Abortion Up Until Birth: State Laws, Exceptions, and Federal Rules

Abortion up until birth is legal in nine states and the District of Columbia, which set no gestational time limit on the procedure. There is no federal law that either permits or prohibits it, so the answer depends entirely on the state.¹ In every other state, some gestational limit applies, ranging from a total ban at conception to a cutoff at viability. In practice, abortions performed at 21 weeks or later account for about 1% of all procedures nationwide, and those in the third trimester are a small fraction of that.²

Why the Answer Depends on the State

The Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization overruled Roe v. Wade and Planned Parenthood v. Casey, holding that the Constitution “does not confer a right to abortion” and returning regulatory authority “to the people and their elected representatives.”³ State laws are now judged under rational-basis review, the most lenient constitutional standard, meaning a state only needs a rational reason for whatever line it draws.

The old viability threshold, generally understood as somewhere around 24 weeks of gestation, no longer has any special federal constitutional status. A state can ban abortion before viability, at viability, after viability, or not at all. Some states still use viability as their cutoff, either because pre-Dobbs laws remain on the books or because legislatures chose to draw the line there when passing new restrictions.

Which States Allow Abortion With No Gestational Limit

As of early 2026, nine states and the District of Columbia impose no gestational time limit on abortion. In those jurisdictions, the procedure is technically legal at any stage of pregnancy, including the third trimester and up to birth.¹

The rest of the country falls along a wide spectrum:

Thirteen states prohibit abortion from conception or the earliest detectable stages, with only narrow exceptions. These bans took effect through trigger laws, pre-Roe statutes, or new legislation passed after Dobbs.
Eight states ban abortion at or before 18 weeks of gestation, typically setting the line at 6, 12, or 15 weeks.
A number of states restrict abortion at the point of viability, generally between 24 and 26 weeks, while allowing exceptions for medical emergencies.¹

The category a state falls into can be misleading without context. A state with no gestational limit may still regulate who can perform the procedure, where it can take place, and what documentation is required. Very few providers perform third-trimester abortions even in permissive states, and costs escalate significantly at that stage due to the medical complexity involved and the specialized facilities required.

How Often Late-Pregnancy Abortions Actually Happen

The most recent CDC surveillance data, covering 2022, shows that the vast majority of abortions happen early in pregnancy. Among reporting areas, 92.8% of abortions occurred at or before 13 weeks of gestation. Another 6.1% took place between 14 and 20 weeks. Only 1.1% were performed at 21 weeks or later.²

That 1.1% figure covers everything from 21 weeks onward. True third-trimester abortions, beginning around 27 weeks, represent a fraction of that fraction. Research on patients who obtain these procedures identifies two common pathways: the patient received new medical information late in the pregnancy, such as a diagnosis of a serious fetal condition, or the patient faced barriers such as cost, difficulty finding a provider, and logistical obstacles that delayed care until the third trimester.⁴

The American Medical Association’s policy recommends that third-trimester abortions be limited to cases involving serious fetal conditions incompatible with life. The AMA notes that when a pregnancy threatens the mother’s health in the third trimester, delivery rather than abortion can typically address the emergency without sacrificing the fetus, given its near-certain independent viability at that stage.⁵

Life and Health Exceptions in States That Restrict Abortion

Every state law currently banning or restricting abortion includes an exception when continuing the pregnancy would kill the patient. Invoking it requires a physician to determine, based on medical judgment, that the pregnancy poses a life-threatening risk, and to document the clinical basis for that conclusion.

Beyond the life exception, many states also allow abortion when continuing the pregnancy would cause serious, irreversible physical harm. The scope varies enormously. Some states cover only impairment of a “major bodily function” and explicitly exclude psychological or emotional conditions. Others use broader language that may include the patient’s mental health.⁶

This is where most legal disputes actually play out. Real medical emergencies rarely present as clear-cut. A patient with severe preeclampsia or whose water breaks dangerously early may face escalating risk of organ damage, sepsis, or loss of fertility without facing imminent death at the exact moment a decision must be made. Physicians in restrictive states have reported delaying intervention until the patient deteriorates enough to meet the statutory standard, which medical organizations have called incompatible with standard-of-care medicine.

Federal Laws That Apply Everywhere

EMTALA and Emergency Rooms

The Emergency Medical Treatment and Labor Act requires any hospital that accepts Medicare funding to stabilize patients experiencing medical emergencies. In states with strict bans, federal law may require a hospital to provide an abortion to stabilize a patient while state law prohibits it.

The Supreme Court confronted this conflict in Moyle v. United States (2024), involving a state law that banned abortion except to prevent death but made no exception for preventing serious health consequences like loss of fertility. The Court identified a gap: when continuing a pregnancy does not put a woman’s life in danger but still risks grave health consequences, federal law requires the hospital to offer an abortion that state law prohibits. The Court ultimately dismissed the case without resolving the broader question, vacating its stay and allowing a lower court injunction that blocks enforcement of the state ban when termination is needed to prevent serious health harm.⁷ The litigation continues, and whether EMTALA preempts state abortion bans in emergencies remains unsettled nationally.

The Born-Alive Infants Protection Act

A separate federal law addresses what happens if a living infant is delivered during an attempted abortion. The Born-Alive Infants Protection Act, codified at 1 U.S.C. § 8, defines any infant who is born alive, at any stage of development, as a “person” for purposes of federal law. Being “born alive” means showing any sign of life after complete expulsion or extraction from the mother, including breathing, a heartbeat, pulsation of the umbilical cord, or voluntary muscle movement.⁸ Once an infant meets this definition, the full protections of federal law apply regardless of the circumstances of the delivery. The statute does not create a specific criminal penalty on its own, but it establishes the legal personhood that triggers protections under other federal laws. Several states have passed their own born-alive protection statutes with explicit criminal penalties for providers who fail to provide medical care to an infant born during an abortion procedure.

Traveling to Another State

The constitutional right to interstate travel is well established, and in his Dobbs concurrence, Justice Kavanaugh cited it as a bar on states preventing residents from traveling elsewhere for an abortion.³ At least one state has since passed a law attempting to restrict interstate travel for abortion services, though it has not yet been tested in court. No state has successfully enforced such a restriction.

Crossing state lines does not eliminate legal complexity. The destination state’s own rules still apply, including any gestational limits, waiting periods, counseling requirements, and parental involvement laws for minors. For patients seeking care late in pregnancy, the number of providers who perform these procedures is extremely small even in states without gestational limits.

1
Guttmacher Institute. State Bans on Abortion Throughout Pregnancy
2
Centers for Disease Control and Prevention. Abortion Surveillance — United States, 2022
3
Supreme Court of the United States. Dobbs v. Jackson Women’s Health Organization
4
National Center for Biotechnology Information. Is Third-Trimester Abortion Exceptional? Two Pathways to Abortion After 24 Weeks of Pregnancy in the United States
5
American Medical Association. AMA Policy H-5.982 Late-Term Pregnancy Termination Techniques
6
Guttmacher Institute. State Bans on Abortion Throughout Pregnancy – Section: Definitions
7
Supreme Court of the United States. Moyle v. United States
8
Office of the Law Revision Counsel. United States Code Title 1 – Section 8