Abortion Bans: In the States

Abortion bans are a deceptive and unconstitutional attempt to prohibit abortions as early as 13 weeks in pregnancy. These bans dangerously interfere with the doctor-patient relationship, banning abortions that doctors say are safe and among the best to protect women’s health. Prior to Gonzales v. Carhart (“Carhart II”). courts – including the United States Supreme Court in Stenberg v. Carhart (“Carhart”) – considered these bans, and repeatedly and consistently struck them down for two reasons:

1. The bans’ broad language prohibits abortions as early as 13 weeks in pregnancy, and
2. The bans’ lack of health exception impermissibly endangers women’s health.

However, in Carhart II, the Supreme Court upheld the federal Partial-Birth Abortion Ban Act of 2003 despite its lack of a health exception. The Court concluded that the Act was not unconstitutionally vague because it defined the overt act and intent necessary for criminal liability. The Court also held that a health exception was unnecessary because of medical uncertainty over whether “the barred procedure is ever necessary to preserve a woman’s health” and because of the availability of other abortion procedures. The Court left open the option of an as-applied constitutional challenge. (The ACLU’s more in-depth discussion of the Supreme Court’s decision in Carhart II upholding the federal ban is available online at https://www.aclu.org/reproductive-freedom/case-summaries-us-supreme-court-upholds-federal-ban-abortion-methods.) Since 1995, abortion bans have been enacted in more than half the states and challenged in courts throughout the country. To date:

• Thirty-one states have enacted one or more bans. (1)
• Bans have been challenged and struck down in twenty states.(2)
• In eight states, bans were not challenged in court but are either unenforceable under Carhart II for vagueness or are limited to abortions performed after viability.(3)
• In one state (OH), courts have upheld a ban on the ground that it did not reach the most common abortion procedures and contained a health exception, albeit a narrow one.
• In two states in which bans were challenged (GA, MT), the parties agreed, and courts ordered, that the bans would be limited to post-viability abortions.
• In the four states (MI, MO, UT, VA) in which bans were challenged after Carhart II, one court (in MI) struck the ban as unconstitutional. In the other three states (MO, UT, VA), bans have been upheld. Michigan, like several other states (4), has since passed a law mirroring the federal ban. Those laws are in effect.
• In the three states in which such abortion bans have come up as ballot initiatives (CO, ME, and WA), voters rejected them.

Below is a summary of the court decisions in cases challenging state bans.

Alabama: Summit Medical Associates v. Siegelman, 130 F. Supp. 2d 1307 (M.D. Ala. 2001).

Following the decision in Carhart, a federal district court declared the Alabama ban unconstitutional and permanently enjoined its enforcement. The court held that the Alabama statute, like the Nebraska statute struck down in Carhart, was unconstitutional for lack of a health exception and because it imposed an undue burden on a woman’s right to abortion. Specifically, the court found that the Alabama statute would prohibit D&E [dilation and evacuation] abortions, the “most commonly used method for pre-viability second trimester abortions.” The state did not appeal the court’s ruling.

Alaska: Planned Parenthood of Alaska, Inc. v. State, No. 3AN-97-6019 CIV (Alaska Super. Ct. Mar. 13, 1998), appeal withdrawn, No. S-08610 (Alaska June 29, 2000).

A state trial court permanently enjoined Alaska’s “partial-birth abortion” ban, holding that it violated the state constitution. The court declared the law void for vagueness, finding the term “partial-birth abortion” so “susceptible to different interpretations” that it could “apply not only to second-trimester abortions but to some first-trimester abortions as well.” Because the law could thus function as a ban on “abortion in general,” the court concluded that it infringed the state constitutional right of privacy. Following the Carhart decision, the Alaska Attorney General withdrew the State’s appeal to the Supreme Court of Alaska.

Arizona: Planned Parenthood of Southern Arizona, Inc. v. Woods, 982 F. Supp. 1369 (D. Ariz. 1997), appeal withdrawn, No. 97-17377 (9th Cir. Feb. 26, 1999).

A federal district court permanently enjoined Arizona’s “partial-birth abortion” ban. The court held the ban was unconstitutionally vague because it was “susceptible to different interpretations” and therefore failed to give physicians fair warning of what conduct it proscribed. The court also held that the ban constituted an “undue burden” on the right to have an abortion because, in prohibiting the safest, most common methods of abortion after the first trimester, the ban would force women from safer to riskier procedures. The State did not appeal the district court’s ruling.

