, this condition can cause death. 

Sometimes, chromosomal irregularities or other factors interfere with normal fetal development. Because it can’t survive, the fetus begins dying. When this happens in the first 20 weeks of pregnancy, doctors call it a spontaneous abortion or miscarriage. In a complete miscarriage, all embryonic or fetal material exits the uterus. In an incomplete miscarriage, some tissues remain. 

For doctors, an induced abortion is a pregnancy ended through medical intervention. Abortion providers typically use two methods. Surgical procedures such as dilation and curettage physically remove the contents of the uterus. Medical abortions use drugs such as mifepristone or misoprostol to achieve the same result. 

How the Law Defines Abortion 

While the medical definition of abortion includes pregnancy loss caused naturally or medically, legal definitions of abortion focus almost exclusively on pregnancies ended through medical intervention. But beyond this focus, legal definitions of abortion are inconsistent. Maryland, New Jersey, and Oregon don’t define the term. 

Yet, abortion laws across America share some common threads. In nearly every state, the health care provider must either:

1. Act with the intent to end a pregnancy that might otherwise continue or
2. Act with the knowledge that their actions will result in the termination of pregnancy

Also, most states’ abortion definitions include both surgical and medical abortions.

Why States’ Definitions of Abortion Matter 

In Roe v. Wade, the U.S. Supreme Court held that abortion was a fundamental right protected by the Constitution. In 2022, another Supreme Court decision, Dobbs v. Jackson Women’s Health, overturned Roe. Because abortion is no longer a constitutionally guaranteed right, states can strictly regulate or even prohibit abortion within their borders. 

Since 2022, several state legislatures have passed abortion restrictions that limit or completely ban abortion. However, many of these states also excluded certain situations from their definitions of abortion.

Exclusions are not exceptions. Some states allow exceptions in cases of rape or incest. But exclusions change the legal status of the abortion procedure. They turn what would otherwise be an illegal abortion into something that the law doesn’t consider to be an abortion at all. Some common exclusions are: 

• Miscarriage
• Ectopic pregnancy 
• Fetal death 
• Contraceptive devices (e.g., intrauterine devices (IUDs)) and related reproductive health care 

Exclusions can help people in states with limited abortion rights get needed care. For example, many of the medications and procedures that address fetal death and miscarriages, especially incomplete miscarriages, are nearly identical to those used in abortions. This is especially true during the first trimester of pregnancy. Without exclusions, these actions could be illegal, and pregnant people would suffer. But three realities must be considered.

First, states use different exclusions. Of the 14 states with complete abortion bans, 13 exclude the removal of dead fetal tissue. Just nine of these 14 state laws include exemptions for ectopic pregnancy. Also, although miscarriages occur in 10-20% of pregnancies, only two states exclude miscarriage from their definitions of abortion. These states are Louisiana and West Virginia.

Abortion exclusions can help people access necessary abortion care in difficult situations. But they’re not always perfectly written or applied. If you have questions about your state’s exclusions, talk to a lawyer near you. 

Get Help Understanding Your State’s Definition of Abortion 

Knowing how your state defines abortion can help you advocate for reproductive health services for yourself or your pregnant partner. But if you were denied abortion services that you think you’re entitled to under your state’s laws, talk to a lawyer immediately. Use the LawInfo directory to find a reproductive rights lawyer near you.