State Trends: Sex Ed, Family Planning and Fetal Personhood Dominate

Although state legislatures are heavily focused on responding to the current economic crisis, numerous bills on reproductive health have also been the subject of debate and action.

Although state legislatures are heavily focused on responding to the current economic crisis, numerous bills on reproductive health have also been the subject of debate and action. In the first half of 2009, 875 measures related to reproductive health were introduced in the 50 states and DC, and a total of 33 laws in 27 states were enacted. Three significant trends have emerged, in the areas of sex education, funding for family planning services and the efforts to recognize a fetus as a person. 

Sex Education

Sex education continues to garner significant attention at the state level, with 80 bills having been introduced in 28 states. So far this year, three states (Hawaii, North Carolina and Oregon) have enacted legislation to promote comprehensive sex education. In May, the Hawaii legislature adopted a measure requiring sex education to include discussion of both abstinence and contraception. The measure  also requires that sex education in the state be medically accurate and age-appropriate. After a prolonged delay, Gov. Linda Lingle (R) vetoed the bill in early July, but was promptly overridden by the legislature.

In North Carolina, Gov. Beverly Perdue (D) signed a measure expanding the state’s current sex education mandate to require inclusion of information on contraception and STIs. The measure also requires that all sex education be medically accurate and age appropriate. At the same time, however, the measure left in place the existing requirement that sex education also meet the federal eight-point abstinence definition (which requires, among other things, that the “exclusive purpose” of sex education is to teach the benefits of abstinence and that programs stress that sex outside of marriage has negative consequences).These newly enacted provisions and current abstinence education requirements are seemingly incompatible, which raises important questions about implementation of the revised law.

Enactment of these measures brings to 17 the number of states that require information about contraception to be included in their sex education programs <> . Meanwhile, a new Oregon law codifies existing state regulations that all sex education in the state be medically accurate. It also softens the existing requirement that abstinence be taught as the “safest and most responsible sexual behavior.” The new law requires that abstinence be portrayed as “the most effective way” to prevent pregnancy and STIs.

Family Planning Funding

Just about every aspect of state budgets has come under intense scrutiny this year. In three states, reproductive health advocates appear to have been able to deflect proposed spending reductions, while in four states, programs are likely to be substantially cut.

California is facing a severe budget crisis, with the state’s shortfall estimated to top $26 billion. As part of his plan to close the gap, Gov. Arnold Schwarzenegger (R) had proposed reducing provider reimbursement under the state’s Medicaid family planning expansion by nearly $37 million. However, with a deal finally in place, it appears that the family planning rate cut is not part of the package. In Iowa, two competing provisions of the budget approved by the legislature essentially leave family planning funding untouched. The original version of the budget included a 30% cut, reducing funding by $850,000. Although that provision remained in the budget, a second one was added that increased Medicaid reimbursement for family planning, effectively offsetting the initial provision. In Minnesota, legislators defeated an attempt to slash family planning funding by 20% and to cut the Medicaid reimbursement rate for family planning providers by 3%.

At the same time, budgets in three states (Massachusetts, Montana and Washington) significantly reduce family planning funding levels. The budget in Massachusetts instituted a funding cut approaching 20%, while cuts in Montana and Washington totaled 85% and 10% respectively. A fourth state, Michigan, has yet to approve a final budget, but appears to be on track for a substantial reduction in family planning funding.

Campaign to Recognize a Fetus as a Person

Over the course of this legislative year, abortion opponents have used two distinct strategies in their attempts to build on earlier efforts in Colorado and South Dakota to establish fetal personhood.

The first approach is patterned after a ballot initiative defeated in Colorado in November 2008 that would have amended the state constitution to confer personhood on a fetus at the moment of conception, thereby setting the stage to ban abortion and even most contraception. Legislators introduced similar measures in six states this year. In three states (Georgia, Maryland and Montana), the measures sought to amend the state constitution, while those in two states (Alabama and South Carolina) took aim only at state law. The North Dakota measure would have done both. Although none of the measures was enacted, bills were approved by one legislative chamber in Montana and North Dakota.

The second approach builds on a 2005 South Dakota law that requires a provider to inform a woman, as part of state-mandated abortion counseling, that the procedure “will terminate the life of a whole, separate, unique, living human being.” Legislators in four states (Indiana, Kansas, Missouri and North Dakota) introduced similar measures this year. Two of these measures secured legislative approval and made it to governors’ desks. The North Dakota bill was signed into law in April by Gov. John Hoeven (R). In Kansas, then-Gov. Kathleen Sebelius (D) vetoed the measure shortly before leaving to become Secretary of the Department of Health and Human Services, and the legislature sustained the veto. The Indiana and Missouri measures were each approved by one chamber before the legislatures adjourned for the year.

Meanwhile, abortion opponents are already looking beyond 2009. In Colorado and Montana, they have announced plans for a ballot initiative in 2010. In Mississippi and Oregon, they have been given the green light by the secretary of state to begin collecting signatures for a 2010 ballot initiative. All four of these proposals are similar to the Colorado 2008 initiative and would establish personhood at the moment of conception in the state constitution.
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Major state legislative actions so far in 2009
Legislation enacted in 2009
The status of state law and policy on key reproductive health and rights issues