Arkansas: Little Rock Family Planning Services P.A. v. Jegley, No. LR-C-97-581 (E.D. Ark. Nov. 13, 1998), affirmed, 192 F.3d 794 (8th Cir. 1999).

Affirming a federal trial court’s permanent injunction of Arkansas’s ban, the U.S. Court of Appeals for the Eighth Circuit found that the act would impermissibly ban “both the D&E procedure and the suction-curettage procedure,” the two most common abortion methods. The appellate court held that such a ban was unconstitutionally “overbroad and places an undue burden on the right of a woman to decide whether to have an abortion.” The State did not appeal the Eighth Circuit’s ruling.

Florida: A Choice for Women v. Butterworth, 54 F. Supp. 2d 1148 (S.D. Fla. 1998), appeal withdrawn, No. 99-4002 (11th Cir. Mar. 2, 1999); A Choice for Women v. Butterworth, No. 00-1820-CIV-LENARD/TURNFOFF, 2000 WL 34403086 (S.D. Fla. July 11, 2000).

A federal district court permanently enjoined Florida’s first attempt, in 1998, to enforce a so-called “a partial-birth abortion” ban. The court rejected the argument that the law targeted a single, discrete procedure. Rather, the court held, the law’s definition contained “broad and amorphous language” that could cover virtually all abortions performed in the second trimester of pregnancy. Thus, the court ruled that the ban violated “a woman’s right to choose to have an abortion prior to the viability of the fetus.” The court also held the ban unconstitutional on the ground that it “contains no health exception and only a qualified life exception.”

Despite the court’s clear ruling that such a ban was unconstitutional, Florida enacted a second, differently worded ban on May 25, 2000. Following the decision in Carhart, a federal judge held the second ban unconstitutional and issued an injunction permanently blocking its enforcement. The court held that the act’s “sweeping prohibitions[s] … included D&E and D&X [dilation and extraction], places an undue burden and a substantial obstacle on a woman’s right” to choose a pre-viability abortion. Moreover, the court concluded that the ban was unconstitutional because it lacked a health exception. The State did not appeal the court’s decision.

Georgia: Midtown Hospital v. Miller, 36 F. Supp. 2d 1360 (N.D. GA. 1998).

A federal district court issued a preliminary injunction restricting enforcement of Georgia’s ban to post-viability abortions. The parties then settled the case by agreeing that the law would apply only to a narrowly defined procedure when used after fetal viability. The court issued an order — called a consent decree — that made the agreement binding.

Idaho: Weyhrich v. Lance, No. CV98-0117-S-BLW, 1999 WL 33884457 (D. Idaho Oct. 12, 1999)

A federal district court issued a permanent injunction against enforcement of Idaho’s “partial-birth abortion” ban. Finding the Language of the ban would potentially encompass “suction curettage, D&E, and induction procedures,” the court held the ban unconstitutionally imposed an undue burden on the right to reproductive choice. The court also held that the law was unconstitutional because 1) its terms were “so hopelessly imprecise that physicians simply cannot know what conduct it bans,” 2) the ban lacked an exception to protect women’s health, and 3) it lacked an adequate exception to protect their lives.

Illinois: Hope Clinic v. Ryan, 995 F. Supp. 847 (N.D. Ill. 1998), reversed, 195 F.3d 857 (7th Cir. 1999) (en banc), stay denied, 197 F.3d 876 (7th Cir. 1999), vacated and remanded, 530 U.S. 1271 (2000), 249 F.3d 603 (7th Cir. 2001).

A federal district court issued a permanent injunction preventing enforcement of Illinois’s “partial-birth abortion” ban. Finding that the law potentially banned the most common and safest abortion procedures used throughout pregnancy, the trial court held the law was unconstitutional for violating the right to reproductive choice. The court also held the law was unconstitutionally vague because the “statute, laden with undefined terms, fails to define with any certainty the conduct that is proscribed.”

The State appealed to the U.S. Court of Appeals for the Seventh Circuit. Initially, the court upheld the ban on the condition that lower courts construe the ban narrowly and limit its application. Following the decision in Carhart, however, the Seventh Circuit held the Illinois ban was unconstitutional and affirmed the lower court’s permanent injunction preventing enforcement. In the same decision, the court also held the Wisconsin ban unconstitutional and permanently enjoined in.

Iowa: Planned Parenthood of Greater Iowa, Inc. v. Miller, 30 F. Supp. 2d 1157 (S.D. Iowa 1998), affirmed, 195 F.3d 386 (8th Cir. 1999), cert. denied, 120 S. Ct. 2801 (2000).

The U.S. Court of Appeals for the Eighth Circuit affirmed a federal district court’s ruling that permanently enjoined Iowa’s “partial-birth abortion” ban. The Eighth Circuit held that the ban prohibits “the D&E procedure, and, in some circumstances, the suction-curettage procedure as well.” Finding that these “are two of the most commonly used abortion procedures,” the court held that the ban “places an undue burden on women seeking abortions.” The U.S. Supreme Court declined to review the case.

Kentucky: Eubanks v. Stengel, 28 F. Supp. 2d 1024 (W.D. Ky. 1998), affirmed, 224 F.3d 576 (6th Cir. 2000).

Following the decision in Carhart, the U.S. Court of Appeals for the Sixth Circuit affirmed the lower court’s ruling that permanently enjoined Kentucky’s “partial-birth abortion” ban. In its brief opinion, the court concluded that “[Carhart] is controlling in this case, and that the district court was correct when it held that the Kentucky statute is unconstitutional.” Emphasizing that the broad scope of the ban created a “quagmire of constitutional infirmity,” the lower court had held that by “banning a set of actions and results that embrace common and otherwise legal abortion procedures,” the law placed “an undue burden upon a large fraction of those women whom the Act will affect.”

Louisiana: Causeway Medical Suite v. Foster, 43 F. Supp. 2d 604 (E.D. La. 1999), affirmed, 221 F.3d 811 (5th Cir. 2000).

Following the decision in Carhart, the U.S. Court of Appeals for the Fifth Circuit affirmed the lower court’s ruling that permanently enjoined Louisiana’s “partial-birth abortion” ban. The lower court held that the ban created an undue burden because it lacked a health exception and an adequate life exception, while noting that the ban served no purposed other than to make abortions more difficult.

Michigan: Evans v. Kelley, 977 F. Supp. 1283 (E.D. Mich. 1997); WomanCare of Southfield, P.C. v. Granholm, 143 F. Supp. 2d 849 (E.D. Mich. 2001); Northland Family Planning Clinic, Inc. v. Cox, 394 F. Supp. 2d 978 (E.D. Mich. 2005), affirmed, 487 F.3d 323 (6th Cir. 2007), cert. denied, 552 U.S. 1096 (2008).

In 1997, a federal district court in Detroit declared Michigan’s ban unconstitutional and permanently enjoined its enforcement. The court held the law was unsonstitutionally vague because – with ambiguous and non-medical terminology – physicians “simply cannot know with any degree of confidence” what procedures it bans. The court also struck the law as an “undue burden” on the right of a woman to choose to terminate her pregnancy, because “it would operate to eliminate one of the safest post-first trimester abortion procedures,” D&E, the procedure used in the vast majority of post-first trimester abortions.

Notwithstanding this decision, in 1999, Michigan passed a related but differently worded law. Following the decision in Carhart, the district court held the second Michigan ban unconstitutional of lack of “an adequate exception to protect the mental and/or physical health of the pregnant woman.” The court entered a permanent injunction blocking enforcement of the ban. The State did not appeal.

Undeterred, in 2004, the Michigan legislature passed yet a third ban, this time called the “Legal Birth Definition Act.” This law, broader than Michigan’s first two abortion bans, prohibited even first-trimester abortions. In September 2005, a federal district court granted the plaintiffs’ motion for summary judgment and permanently enjoined the law. The court held that under Carhart, the law was unconstitutional because it contained only a “meaningless” health exception and banned a range of safe abortion procedures. The court struck the ban on the additional grounds that its life exception did not adequately protect women’s lives and that it was vague. After Carhart II, the Sixth Circuit affirmed the district court’s invalidation of the statute, and held that the district court’s determination that the “statue created an unconstitutional undue burden on a woman’s right to terminate her pregnancy … has in no way been undermined by the interim decision in [Carhart II].” The Sixth Circuit found it unnecessary to address the implications of Carhart II for the life and health exceptions of the statues because of its finding that the general prohibition itself was unconstitutional.

Missouri: Reproductive Health Services of Planned Parenthood v. Nixon, No. 99-04231-CV-C-SOW-ECF (W.D. Mo. Sept. 22, 1999), stay granted, No. 00-1310WMKC (8th Cir. Mar 23, 2000); State v. Reproductive Health Services of Planned Parenthood, No. 22004-00008 (Mo. Cir. Ct. Dec. 5, 2000), modified, 97 S.W.3d 54 (Mo. Ct. App. 2002), cert. denied, SC 85051 (Mo. Mar. 4, 2003), Reproductive Health Services of Planned Parenthood v. Nixon, 325 F. Supp. 2d 991 (W.D. Mo. 2004), affirmed, 429 F.3d 803 (8th Cir. 2005), cert granted, judgment vacated, 550 U.S. 901 (2007), injunction vacated, No. 04-2908 (8th Cir. 2007), dismissed by No. 99-04321-CV-C-SOW (W.D. Mo. 2007).

In 1999, a federal trial court issued a temporary restraining order blocking enforcement of Missouri’s ban. Subsequently, Missouri went to state court in an attempt to overcome the constitutional deficiencies of the law by having the ban narrowly construed. The federal court proceedings were stayed pending the outcome of the state court case. The lower state court held that although a health exception was not explicitly in the text of the law, such an exception could be read into the statute. This determination was reversed by a state appeals court and the temporary restraining order remained in effect. The Missouri Supreme Court denied further review in the state case, and the U.S. proceedings. In 2004, a federal trial court granted plaintiffs’ motion for summary judgment, holding that the ban is unconstitutional for lack of a health exception. IN 2005 the U.S. Court of Appeals for the Eighth Circuit affirmed that decision.

After upholding the federal abortion ban in Carhart II, the Supreme Court vacated the Eighth Circuit decision and remanded the injunction for consideration in light of Carhart II. On remand, the Eighth Circuit vacated the injunction, and the ban remains in effect.

Montana: Intermountain Planned Parenthood v. State, No. BDV 97-477 (Mont. Dist. Ct. June 29, 2998); Intermountain Planned Parenthood v. State, No. ADV 9900561 (Mont. Dist. Ct. March 21, 2000).

A state district court permanently enjoined Montana’s “partial-birth abortion” ban. The court found that the statute “has the effect of banning D&E abortion procedures,” which are used in 88 percent of second-trimester abortions in the state, and would thus “reduce a woman’s access to abortion services, and increase the amount of risk and pain to the woman.”

Following this ruling, the state passed an amended version of the ban. The state district court issued a temporary restraining order against enforcement of the amended law. Later, based on an agreement between the parties, the court issued a permanent injunction limiting the amended ban to apply only to a narrowly defined procedure when used after fetal viability.

Nebraska: Stenberg v. Carhart, 530 U.S. 914 (2000), affirming, 192 F.3d 1142 (8th Cir. 1999), affirming, 11 F. Supp. 2d 1099 (D. Neb. 1998).

In 2000, affirming a permanent injunction that the 8th Circuit had also upheld, the United States Supreme Court held Nebraska’s “partial-birth abortion” ban unconstitutional on two independent grounds, either of which alone would have been sufficient to strike down the law: 1) the ban’s failure to include a health exception threatened women’s health, and 2) the ban’s language encompassed the most common method of second-trimester abortion, thereby imposing an undue burden on women seeking abortions.

For a more in-depth discussion of the Supreme Court’s decision, see Stenberg v. Carhart: A Legal Analysis available online at https://www.aclu.org/reproductiverights/abortionbans/12513res20000701.html

New Jersey: Planned Parenthood of Central New Jersey v. Verniero, 41 F. Supp. 2d 478 (D.N.J. 1998), affirmed sub nom. Planned Parenthood of Central New Jersey v. Farmer, 220 F.3d 127 (3rd Cir. 2000).

Following the decision in Carhart, the U.S. Court of Appeals for the Third Circuit affirmed the lower court’s ruling that permanently enjoined New Jersey’s “partial-birth abortion” ban. The Third Circuit held that the ban was constitutionally impermissible because it was “so vague as to encompass almost all forms of abortion.” Moreover, it held that the ban posed an undue burden because it would chill physicians from performing the “safest, most common and readily available conventional pre- and post-viability abortion procedures” including, “suction and curettage, D&E and induction abortions.”

Ohio: Women’s Medical Professional Corp. v Vionovich, 911 F. Supp. 1051 (S.D. Ohio 1995), affirmed, 130 F.3d 187 (6th Cir. 1997), cert. denied, 523 U.S. 1036 (1998); Women’s Medical Professional Corp. v. Taft, 162 F. Supp. 2d 929 (S.D. Ohio 2001), reversed, 353 F3d 436 (6th Cir. 2003), petition for rehearing en banc denied, No. 01-4124, 2004 U.S. App. LEXIS 7791 (6th Cir. Apr. 1, 2004).

In 1997, the U.S. Court of Appeals for the Sixth Circuit affirmed the district court order permanently enjoining an Ohio law that banned “dilation and extraction.” In affirming the decision, the Sixth Circuit held that the law created an undue burden by, in effect, prohibiting pre-viability D&E procedures and “because it does not allow post-viability abortions where necessary” to preserve the woman’s mental health. The U.S. Supreme Court declined to review the case.

Following the decision in Carhart, Ohio passed a second abortion ban. A federal district court initially issued a permanent injunction blocking its enforcement. In 2003, however, a Sixth Circuit panel upheld the ban, finding the ban’s narrow health exception sufficient because it permits physicians to perform the banned abortions when necessary to protect women from significant health risks, including when such abortions would be safer than other methods. The court also relied strongly on the fact that the law explicitly excluded D&E from its reach. The plaintiffs request the full Sixth Circuit (as distinct from a three-judge panel) to rehear the case. However, the Sixth Circuit denied this request. The plaintiffs did not seed further review by the U.S. Supreme Court.

Rhode Island: Rhode Island Medical Society v. Whitehouse, 66 F. Supp. 2d 288 (D.R.I. 1999), affirmed, 239 F.3d 104 (1st Cir. 2001).

A federal district court invalidated and permanently enjoined Rhode Island’s ban, holding that the law is “vague and does not provide doctors with sufficient guidance to know what the Legislature has made illegal.” In addition, the court concluded, that the law’s terms described, and impermissibly banned, the most commonly used second-trimester abortion method, D&E. The court also struck down the ban because it lacked a health exception and an adequate life exception.

The Governor of Rhode Island pursued an appeal in the U.S. Court of Appeals for the First Circuit even after the decision in Carhart. The Governor argued the injunction should not apply to post-viability abortions. The First Circuit rejected this argument and affirmed the district court’s judgment invalidating the ban in its entirety.

Utah: Utah Women’s Clinic v. Walker, No. 2:04CV00408 PGC (D. Utah June 10, 2004) (order granting preliminary injunction); Utah Women’s Clinic v. Walker, No. 2:04CV00408 PGC (D. Utah May 31, 2007) (order lifting injunction).

In June 2004, a federal district court issued a preliminary injunction to block enforcement of Utah’s law prohibiting so-called “partial-birth abortions.” The Utah law endangers women because it lacks a health exception and contains broad wording that bans safe abortions early in pregnancy.

After Carhart II¸ the federal district court lifted the injunction and dismissed the case. The court found that the Utah law mirrored the federal statute upheld by the Supreme Court and thus upheld the ban as constitutional.

Virginia: Richmond Medical Center for Women v. Gilmore, 11 F. Supp. 2d 795 (E.D. Va 1998) (preliminary injunction), stayed, 144 F.3d 326 (4th Cir. 1998), stay lifted, 183 F.3d 303 (4th Cir. 1998), 55 F. Supp. 2d 441 (E.D. Va. 1999) (permanent injunction), stayed, No. 98-1930 (4th Cir. Sept. 14, 1999), stay lifted, 219 F.3d 376 (4th Cir. 2000), affirmed, 224 F.3d 337 (4th Cir. 2000); Richmond Medical Center for Women v. Hicks, 301 F. Supp. 2d 499 (E.D. Va. 2004), affirmed, 409 F.3d 619 (4th Cir 2005), petition for rehearing denied, 422 F.3d 160 (4th Cir. 2005), cert. granted, judgment vacated, Herring v. Richmond Medical Center for Women, 127 S.Ct. 2094 (2007), remanded to 527 F.3d 128 (4th Cir. 2008), reversed en banc, 570 F.3d 165 (4th Cir. 2009).

In Virginia’s first attempt to ban safe abortions, a federal district court issued a permanent injunction to stop enforcement of Virginia’s “partial-birth abortion” ban. In permanently enjoining the act, the district court held that 1) the act created an undue burden because its plain language prohibited many common pre-viability D&E procedures, 2) the act was unconstitutional because it lacked a health exception and had an inadequate life exception, and 3) the act was void for vagueness. The U.S. Court of Appeals for the Fourth Circuit initially stayed the permanent injunction pending appeal. After the Supreme Court issued its ruling in Carhart, however, the Fourth Circuit lifted the stay and affirmed the district court’s judgment invalidating the ban.

In spite of the Fourth Circuit’s decision, Virginia enacted a second law banning so-called “partial-birth infanticide.” Although its wording is different, this second law suffers from the same flaws. Based on the Carhart decision, the district court struck the law because it contained no exception to protect women’s health, contained only an inadequate exception to protect their lives, and its “plain language” would ban “pre-viability D&Es” and thus impose “an impermissible undue burden on the constitutional right to choose an abortion.” The Fourth Circuit affirmed, and denied a motion for a rehearing. The Supreme Court granted certiorari and vacated the judgment, remanding for further reconsideration in light of Carhart II. On remand, the Fourth Circuit affirmed that the Virginia ban was still unconstitutional under Carhart II because the act “lacks the intent and distinct overt act requirements that were central to the Supreme Court’s decision.” Unlike the federal act, the Virginia act criminalized all “intact D&Es,” even if the physician had intended to perform another, lawful abortion procedure. The act thereby imposed an undue burden on a woman’s right to obtain an abortion. The State appealed, and the Fourth Circuit reversed the panel decision en banc. The court held that the facial challenge to the ban failed to “present a sufficiently frequent circumstance to render the Virginia act wholly unconstitutional.” Moreover, the ban’s scienter language provided sufficient notice of the prohibited conduct to doctors, and other safeguards in the ban prevent it from “creating a barrier to” or chilling a woman’s right to a “standard D&E.”

West Virginia: Daniel v. Underwood, 102 F. Supp. 2d 680 (S.D. W. Va. 2000).

Following the decision in Carhart, a federal district court issued a permanent injunction against enforcement of West Virginia’s ban. The court held the ban unconstitutional because it: 1) “fails to provide an exception for the preservation of the health of the woman” and 2) “prohibits D&E, in addition to D&X [dilation and extraction] and therefore violates the ‘undue burden’ principle.”

Wisconsin: Planned Parenthood of Wisconsin v. Doyle, 9 F. Supp. 2d 1033 (W.D. Wis. 1998) (denying preliminary injunction), reversed, 162 F.3d 463 (7th Cir. 1998), remanded, 44 F. Supp 2d 975 (W.D. Wis. 1999) (denying permanent injunction), vacated by Hope Clinic v. Ryan, 195 F.3d 857 (7th Cir. 1999), (en banc) (remanding in favor of defendants), stay denied, 197 F.3d 876 (7th Cir. 1999), vacated and remanded, 530 U.S. 1271 (2000), 249 F.3d 603 (7th Cir. 2001).

A panel of the U.S Court of Appeals for the Seventh Circuit preliminarily enjoined Wisconsin’s “partial-birth abortion” ban after a federal district court refused to issue emergency relief. On remand, however, the district court again declined to issue an injunction but stayed its ruling pending an appeal to the Seventh Circuit. The Seventh Circuit heard the case (along with the appeal of the decision enjoining Illinois’s ban, see above). Initially, a narrow majority of the court, sitting en banc, upheld the Wisconsin law. The 5-4 decision was issued over a vigorous dissent written by the chief justice. Finally, after the Supreme Court issued the decision in Carhart, the Seventh Circuit held the Wisconsin ban was unconstitutional and permanently enjoined its enforcement.

February 2012

For more information, call (212) 549-2633 or visit www.aclu.org/reproductiverights.

(1) AL, AK, AZ, AR, FL, GA, ID, IL, IN, IA, KS, KY, LA, MI, MS, MO, MT, NE, NJ, NM, ND, OH, OK, RI, SC, SD, TN, UT, VA, WV, WI
(2) AL, AK, AZ, AR, FL, ID, IL, IA, KY, LA, MI, MO, MT, NE, NJ, OH, RI, VA, VW, WI. Before Carhart II, in Montana and Ohio, the states enacted subsequent bans, which were challenged and upheld on limited grounds. After Carhart II, bans mirroring the federal ban were also upheld in Missouri and Utah, and a ban in VA also survived a court challenge. See, summary of court decisions by state, below.
(3) IN, MS, MT, NM, OK, SC, SD, TN

(4) AZ, AR, KS, LA, MI, ND, OH, UT, VA